1. This matter has come before us in the following circumstances. One Antalal Gope alias Antilal Gope filed an application under section 13 of the Hindu Marriage Act for a decree of divorce against Sarbo Gopain and impleaded another person as a co-respondent on the allegation that he had committed adultery with respondent No. 1, the applicant's wife. In that application, he had also asked for a damage of Rs. 500/- against respondent No. 2. His application failed so far as both the reliefs were concerned, and he has preferred an appeal to this Court, which has been numbered as First Appeal No. 228 of 1961. The Stamp Reporter of this Court pointed out that, on the memorandum of appeal, the appellant was to pay a court-fee of Rs. 22.50 under article 17(vi) of Schedule 11 of the Court-fees Act so far as the relief of divorce was concerned. He was also of the view that the same court-fee was payable on the original application.
2. Further, he pointed out that there was a claim for damages in the original application as well as in the present appeal, and so it was a matter for consideration whether any additional court-fee was payable for that. The whole case came before Sahai, J., as the Taxing Judge, after the Taxing Officer of this Court had expressed his own opinion on the stamp-report. His Lordship has referred this matter to a Division Bench for determination of the questions involved. On the question whether a fixed court-fee of Rs. 22.50 was payable on the memorandum of appeal, His Lordship considered some of the decisions of this Court as well as some other High Court in that connection, and he seems to have differed from the view taken in Srikant Chand v. Ram Mohini AIR 1959 Pat 186.
3. The Hindu Marriage Act, 1955 (Act No. 25 of 1955), provides under section 13 as follows:
“(1) any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party — (i) is living in adultery: etc.”
4. Section 28 of the Act provides that—
“All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decree and orders of the court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force;
Provided that there shall be no appeal on the subject of costs only”.
5. The question for consideration is whether “a decree of, divorce” contemplated under Section 13 will be treated as a “decree”, as defined in section 2(2) of the Code of Civil Procedure, and, if that is so, then the appeal preferred against that will have to be treated as an appeal, from an original decree. In some other sections of the Act, the word “decree” has also been mentioned, such as, “a decree for judicial separation” in section 10. Section 28, however, refers not only to “decrees” under the Act but also to orders passed by the Court in any proceeding under the Act. If the word “a decree for divorce” or “a decree for judicial separation” was used in the Act in the sense of a “decree”, as defined in the Code of Civil Procedure, then there was no necessity to provide in section 28 to the effect that such decrees
“shall be enforced in like manner as the decree… of the court made in the exercise of the original civil jurisdiction are enforced”.
6. The inclusion of these words clearly indicates that the Legislature did not use the word “decree” in section 13 or any other Section in the same sense as the word has been defined in the Code of Civil Procedure. To us, it appears that the word has been used in its dictionary sense that is to say, in the sense of a decision or an edict.
7. The Act provides under section 21 that
“all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil of Procedure, 1908”;
8. That is to say, the procedure to be adopted by the Court, in dealing with such proceedings, will be akin to that provided for the trial of suits in a Civil Court. But that does not make the proceeding a suit or the application a plaint. We may refer to some other statutes by way of analogy. The Provincial insolvency Act provides for appeal by persons aggrieved by a decision or an order made in the exercise of insolvency jurisdiction by a court to a District Court. That Act also enjoins that the Code of Civil Procedure will be followed as far as possible in the proceedings under that Act. The insolvency petition is required to be in writing, signed and verified in manner prescribed by the Code of Civil Procedure (Section 12).
9. In spite of these provisions, an appeal, if it is taken against the decision of the insolvency court, either to the District Court or to the High Court, is not treated as an appeal from an original decree, and, in no event, any court-fee other than that levied on a miscellaneous appeal is called for. Similarly, an appeal preferred under the Guardians and Wards Act, is treated as a miscellaneous appeal, although, under section 10 of that Act, every application is required to be signed and verified in the manner prescribed by the Code of Civil Procedure for signing and verification of a plaint. Section 47 of that Act provides for appeal to the High Court from an order made by the subordinate court under that Act. In the Hindu Marriage Act, it is also provided under section 20(2) that—
“The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence”.
10. This provision does not refer in terms to the Code of Civil Procedure as far as the verification of plaints is concerned; but that is, undoubtedly, meant by the section.
11. Thus, we see that the provision for making applications under Hindu Marriage Act is in no way different from that provided under the Guardians and Wards Actor the Provincial insolvency Act. The provision for appeals is also made in all the three statutes themselves. In such circumstances, there is no reason why an appeal coming under the Hindu Marriage Act should be treated in a manner different from that adopted for the appeal under the Guardians and Wards Act or the Provincial insolvency Act.
12. Article 11 of Schedule II of the Court-Fees Act provides for
“Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and is presented—
(a) ***
(b) to a High Court…”
13. A fixed court-fee of two rupees, which, according to the Bihar amendment, has now come to six rupees. This Court-fee is levied on all appeals coming under the Guardians and Wards Act or the Provincial insolvency Act. The words “a decree or another order having the force of a decree” have been interpreted in certain decisions — and it is now accepted in the sense — that an order which is executable in the same manner as a decree is not an order having the force of a decree — See Official liquidator, Universal Bank, Ltd. (in liquidation) v. M.U Qureshi, AIR 1945 Lah 146 (FB) and In re Venkataratnam AIR 1941 Mad 639.
