K.N. Vishwamithra vs Vasudha Vishwamithra

K.N. Keshava Narayana J.

This appeal filed u/s 28 of the Hindu Marriage Act, 1955 (for short ''the Act'') is by the husband against the order dated 06.02.2010 passed by the Civil Judge (Sr. Dn.), Sagar on I.A. No. 3/2009 allowing the application filed by the respondent/wife u/s 24 of the Act for interim maintenance during the pendency of the petition filed by him for dissolution of marriage.

Registry raised several objections including the objection regarding maintainability of the appeal. As the office objections were not complied with within the time allowed under the rules, the appeal had been listed before this Court for orders regarding non-compliance of office objections on 09.07.2010. On that day, none appeared on behalf of the appellant. However, in the interest of justice, this Court granted three days time for the appellant to comply with the office objections and to make the appeal presentable. The order dated 09.07.2010 reads as under:

None appears for the appellant. Office objections have not been complied with though time had been granted on an earlier occasion.

Smt. P. Anu Chengappa, Advocate, submits that she has filed vakalath for the respondent, though not notified by this Court, even as early as 19.03.2010. She submits that present appeal is being quoted only to harass the respondent/wife from realising fruits of the order under appeal which is an order providing her monthly interim maintenance of Rs. 4,000/- from 06.02.2010. She submits that wife is not being provided with any maintenance and in main proceedings before the Court below which is a petition filed by the appellant/husband on the ground of cruelty and desertion on the part of respondent/wife, is being adjourned time and again, etc....

However, in the interest of justice, we grant three days time for the appellant to ensure the appeal is made presentable through his Counsel who has filed power for the appellant.

List this matter for further orders on 15.07.2010.

Today also none appeared on behalf of the appellant. Though the matter was passed over in the forenoon session, even in the afternoon session, none appeared on behalf of the appellant.

We have perused the objections and we find that the objections raised by the office are tenable. The order under appeal is an Interlocutory Order passed on the application filed u/s 24 of the Act for interim maintenance, during the pendency of the petition. Section 28 of the Act reads as under:

Appeal from decrees and orders, - (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of Sub-section (3), be appealable as decrees of the Court made in exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decision of the Court given in exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act, u/s 25 or Section 26 shall, subject to the provisions of Sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be No. appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.

Thus, Section 28(1) of the Act though provides for an appeal against all decrees made under the Act, Sub-section (2) of the Act provides for an appeal against the orders made u/s 25 or 26 of the Act, not being an interim order. In the case on hand, the order under appeal is an order passed on the application filed u/s 24 of the Act. Reading of Section 28 of the Act makes it clear that No. right of appeal is conferred under said section to a party aggrieved by an order passed u/s 24 of the Act. Therefore, the present appeal filed u/s 28 of the Act against the order allowing the application filed u/s 24 of the Act is not maintainable. Office objections are sustained. The appeal is dismissed as not maintainable.