JUDGMENT :

This appeal has been directed against the judgment and decree dated 10.01.2018 passed by the Subordinate Judge, Gingee in H.M.O.P. No.32 of 2017 wherein the prayer for granting divorce was dismissed.

2. Learned counsel appearing for the appellant submitted that the appellant and the respondent got married on 15.02.2013 at Gingee Town as per Hindu rights and customs and thereafter, the appellant filed H.M.O.P. No.32 of 2017 on the file of the Sub Court, Gingee seeking divorce. Aggrieved by the impugned judgment and decree the appellant has filed this Appeal before this Court.

3. It is seen from records that during the pendency, the respondent wife has filed a memo dated 01.02.2021 raising a preliminary objection on the maintainability of the appeal stating that as against the decree passed by the Sub Judge, Gingee, the statutory appeal remedy would be available to the parties concerned under Section 28 of the Hindu Marriage Act, 1955 only before the District Court of the concerned jurisdiction, hence the appellant has no right to file an Appeal before this Court under Section 19 of the Family Courts Act, 1984. It is useful to refer Section 28 of the Hindu Marriage Act, 1955 and Section 19 of the Family Courts Act, 1984 as under:

'19. Appeal-

(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law...'

28. Appeals from decrees and orders – (1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this Section on the subject of costs only.

(4) Every appeal under this Section shall be preferred within a period of ninety days from the date of the decree or order.'

4. In the present case, the appellant husband has filed the above H.M.O.P. No.32 of 2017 before the Sub Court, Gingee and the same was dismissed on 10.01.2018 by the Sub Court, Gingee. Since the appeal remedy would be available to the parties concerned under Section 28 of the Hindu Marriage Act, 1955 only before the District Court of the concerned jurisdiction, the appellant cannot file this Appeal before this Court under Section 19 of the Family Courts Act, 1984.

5. A careful reading of Section 28 of the Hindu Marriage Act dealing with the appeals from decrees and orders passed by the original civil jurisdiction clearly shows that all decrees made by the Court in any proceeding under this Act shall be appealable, to which the appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction, except on the subject of costs. In the instant case, the Sub-Court, Gingee, has dismissed the divorce petition, therefore, the appeal provisions under Section 28 of the Act will govern the situation and thus, we are of the considered view that the appeal will lie only before the District Court as against the judgment and decree passed by the Sub-Court.

6. At this juncture, learned counsel appearing for the appellant requested this Court to transfer the matter to the District Court, Villupuram, since the respondent already remained exparte before the Tr