- (1.) THIS is a revision of the husband against the judgment of the Dis trict Judge, Aligarh. The applicant had filed an application for divorce under Section 13 of the Hindu Marriage Act and in the alternative for judicial separation on the ground of desertion, cruel treatment, callous behaviour of the opposite party and leading an immoral and adulterous life. Opposite party contested the appli cation. The application was decided by the Judge Small Causes Court, Aligarh and was dismissed. An appeal was filed against the judgment of the trial Court. Learned District Judge converted the appeal into revision holding that the appeal was not maintainable. Learned District Judge, however, disposed of the revision on merit and dismissed the revision. Hence this revision by the husband.
(2.) FIRST contention of the learned counsel for the applicant is that the Court below was wrong in holding that no appeal lay. His contention is that Section 28 of the Hindu Marriage Act provides an ap peal from the decree of the trial Court and the power of an appeal provided by the special Act could not be taken away be cause the decision was given by a Judge who was described as Judge Small Causes Court. His further contention is that in spite of a notification under Section 3 (b), of the Hindu Marriage Act conferring power on the trial Court, the Judge Small Causes Court had no jurisdiction to decide the application for divorce, because Arti cle 37 of Schedule II expressly excludes the jurisdiction of the Court of Small Cau ses from trying a suit for a divorce. Sec tion 3 (b) of the Hindu Marriage Act de fines "District Court" in these words; "District Court means, in any area for which there is a City Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other Civil Court which may be specified by the State Government, by notification in the official gazette, as hav ing jurisdiction in respect of the matters dealt within this Act; An application for divorce has to be mov ed on a petition under Section 19 before District Court on the grounds enumerated in Section 13. The State Government under Section 3 (b) is authorised to invest jurisdiction under the Act to any other Civil Court as well. Hindu Marriage Act is self-contained special Act for special purposes. It is not disputed that Judge Small Causes Court who was principally a Civil Judge was invested with the powers of District Court also. Firstly, therefore there is no thing in the Provincial Small Causes Court Act that a Judge Small Causes Court can not be invested with the jurisdiction pro vided in Section 3 (b) of the Hindu Marri age Act. Item 37 of Schedule II of the Provincial Small Causes Courts Act ex cludes the jurisdiction of the Small Causes Court in respect of a suit for restitution of conjugal rights, for custody of a minor or for a divorce. The suit contemplated under the Provincial Small Causes Courts Act means a suit and will not include a petition under Section 10 or 13 of the Hindu Marriage Act. Moreover, as stated earlier Judge Small Causes Court was exercising a special jurisdiction under Section 3 (b) of the Hindu Marriage Act. Merely because the trial Court described himself as Judge Small Causes Court, his order passed in exercise of the special Jurisdiction Court will not be ineffective and without jurisdiction. For the purposes of Hindu Marriage Act the Judge Small Cause Court was a Civil Court and irres-icctive of any provision in the Provincial imall Causes Courts Act an appeal would be maintainable against his order under Section 28 of the Hindu Marriage Act.
(3.) I would have, therefore, allow ed the revision and remanded the appeal for disposal by the lower appellate Court had lower appellate Court not disposed of the revision on merit. From a perusal of the judgment of the learned District Judge it appears that he heard the parties on the findings of fact as well and has confirm ed the finding of the trial Court. I have also been taKen through the record of the case and in my opinion the findings of both the courts below do not suffer from any error of law. I fully agree with the finding of the trial Court and of the lower appellate Court and am of the Opinion that the applicant has miserably failed to substantiate any points raised by him in support of his petition.;