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A second appeal under the Hindu Marriage Act is maintainable, the Gujarat High Court has ruled.

Deciding the case of Varshaben Suthar vs Jayshankar Mistri, Justice K.A. Puj ruled, in a judgment made available Friday, that the second appeal against the judgment and decree of the first appellate court under the 1955 act would be maintainable under its section 28 as it stands after the Marriage Laws (Amendment) Act, 1976, and not under Section 100 of the Code of Civil Procedure.

However, the appeal would be regulated by Section 100 of the Code of Civil Procedure.

Mistri had challenged the maintainability of the second appeal on grounds that it is not provided under section 28(1) of the Hindu Marriage Act. He contended that it only provides for one appeal against the decree passed by the court in exercise of its civil jurisdiction. However, the court disagreed.

The court also rejected Suthar’s contention that the first appellate court had passed the decree for divorce only on the ground of irretrievable breakdown of marriage.

Justice Puj observed that the court had discussed various issues including desertion, living adulterous life with another person, the appellant having pregnancy when she was not living with the respondent husband, abortion and so on. It then came to the conclusion that it was not possible for them to live together and there was an irretrievable breaking down of marriage and divorce was the only solution.

Suthar had filed the second appeal in the high court challenging the order of the Sabarkantha district judge in January 2007, allowing the appeal filed by Mistri and granting divorce by quashing and setting aside the order of additional civil judge of Himmatnagar.

Mistri had been asked to pay Rs.2 lakh as permanent alimony, but had also filed a cross objection challenging the said order.

However, Justice Puj dismissed both the second appeal and cross objection.

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