- (1.) THIS is an appeal filed by the husband and arises out of proceedings initiated by him under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) for dissolution of his marriage with the respondent Smt. Kusum Bajpai by a decree of divorce. It was alleged in the petition that the parties had last resided at Kanpur and consequently the court at Kanpur had jurisdiction to entertain the petition. The petition was based mainly on the allegation that the respondent had committed adultery with persons named in paragraphs 9 and 10 thereof. However, those with whom the respondent was alleged to have committed adultery were not impleaded as respondents in the petition. The petition was resisted by the respondent. It was pleaded in defence that the parties had resided together at Lucknow and it was Lucknow court which had jurisdiction and not the court at Kanpur. It was further pleaded that since the appellant had filed his petition for divorce on the ground of adultery but had neither impleaded the alleged adulterers as respondents nor had along with the petition filed a separate application supported by an affidavit as required by Rule 6 (d) of the Rules framed by this Court (hereinafter referred to as the Rules) in exercise of powers under Sections 14 and 21 of the Act giving reasons for his omission to implead as co-respondents the alleged adulterers, the petition was not maintainable and was liable to be rejected. Issues were framed by the trial court. Of the issues framed one was with regard to maintainability of the petition in view of its being in disregard of Rule 6 and the other was as to whether the Kanpur Court had jurisdiction to entertain the petition. These two issues were taken up by the trial court as preliminary issues.
(2.) BEFORE the decision of these issues the appellant filed an application purporting to be under Order 1 Rule 10. Order 6 Rule 17 and Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) praying for permission to amend the petition by impleading the alleged adulterers as co- respondents to the petition. While deciding the issue with regard to the maintainability or otherwise of the petition in view of non-compliance with Rule 6, the trial Court took up the application for amendment of the petition. On the issue of jurisdiction of the Court at Kanpur to entertain the petition, evidence was led by the parties. The trial Court held that the failure of the appellant to have either impleaded the alleged adulterers as co-respondents or in the alternative to have presented along with the petition an application in accordance with Rule 6 (d) of the Rules did not bar the Court from permitting amendment in the pleadings and allowing the alleged adulterers being impleaded as co- respondents subsequently. In this view of the matter, the learned Civil Judge, Kanpur, who tried the petition allowed the application purporting to be under Order 6, Rule 17 read with Order 1, R. 10 and Section 151 of the Code and permitted the appellant to implead the alleged adulterers as co- respondents in the petition. To compensate the respondent for any inconvenience caused to her the application for amendment was allowed on payment of Rs. 25 as costs. Summonses were ordered to be issued to the newly arrayed respondents. The respondent was allowed to file additional written statement. In the view taken by it, the trial court held that Issue No. 6 which related to the maintainability or otherwise of the petition on account of non-compliance with Rule 6 of the Rules had been rendered infructuous. The trial Court consequently struck off that issue. On a consideration of the evidence led, the trial Court held that the parties had last resided together at Kanpur and consequently the court at Kanpur had jurisdiction to entertain the petition. Issue No. 5 which was concerned with the jurisdiction of the Kanpur court to entertain the petition was accordingly decided in favour of the plaintiff. Both these matters were decided by the learned II Civil Judge, Kanpur by the same order on the 12th of September, 1967. Aggrieved by the decision of the trial Court on the two preliminary issues the respondent Smt. Kusum Bajpai filed an appeal which was heard and decided by the learned II Additional District Judger Kanpur, by his judgment and order dated the 3rd of May, 1969. The learned Additional District Judge concurred with the finding recorded by the trial Court on Issue No. 5 and held that the petition presented by the appellant was maintainable in the Court at Kanpur. The decision of the trial Court on the application for amendment of the petition was reversed by the Appellate Court. The learned Additional District Judge took the view that Rules 6 (a) and 6 (d) were mandatory. According to him since the petition was founded on allegations of adultery by the respondent with persons named in the petition it was incumbent for the appellant either to have impleaded as co-respondents the alleged adulterers as required by Rule 6 (a) or to have in the alternative filed along with the petition itself a separate application supported by an affidavit giving reasons for his omission to do so in accordance with Rule 6 (d). The view was taken that the defect in the petition could not be allowed to be rectified subsequently by allowing amendment of the petition. The Court below appears to have taken the view that Order 6, Rule 17 and Order 1, Rule 10 of the Code were inconsistent with Rules 6 (a) and 6 (d) and consequently had no application to proceedings under Section 13 of the Act so as to permit the addition as parties the adulterers at a subsequent stage. In this view of the matter the court below allowed the appeal with costs to the respondent Smt. Kusum Bajpai and set aside the order of the trial Court allowing amendment of the petition and its finding on issue No. 6. The petition under Section 13 of the Act itself was dismissed.
(3.) AGGRIEVED by the order of the court below the husband has appealed. It has been urged that under Section 28 of the Act no appeal lay against the order of the trial Court allowing amendment of the petition by addition of the alleged adulterers as respondents in the petition, and consequently the order of the court below appealed against was without jurisdiction and unsustainable in law. It was contended that against mere findings recorded on preliminary issues in a petition under Section 13 of the Act no appeal is contemplated by the Act. On the other hand learned Counsel for the respondent urged that Section 28 of the Act permits appeals against "all decrees and orders made by the Court in any proceeding under this Act", and since the order passed by the trial Court undisputably was an order in proceedings under Section 13 of the Act, Section 28 of the Act in terms was attracted and the order of trial Court was appealable. On a consideration of Section 28 of the Act I am of the view that the objection taken on behalf of the appellant with regard to the maintainability of the appeal before the tower Appellate Court has substance and must prevail. Section 28 of the Act runs as follows:- "All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from under any law for the time being in force." According to the learned Counsel appearing for the respondent every variety of order, interlocutory or otherwise passed by a Court in any proceeding under the Act is appealable under Section 28 of the Act. This contention, in my opinion, has no merit. It has been held by various courts which had occasion to interpret Section 28 of the Act that it provides a substantive right of appeal to a party to proceedings under the Act and the words "under any law for the time being in force" merely are intended to provide that the forum for an appeal, the jurisdiction of the court entertaining the appeal and the procedure during the appeal shall be in accordance with any other law for the time being in force. This is the view taken by the Calcutta High Court in Smt. Sobhana Sen v. Amar Kanta Sen, AIR 1959 Cal 455; Smt. Anita v. Birendra Chandra, AIR 1962 Cal 88; Rukmanibai v. Kishanlal Ramlal, AIR 1959 Madh Pra 187; Kadia Harilal Purshottam v. Kadia Lilavati Gokhaldas, AIR 1961 Guj 202 and D. S. Seshadri v. Jayalakshmi, AIR 1963 Mad 283. I agree with the view taken in the above mentioned decisions that the right of appeal against decrees or orders passed in proceedings under the Act has to be found in Section 28 of the Act itself and we do not have to look to any other law for that purpose.;