D.S. Seshadri vs Jayalakshmi

S. Ramachandra Iyer, C.J.—This civil revision petition arises out of an order passed by the Principal Judge, City Civil Court, Madras, in a

matrimonial cause granting permanent alimony to the respondent, the wife of the petitioner under the provisions of Section 25 of the Hindu

Marriage Act (Act 25 of 1955). The facts which give rise to this civil revision petition are these:

The respondent was married to the petitioner on 11-1-1951. Soon thereafter the couple set up their home at Madras where the husband was

employed as a clerk in the Revenue Department of the Government of Madras, on a modest salary of about Rs. 120 per month. The marriage

unfortunately was not a success and there were misunderstandings between the couple even from the very beginning. Within a month after they set

up their home, the wife left her husband for her father''s house at Conjeevaram taking with her all her belongings, Attempts by husband to bring her

back did not succeed, but it is stated that the respondent came to Madras and stayed with her husband for about 15 days in August 1956 in

connection with the obsequial ceremonies of the petitioner''s father. But even then she is said to have stayed in her husband''s house only during

daytime. On 30-9-1959 after having waited for nearly 8 years the petitioner filed a petition u/s 10 of the Hindu Marriage Act for judicial

separation. The application was resisted by the respondent on the ground that there had been no desertion on her part as she was prevented from

living with her husband by reason of the bad treatment accorded to her in his house by his mother and sister. That defence was found to be false.

By his order dated 21-3-1960 the learned City Civil Judge found that the respondent had deserted the petitioner, without reasonable cause for a

continuous period of more than two years preceding the prestion of the petition and passed a decree for judicial separation. During the pendency

of the petition for judicial separation the respondent was paid under an order of Court a sum of Rs. 20 per month towards her maintenance. On

24-1960 the respondent filed an application u/s 25 of the Act for the grant of permanent alimony at the rate of Rs. 30 per month. The lower Court

accepted her claim and passed an order as prayed for. The propriety of this order is the subject matter of this civil revision petition.

A preliminary objection has been taken to the maintainability of the civil revision petition u/s 115 of the C.P.C. the contention being that as an

appeal lies against an order u/s 25 of the Act, this Court would have no jurisdiction to interfere in revision. Before dealing with this contention it is

necessary to refer to Section 28, which confers a right of appeal to an aggrieved party against decrees and orders made under the Act. The section

states-

All decrees and orders made by the Court in any proceedings under this Act shall be enforced in like manner as the decrees 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.

This section is couched in words similar to these contained in Section 39 of the Special Marriage Act, and Section 55 of the Indian Divorce Act.

The wording of the section is not very happy; for example, it is not clear from its terms whether an appeal lies against all decrees and orders made

in any proceeding under the Act or whether such an appeal will lie only in respect of such decrees and orders for which appeal is provided under

some other Jaw. Secondly, even if the former views were correct it is a matter of doubt, whether an appeal would lie against every order passed in

the course of proceedings under the Act or only against final orders therein.

In Bhamidipati Saraswathi Vs. Bhamidipati Krishna Murthy, a Bench of the Andhra Pradesh High Court has held that the Act should be held to

contain in itself no provision for any appeal against orders; but as the CPC has been made expressly applicable to proceedings under the Act,

(vide Section 21) an appeal would lie if the particular order complained of, is an appealable order under the Civil Procedure Code. The actual

question for decision in that case across with respect to an order passed u/s 24 of the Act relating to the grant of maintenance pendente lite. It was

held that no appeal would lie against the order. The same question came up for consideration before Kamaswami J. in C. R. P. No. 692 of 1958

(S. R. No. 4958 of 1958). The judgment of the learned Judge has not been reported but we had an opportunity of perusing it. The learned Judge

was inclined to take the view that orders under Sections 9 to 13 of the Act will be decrees within the meaning of Section 2 C. P. C. and therefore

appealable but that in regard to other orders under the Act, there could be no appeal against them unless they came within Section 104 of the

Code.

These two decisions proceed on the footing that no right of appeal as such has been provided by Section 28 of the Act but an appeal will lie

only in such cases where some other law for the time being in force, (like the (Civil Procedure Code), provides for the same.

With great respect to the learned Judges, we are unable to share that view. In our opinion, Section 28 in terms confers a right of appeal against

all decrees and orders passed by the court in any proceeding under the Act. The word decree has been used in Sections 9 and 13 of the Ant.

Those sections relate to orders on petitions filed for restitution of conjugal rights, judicial separation, nullity of marriage and divorce respectively.

