Dr. Tarlochan Singh vs Smt. Mohinder Kaur

D.K. Mahajan, J.—In a husband''s petition u/s 10 of the Hindu Marriage Act (No. 25 of 1955) for judicial separation, the wife made an application u/s 24 for maintenance and expenses for litigation pendente lite. This application was granted by the trial Court on the 23rd of December, 1959. He allowed Rs. 80/- p.m. as maintenance and Rs. 200/- for litigation expenses. Against this decision, the Present appeal has been preferred by the husband.

Mr. L. D. Kaushal, who appears for the respondent-wife, raises a Preliminary objection that the order u/s 24 is not appealable. Section 28 of the Act which deals with appeals is in these terms :

"28. All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its 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."

Basing himself on the words "appealed from under any law for the time being in force" he argues that no appeal from an order u/s 24 of the Act is provided under any law for the time being in force, namely, the CPC or any other enactment. For this contention, he relies on a decision of the Andhra Pradesh High Court in Bhamidipati Saraswathi Vs. Bhamidipati Krishna Murthy, wherein a similar contention was advanced and had prevailed.

Mr. Manchanda, learned counsel for the appellant, however, draws my attention to the decisions of the Calcutta and Madhya Pradesh High Courts respectively in Smt. Sobhana Sen Vs. Amar Kanta Sen, and Rukhmanibai Vs. Kishanlal Ramlal, wherein an order u/s 24 of the Act has been held to be appealable. I am inclined to follow the view of the Calcutta and the Madhya Pradesh High Courts in preference to the view propounded by the Andhra Pradesh High Court.

If I accept the view of the Andhra Pradesh High Court, the provision of appeal in Section 28 of the Act becomes wholly meaningless, for no appeal against an order would be competent and this will lead to far-reaching consequences. The language of the section is somewhat defective, but the intention seems to be clear that an appeal against the orders under the Act was sought to be provided for, I Would, therefore, repel the preliminary objection.

Coming to the merits so far the provision for litigation expenses is concerned, it cannot be said to be either excessive or unreasonable. On the other hand, it errs on the side of meagreness,

As regards the provision for Rs. 80/-p.m. as maintenance, the learned Judge has not attached due weight to the fact that the wife is earning Rs. 80/- and up to this date she has never made any application against the husband for maintenance. Considering the means of the husband, I reduce the amount of Rs. 80/- to Rs. 50/-p.m.

The trial Court will allow the appellant three months'' time to make the payment before it puts into operation its order under appeal with the modification made by me.

For the reasons given above, I modify the order of the trial Court firing the maintenance of Rs. 80/- and substitute therefore Rs. 50/. p. m.; otherwise the order granting maintenance and litigation expenses will stand.

There will be no order as to costs.