M.Y.EQBAL, J. - (1.) THE instant appeal has been filed against the judgment and decree dated 9.6.2006 passed by District Judge, Palamau at Daltonganj in Matrimonial Case No. 3 of 2004 whereby a petition for divorce filed by the appellant under Section 13( 1 )(ib) of the Hindu Marriage Apt has been dismissed.
(2.) AS per Jharkhand High Court Rules these appeals were placed for hearing before a learned Single Judge. Taking notice of the provisions of Section 19(6) of the Family Courts Act the learned Single Judge, by order dated 31.7.2008, referred the matter to the Division Bench for deciding the question as to whether an appeal filed under Section 28 of the Hindu Marriage Act is to be heard by a Division Bench or a Single Judge. The order dated 31.7.2008 reads as under: - "Mr. V. Shivnath appearing for the appellant submitted that only because Family Court is not constituted in some districts, an anomalous position has arisen. From the judgments passed by the Family Courts arising out of the suits under the Hindu Marriage Act, appeal lies before the Division Bench as per Section 19(6) of the Family Courts Act read with Rule 34(3)(c) of the Jharkhand High Court Rules. Whereas from the judgments passed in the suits arising out of the Hindu Marriage Act, by the District Judge, where the Family Courts have not been constituted, the appeal is listed before the Single Judge. The period prescribed for filing appeal is also different i.e. 30 days and 90 days. He further submitted that the intention behind enactment of the Family Courts Act is that the matrimonial disputes be decided expeditiously which will appear from the curtailment of period of limitation and an extra forum of appeal before the Single Judge. Learned members of the Bar submitted that there is no authoritative decision on this point. In the circumstance, let this appeal be placed before appropriate Division Bench to decide the following question "whether an appeal filed under Section 28 of the Hindu Marriage Act is to be heard by a Division Bench or learned Single Judge" As prayed for, let FA No. 18 of 2005 be also listed with this appeal." Hence this appeal has been placed before this Bench for deciding the question with regard to anomaly existing in between the provisions of Section 19 of the Family Courts Act and Section 28 of the Hindu Marriage Act vis -a -vis Rule 34(3)(c) of the Jharkhand High Court Rules.
(3.) HINDU Marriage Act, 1955 was enacted by the Parliament which amended and codified Hindu Law relating to marriage among Hindus. The Act was extended to the whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories. Section 9 of the Act deals with restitution of conjugal right. According to this Section, either the husband or wife has been given right to make an application to the District. Court for restitution of conjugal right on the ground that either of the two, without reasonable excuse withdraw from the society of the other. Section 10 of the Act also gives right to either party to present a petition to the District Court for a decree of judicial separation on any of the grounds specified in sub -sections (1) and (2) of Section 13 of the Act. Section 13 deals with the right of the parties to make an application for a decree of divorce on various grounds enumerated therein.;