There can be no doubt that the Legislature intended to give a right of appeal against all such orders. Such orders have been, expressly referred to

as decrees in the Act and Section 28 provides for an appeal against them. There is no further qualification that such decrees should satisfy the

definition of the term decree under the Code. In other words, the right of appeal against the decrees under the Act cannot be subject to the

limitation that such right of appeal should exist under any other law for the time being in force. Most of the remedies provided for under the Act

were unknown before. Judicial separation and divorce were not available to married persons under the Hindu law prior to the coming into force of

Act 25 of 1955. Orders on such petitions cannot in terms satisfy the definition of the term decree contained in the Civil Procedure Code. Further it

is clear from the provisions of Section 28, that the decrees under the Act are not decrees under the Civil Procedure Code, for while referring to the

enforcement of such decrees it says that they shall be enforced in like manner, as decrees of court on its original civil jurisdiction. That is to say it is

by a statutory fiction and for the purpose of execution that the decrees under the Act are made decrees of a civil court. Decrees passed under

Sections 9 to 13 of the Act affect the status of the parties and there can be little doubt, that the legislature intended to confer a right of appeal

against them u/s 28. If once it is held that the appeability of the decrees cannot be subject to a further limitation that such a right should exist under

some other law for the time being in force, it must follow that the same interpretation should be adopted with reference to orders passed in any

other proceeding taken under the Act, for example, u/s 24 for maintenance pendente lite proceedings, u/s 25 for permanent alimony, u/s 26 for the

custody of children and u/s 27 regarding disposal of property. Orders under these provisions undoubtedly affect the rights of parties and it stands

to reason that there should be a right of appeal from such orders.

This question has been considered by the Calcutta High Court in Smt. Sobhana Sen Vs. Amar Kanta Sen, where it was held that Section 28 by

its terms granted a right of appeal against orders passes under the Act and that the words ""under any law for the time being in force"" contained in

that section only regulated the forum as to where the appeal had to be filed. This interpretation of the section was accepted in a later judgment of

the same High Court in Anita Karmokar and Another Vs. Birendra Chandra Karmokar, , and by Madhya Pradesh High Court in Rukhmanibai Vs.

Kishanlal Ramlal, . All the above cases relate to orders passed u/s 24 of the Act which can in a sense be said to be interlocutory. The same view

was also adopted in Dr. Tarlochan Singh Vs. Smt. Mohinder Kaur, .

A Bench of the Gujarat High Court considered the appealability of an order u/s 25 of the Act in Kadia Harilal Purshottam Vs. Kadia Lilavati

Gokaldas, and accepted the view of the Calcutta and Madhya Pradesh High Courts and held that an appeal would lie against such an order. The

learned Judges held that the words ""under any law for the time being in force"" in Section 28 of the Act were intended to provide for the forum of

appeal and that they did not qualify or restrict the right of appeal given under the statute. A different note has, however, been struck by Gokhale J.

in Prithviraj Singji v. Bai Shivprabha Kumari, AIR 1960 Bom 315, who was inclined to interpret the words ""any law for the time being in force"" in

Section 28 as regulating the appealability of decrees and orders passed under the Act. In our opinion the view taken in Smt. Sobhana Sen Vs.

Amar Kanta Sen, is consistent with the principles stated above and we accept the same, In Anita Karmokar and Another Vs. Birendra Chandra

Karmokar, to which reference was made earlier, Banerjea J. stated that the word ""orders"" in Section 28 of the Act meant only orders passed

under the Act, namely, those contemplated by Sections 24 to 26 of the Act and that orders which were interlocutory in nature or of a routine type

would not be appealable. We agree with the learned Judge that the orders contemplated by Section 28 are orders passed under the Act, but it

cannot be said that there would be no right of appeal against any interlocutory order at all. There may be interlocutory orders like an injunction etc.

or orders relating to execution, satisfaction and discharge in execution of decrees under the Act. Those orders will be orders passed under the

provisions of the CPC and it appears prima facie that they will be subject to right of appeal granted under that very Code which is made applicable

to the proceedings under the Act. It is, however, unnecessary to pursue that matter further as the question with which we are now concerned

relates only to an order u/s 25 of the Act which is similar to a decree awarding maintenance. We are of the opinion that such an order is

appealable.

Miss Sri Devi appearing for the petitioner requests that the present civil revision petition may itself be converted into an appeal. We find no

objection to adopt such course. The present civil revision petition will accordingly be treated as an appeal.

Two objections were raised on behalf of the appellant as to the legality and correctness of the order of the lower court granting permanent

alimony. The first is that Section 25 of the Act would only apply to a case where a decree for divorce had been granted and that it would not

govern a case where there was only a decree for judicial separation. Support for this argument is sought from the words in Section 25 ""while the

applicant remains unmarried"". It is argued that the section contemplates a case where the spouse can remarry but does not do so; and as no

remarriage could take place after a decree for judicial separation, there could be no right for permanent alimony to the aggrieved party u/s 25 of

the Act.

The construction of the section as contended for by the learned counsel cannot obviously be accepted. The opening words of the section

makes it clear that the power of the court thereunder could be invoked after any decree is passed under the Act. A decree for judicial separation is

one under the Act. The words ""white the applicant remains unmarried"" refer only to the duration of the liability, that is, to say, that the permanent

alimony cannot be directed to be paid after the applicant remarries.

