An order under the Hindu Marriage Act, though called a decree, is appealable as an order.

1. This is an appeal by the wife under Sec.28 of the Hindu Marriage Act, Act XXV of 1955, (hereinafter to be referred to as the Act) against an order of judicial separation passed Under Sec.10 (1) of the Act. The petition was for decree for divorce under Sec.13 of the Act. That prayer has been disallowed by the Court below. Hence the husband respondent has also filed a cross-objection. The order for judicial separation has been passed both on the grounds of unchastity of the wife and desertion of the husband by her. It may be Stated here that an adjournment was granted to the appellant in the Court below subject to the payment of a cost of Rs. 100. As she did not pay the cost the case was taken up for ex parte hearing and the order passed is an ex parte one.

2. When the matter was taken up for hearing by a learned single Judge of this Court a preliminary objection was taken on behalf of the respondent that as the memorandum of appeal was not accompanied by a copy of the decree which was prepared in the court below the appeal was not maintainable. In the opinion of the learned Single Judge the question raised was of importance as there was no Bench decision of this Court on the point. He therefore, referred the matter to a Division Bench. Unfortunately the Bench decision of this Court in Antalal Gope v. Smt. Sarbo Gopain, AIR 1962 Pat 489 was not brought to the notice of the learned Single Judge.

In that case it has been held that the word "decree" in Sec.13 or in any other Section of the Act is not used in the same sense as the word has been defined in the Code of Civil Procedure and that the word has been used in its dictionary sense that is to say, in the sense of a decision or an edict. The Bench has further held that a miscellaneous appeal is maintainable against an order passed under Sec.13 or 10 of the Act and the Court fee payable on such an appeal is as contemplated under Article 11 of Schedule II of the Court Fees Act. Article 11 of Schedule II of the Court Fees Act provides for Court-fee on memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. The Bench, therefore, held in that case that an order under the Hindu Marriage Act though it was called a decree under the Act was appealable as an order. In view of the Bench decision there is no substance in the preliminary objection.

3. Our attention was drawn by learned counsel for the respondent to a recent decision of a learned single Judge of this Court in Bankim Chandra Roy V/s. Smt. Anjali Roy, 1971 Pat LJR 309 = (AIR 1972 Pat 80). In that decision the question has not been expressly decided. Further the aforesaid decision in Antalal Copes case, AIR 1962 Pat 489 was also not cited before the learned Judge. The decision in Anta Lal Gope s case being a Bench decision is binding on us and as at present advised we do not find any reason to take a view different from one taken in it.

4. On merits of the appeal Mr. S. C. Ghosh appearing for the appellant has raised the following contentions: Firstly, he has submitted that the Court below having not attempted to bring about a reconciliation between the parties as was its duty under Sec.23 (2) of the Act, its order is wrong. We are not inclined to agree with the contention of the learned counsel for the appellant that for the failure on the part of the court to endeavour to bring about a reconciliation between the parties, its order is without jurisdiction. With respect we think that the view taken by a Bench of the Mysore High Court in Jivubai V/s. Ningappa Adriashappa Yadwad, AIR 1963 Mys 3, that failure on the part of the trial court to make endeavour to bring about reconciliation does not affect its jurisdiction to try the case and endeavour can also be made by the appellate Court is correct. In these circumstances we would not have allowed the appeal on this ground, rather we would have ourselves called upon the parties to appear before us in person and attempted to br