( 1 ) THIS appeal raises a rather difficult question relating to construction of sec. 28 of the Hindu Marriage Act 1955 Some three years back this Court had occasion to observe in regard to this Act that it is a piece of legislation which is not noted for accurate or artistic draftsmanship and this is yet another occasion where we are constrained to make the same observation. The question of construction which arises is whether there is a right of second appeal from a decree passed by the District Court in appeal from a decree passed by the Civil Judge Senior Division in a proceeding for judicial separation under sec. 10 of the Act. The question is a question of some importance because the effect of its decision would not be confined merely to a proceeding for judicial separation under sec. 10 but would extend also to other proceedings under the Act. The appellant who is the original plaintiff filed a petition against the respondent her husband who is the original defendant for judicial separation under sec. 10 on two grounds namely (1) that the respondent had deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; and (2) that the respondent had treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. The petition was filed in the Court of the Civil Judge Senior Division Broach since a notification had been issued by the State Government specifying the Court of the Civil Judge Senior Division Broach as the Court having jurisdiction in respect of the matters dealt with in the Act as provided in sec. 3 (b) of the Act. The learned trial Judge on a consideration of the evidence held that the respondent had deserted the petitioner since July 1952 and thaw the petitioner was entitled to obtain a decree for judicial separation. So far as the ground of cruelty was concerned the learned trial Judge held that cruelty was not established but this finding did not affect the petitioner since the learned trial Judge held that the petitioner was entitled to obtain a decree for judicial separation on the ground of desertion. The respondent thereupon preferred an appeal in the District Court Broach. The learned District Judge on an appreciation of the evidence took the view that neither desertion nor cruelty were established by the petitioner and in that view of the matter the learned District Judge allowed the appeal and dismissed the suit with costs. The appellant thereupon preferred the present Second Appeal to this Court.

( 2 ) WHEN the appeal first came up for hearing before Diwan J. sitting as a single Judge a preliminary objection against the maintainability of the appeal was raised on behalf of the respondent. The contention was that there was no right of second appeal against a decree passed in appeal by the District Court and that the appeal preferred by the appellant was therefore not competent. This contention was disputed on behalf of the appellant who maintained that not only was a second appeal competent but that it was much wider in scope in that it did not suffer from any of the limitations imposed by sec. 100 of the Code of Civil Procedure and that it lay not only on questions of law but also on questions of fact. Since these rival contentions raised a rather important question which depended for its determination to a large extent on the true construction of sec. 28 of the Act Divan J. referred the matter to a Division Bench and that is how the appeal has come up before us for hearing.

( 3 ) WE have already briefly set out the respective contentions of the parties showing how the question arises before us but it is necessary at this stage to indicate a little more elaborately the lines followed by the arguments in support of the respective contentions. So far as the respondent is concerned it was c