R.G. Vaidyanatha, J.@mdashThis is the husband''s appeal against the judgment dated 26.11.1991 in Marriage Petition No. 31 of 1988 on the file of II Joint Civil Judge, Senior Division, Thane. Today, the appeal is taken up for final hearing. None appeared for the appellant. Heard Mr. B.J. Mulchandani, the learned Counsel appearing for respondent.
2. The appellant-husband filed a petition for declaration that marriage between him and the respondent as nullity and alternatively for divorce. His case was that his consent for marriage was taken without disclosing that the respondent was suffering from T.B. and thereby fraud has been committed in obtaining his consent. He, therefore wants the marriage to be declared a nullity. Then he also alleged mental cruelty and desertion on the part of the wife and on these two grounds he wanted the decree for divorce.
Respondent-wife appeared in the Trial Court and contested the proceedings by filing written statement.
After framing appropriate issues and after trial, the learned Trial Court dismissed the petition. Being aggrieved by that order, the appellant has come up with the present appeal.
3. Since the appellant and Counsel are absent, I cannot and need not go into the question of merits of the matter. However, the learned Counsel for the respondent raised a preliminary objection that the appeal is not maintainable in this Court and the appeal should have been filed in the Court of District Judge, Thane. He referred to two authorities on this point.
4. The judgment in this case was delivered by the Civil Judge, Senior Division, under the Bombay City Civil Court Act; normally, the appeal from a judgment or order by the Civil Judge, Senior Division, lies to the District Court of the particular district. But in the present case, the appeal has been filed directly in the High Court. The question is whether the appeal is maintainable in this Court or not.
5. The matter is no longer res Integra and is covered by two direct authorities on the point rendered by the two Division Benches of this Court.
In AIR 1960 Bombay 521, Ambi Pundalik v. Pundalik, it was a case where the judgment in a marriage case was delivered by the Additional District Judge and appeal was filed in the Court of the District Judge. Though the office raised an objection that the appeal is not maintainable, the learned District Judge held that the appeal is maintainable. That order was challenged before this Court, by way of revision petition, this Court held that the appeal from Additional District Judge will not lie to the District Judge but directly to the High Court. He explained that the District Judge and Additional District Judge constitute one and the same Court. Then in the penultimate para of the judgment, the High Court expressed the view that the matter would have been different if the marriage case has been tried by a Civil Judge, Senior Division in which case, the appeal lies to the District Judge.
Then we have a direct authority on the point which is reported in AIR 1960 Bom. 42, Gangadhar v. Manjulal. In that case, the judgment in the marriage case was given by Civil Judge, Senior Division and the appeal was directly filed in the High Court, as in the present case. After analysing the legal position, the Division Bench held that an appeal from the order passed by the Civil Judge, Senior Division, does not lie to the High Court directly, but the appeal should be filed in the Court of the District Judge. Accordingly, it was held that the appeal was not maintainable and the appeal came to be returned to the appellant for presentation to the proper Court.
6. In view of the legal position explained by two Division Benches of this Court, and in view of the provision of the Hindu Marriage Act and the Bombay City Civil Court, there is no difficulty to hold that the present appeal filed against the judgment of the Civil Judge, Senior Division is not maintainable in this Court. The appeal should be filed in the Court of District Judge, at Thane. The proper course is to direct the return of the appeal memo to the appellant for presentation to proper Court. The learned Counsel for the respondent fairly submitted that he will not press the question of limitation if the appeal is represented in the District Court within four weeks from today.
7. In the result, it is held that the present appeal is not maintainable and accordingly the Appeal Memo be returned to the appellant for presentation to proper Court viz., the District Judge, Thane. The appellant is granted four weeks time to represent the appeal in the Court of District Judge at Thane. If the appeal is represented within four weeks from today, then the respondent''s Counsel submitted that he will not raise the question of limitation.
In the circumstances of the case, there will be no order as to costs of the appeal.
Certified copy of this judgment be issued expeditiously.