14. It appears that the words employed in section 23 were used to indicate the difference between a decree or an order having the force of a decree and a decree or an order which is to be enforced in the like manner as a decree and an order of a Civil Court. Therefore, in our view, article 11 of Schedule II of the Court Fees Act will be applicable to all appeals coming under section 28 of the Hindu Marriage Act, 1953. In this connection, we may refer to the case of Srikant Chand AIR 1959 Pat 186 (supra). That was about the court-fee payable on an application under section 13 of the Hindu Marriage Act in the original Court. Yet, the reason given in that decision in support of the conclusions arrived at will hold good in the present case before us. Their Lordships held that such applications would bear a court-fee as provided for in article 1(b) of Schedule II of the Court Fees Act and not as provided in article 17(vi) of that schedule. If such an application is to be treated not as a plaint, there is no reason why an appeal coming out of that will be treated as one arising out of a decree given by a competent Court on a plaint.
15. A similar view was taken in the case of Karbhari Vithoba…Plaintiff; v. Anusuya Karbhari,…Defendant., AIR 1958 Bom 425 about the court fee payable on a petition for divorce. We are, therefore, of the opinion that the court fee which is chargeable on a memorandum of appeal not arising out of a decree or an order having the force of decree, that is, on an appeal coming within article 11 of Schedule II of the Court Fees Act, will be chargeable to the present case.
16. The other question for consideration is whether the appellant will have to pay additional court fee in regard to the relief of damages for Rs. 500 which he has claimed. Learned counsel contended that, as damages would be by way of an incidental relief arising out of the application for divorce, no special court fee would be payable on that account. The Hindu Marriage Act provides for alimony and maintenance under section 25. There is no provision for damages as it was in the Indian Divorce Act (Act IV of 1869) under section 34. So, a claim for damages cannot be treated as a relief in an application for a decree for divorce or a decree for judicial separation. Learned counsel pointed out that, in the rules framed by the High Court under the Hindu Marriage Act, mention about damages is made in rule 20. It states that—
“Any husband may, in a petition for divorce, claim damages from the co-respondent on the ground of his having committed adultery with the wife of such petitioner”.
17. It was argued that, on account of such provision, damages became an incidental relief, such as alimony, or maintenance, as provided in the Act itself. How far this rule is consistent with the Act is not before us for consideration. That will be a matter which will arise at the time of hearing of the appeal itself on merits. But, is claim for damages is not provided in the Act itself, he cannot hold that any claim for damages would be a relief flowing from the main relief asked for, such as, divorce. It will have to be treated as a money-claim, and, for that, the suitor will be required to pay ad valorem court-fee. If, in the present appeal, the relief is not restricted to divorce only but the appeal is sought to be pursued in regard to the damages as well, it will have to be treated as an appeal arising out of a money suit. The application in which this damage was claimed in the trial Court was substantially in the form of a money claim. If it was possible for the applicant to combine the two reliefs in one action (we are not expressing an opinion on that at this stage), a part of his claim, namely, for divorce, is to be treated as an application under section 13 of the Hindu Marriage Act and the other part, namely, for damages, cannot but be treated as a claim for money against one of the other party. He should be required to pay ad valorem court-fee on the latter in the trial court and, in the same view, he will be required to pay ad valorem court-fee on the memorandum of appeal in respect of that claim.
18. We want to note that we are not considering here it, in the present appeal, the two actions can be combined in this Court in one and the same appeal or if the claim for damages could have been entertained under section 13 of the Hindu Marriage Act by the Court below.
19. One of the contentions in support of a levy of a Court fee of Rs. 22.50 on the memorandum of appeal was that as section 28 of the Hindu Marriage Act lays down that an appeal against a decree or an order made under the Act may be made under any law for the time being in force, this means that the Act does not give the right of appeal and the aggrieved person will take aid of sections 96, 104 or Order XLIII, Rule 1, Code of Civil Procedure, to pursue his remedy. In that view, if the decree for divorce or any other order is not taken as a decree or an order under the Code of Civil Procedure, there will be no right of appeal under section 96 or 104.
20. We cannot agree with this argument. If the statute (the Hindu Marriage Act) was not giving the right of appeal, It would not have refused such right in regard to costs only, as stated in the proviso to section 28. Neither of the sections 96 and 104 nor Order XLIII rule 1 of the Code of Civil Procedure can include a decision given under the Hindu Marriage Act. Section 96 speaks of a decree passed by any court exercising original jurisdiction, which means jurisdiction conferred under the Code of Civil Procedure and not by any special statute. Though the language of section 28 is different from that used in section 75 of the Provincial insolvency Act or section 47 of the 1 Guardians and Wards Act, they are for the same purpose land bestow a right of appeal upon the aggrieved party. For the reasons given above, we are of the view that the memorandum of appeal arising out of an order passed under section 13 of the Hindu Marriage Act either granting a decree for divorce or refusing the same will be treated as an appeal contemplated under article 11 of Schedule II of the Court Fees Act. The claim for money by way of damages will be liable to ad valorem court-fee.
IF/J/D.H.Z
21. Order accordingly.