A decree of divorce under the Hindu Marriage Act is not a decree as defined in the Code of Civil Procedure and an appeal against such a decree is not an appeal from an original decree. A claim for damages in a petition for divorce under the Hindu Marriage Act is not an incidental relief but a money claim.

1. This matter has come before us in the following circumstances. One Antalal Gope alias Antilal Gope filed an application under Sec.13 of the Hindu Marriage Act for a decree of divorce against Sarbo Gopain and impleaded another person as a co-respondent on the allegation that he had committed adultery with respondent No.1, the applicants wife. In that application, he had also asked for a damage of Rs.500/- against respondent No.2. His application failed so far as both the reliefs were concerned, and he has preferred an appeal to this Court, which has been numbered as First Appeal No.228 of 1961.

2. The Stamp Reporter of this Court pointed out that, on the memorandum of appeal, the appellant was to pay a court-fee of Rs.22.50 under Article 17 (vi) of Schedule II of the Court-fees Act so far as the relief of divorce was concerned. He was also of the view that the same court-fee was payable on the original application. Further, he pointed out that there was a claim for damages in the original application as well as in the present appeal, and so it was a matter for consideration whether any additional court-fee was payable for that. The whole case came before Sahai, J. , as the Taxing Judge, after the Taxing Officer of this Court had expressed his own opinion on the stamp-report His Lordship has referred this matter to a Division Bench for determination ct the questions involved. On the question whether a fixed court-fee of Rs.22.50 was payable on the memorandum of appeal, His Lordship considered some of the decisions of this Court as well as some other High Court in that connection, and he seems to have differed from the view taken in Srikant Chand V/s. Ram Mohini AIR 1959 Pat 186.

3. The Hindu Marriage Act, 1955 (Act No.23 of 1955), provides under Sec.13 as follows :

" (1) any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-- (i) is living in adultery : etc".

Sec.28 of the Act provides that-

"all decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decree and orders of the court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force; provided that there shall be no appeal on the subject of costs only".

The question for consideration, is whether "a decree of divorce" contemplated under Sec.13 will be treated as a "decree", as defined in Sec.2 (2) of the Code ; of Civil Procedure, and, if that is so, then the appeal preferred against that will have to be treated as an appeal from an original decree. In some other sections of the Act, the word "decree" has also been mentioned, such as, "a decree for judicial separation" in Sec.10. Sec.28, however, refers not only to "decrees" under the Act but also to orders passed by the Court in any proceeding under the Act. If the word "a decree for divorce" or "a decree for judicial separation" was used in the Act in the sense of a "decree", as defined in the Code of Civil Procedure, then there was no necessity to provide in Sec.28 to the effect that such decrees :

"shall be enforced in like manner as the decree. . . of the court made in the exercise of the original civil jurisdiction are enforced".

The inclusion of these words clearly indicates that the Legislature did not use the word "decree" in Sec.13 or any other Section in the same sense as the word has been defined in the Code of Civil Procedure. To us, it appears that the word has been used in its dictionary sense that is to say, in the sense of a decision or an edict.

4. The Act provides under Sec.21 that:

"all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil of Procedure, 1908";

that is to say, the procedure to be adopted by the Court, in dealing with such proceedings, will be akin to that prov