It is then contended that the Hindu Adoptions and Maintenance Act of 1956 being a codifying legislation would have an overriding effect over

all other laws relating to maintenance amongst Hindus and as u/s 18 of the Act a Hindu wife would be entitled to separate maintenance only from

the respondent who was guilty of desertion to claim such maintenance. It is further contended that the provisions of Section 25 of the Hindu

Marriage Act should be deemed impliedly to have been overruled by virtue of Section 4 of the Hindu Adoptions and Maintenance Act which

states that any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with

any of the provisions contained in this Act. Reliance is placed in this connection on the decision of Veeraswami J. in Sundarambal Vs. Suppiah

Pillai, where the learned Judge held that a daughter who had been converted to another religion would not be entitled to claim maintenance from

her father after the coming into force of the Maintenance Act of 1956. We are, however, unable to accept the argument. The right conferred u/s 25

of the Hindu Marriage Act is a special right given to an indigent spouse. When an order is passed In a matrimonial cause for maintenance under the

Hindu Law or under the provisions of the Hindu Adoptions and Maintenance Act, 1956, it will be in respect of a legal right. Section 25 of the

Hindu Marriage Act 1955 does not confer any such absolute legal right. It vests a discretion in the court to award alimony or maintenance to a

party in a matrimonial cause who is indigent against the other party comparatively well off. An order u/s 25 of the Hindu Marriage Act is by virtue

of special jurisdiction conferred under the Act and the provisions of that section cannot, therefore, be held to have been impliedly repealed by

Section 4 of the Hindu Adoptions and Maintenance Act. Miss Sri Devi next took up the stand that the order of the lower court granting permanent

alimony is not justified by the circumstances of the case. We are constrained to observe that the learned Judge has disposed of the matter in a

rather perfunctory manner. The husband is employed as a clerk on a salary of Rs. 110 per month.

During the pendency of the petition for judicial separation, the wife was paid under an order of court at the rate of Rs. 20 per month towards her

maintenance. No reason has been given by the learned Judge for awarding maintenance at the higher rate of Rs. 30 per month as permanent

alimony. More than this, the lower court has not at all considered the relevant circumstances for the grant of permanent alimony. As we stated

earlier the wife was living away from her husband for no justifiable reason for nearly eight years prior to the date of the petition for judicial

separation. There is nothing to indicate as to how she was maintaining herself all these years and why she suddenly felt the need for charging her

husband with her maintenance. The lower court has held that the mere fact that the wife deserted her husband without any reasonable cause would

not disentitle her to claim alimony. It is, no doubt, true that desertion by itself would not disentitle the wife from making a claim for alimony u/s 25

of the Hindu Marriage Act. Section 25 vests a discretion in court which discretion has to be exercised judicially before making one party liable for

the payment of alimony to the other. The section specifically provides for the Court taking into consideration the conduct of the parties. The other

factors that could reasonably be taken into consideration are whether the wife is capable of supporting herself from the amount of her income she

has. It will be appropriate in this connection to quote the familiar passage from the judgment of Jessel M. R. in Robertson v. Robertson and

Favagrossa, (1883) 8 P. D. 94.

It appears to me that the 32nd section of the Act (Divorce Act 1857) has left an absolute discretion in the Court. I think that there was good

reason for doing so. When a divorce could only be obtained by an Act of Parliament it was in practice only obtained by wealthy persons because

it was very expensive and it might well be considered right that where a wealthy man obtained divorce from a wife who had no means of

subsistence he should as a condition of his being granted divorce be compelled to make some provision for her so that she should not be allowed

to starve. But the Divorce Act was meant to apply not only to wealthy people but to all people and indeed one of the strong grounds for passing it

was under the then system the wealthy alone could obtain divorce. It was thought that this was not the right state of things and consequently the

remedy was made less expensive so that all classes might be able to resort to it. Now in the case of people of small means very different

considerations arise. When a working man who has married a washerwoman obtains a divorce, she can very well go to washing again.

That is quite a different case from that of a gentleman of large means who obtains a special privilege by an Act of Parliament"".

As we stated earlier granting of alimony after Judicial separation or divorce is one for the discretion of the Court, for example, the conduct of

the wife might be so grossly wilful or bad as not to induce the Court to pass an order for alimony in her favour. In the present case no evidence has

been let in by the parties about their comparative means and no information was vouched to the Court as to how the wife was maintaining herself

all these years. It cannot be said that in the circumstances of the case the lower Court has exercised its discretion after considering all the relevant

matters. The order of the lower Court is, therefore, set aside and the appeal is remanded for fresh disposal according to law and in the light of the

observations made above. The parties will be at liberty to adduce such evidence as they might consider necessary. No costs.