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Report No. 15

Clause 49

1. This deals with that part of section 54 of the Indian Divorce Act which deals with appeal. The following verbal defects in the existing Act may be noted:-

(a) The words "may be appealed from" occur in jarring repetition,

(b) The expression "laws and orders" is lengthy and not precise also.

(c) The reference to "orders", occurring for the second time in the existing section of the Divorce Act is not accurate. Orders of a court are not appealable in all cases (that is, unless mentioned in Order XLIII, rule 1 of the Code of Civil Procedure). Hence it would not be accurate to say that the decrees and orders will be appealable as decrees and orders in original civil jurisdiction. The difficulty has been felt under section 28 of the Hindu Marriage Act in a recent case where it was held1 that an order refusing interim maintenance is not appealable, because it is not listed as an appealable order in the Code of Civil Procedure.

(d) It is not clear whether the right of appeal should be sought in any other statute. See the discussion on the subject in a case which arose under the Hindu Marriage Act.2

2. To make the matter clear, a short and straight provision giving a right of appeal against all decrees and orders has been made.

3. A provision that the decrees etc. may be appealed from "under the law for the time being in force"-which would cover such points as limitation, form of appeal etc. has been regarded as unnecessary.

1. Saraswati v. Krishnamurthy, AIR 1960 AP 30.

2. Shobhana Sen's case, AIR 1959 Cal 455.

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