Madanlal Bhagirath vs Poonibai Radhakisan

G.L. Oza, J.

This appeal arises out of an order passed u/s 24 of the Hindu Marriage Act, 1955, (hereinafter called the Act), awarding Rs. 100/- as expenses of litigation and Rs. 30/- p.m. as maintenance pe ndente lite to the respondent.

The appellant filed an application u/s 10 of the Act for a decree of judicial separation against the respondent-wife. In these proceedings, the respondent submitted an application u/s 24 of the Act for an order of maintenance pendente lite and for expenses of litigation. It was on this application that the order under appeal was passed.

Learned counsel for the respondent raised a preliminary objection that u/s 28 of the Act an order u/s 24 would not be appealable. Learned counsel for the appellant submitted that on this question there is a conflict of opinion amongst the various High Courts. The High Courts of Orissa, Madras, Gujarat, Madhya Pradesh, Calcutta and Punjab have taken the view that an order u/s 24 is appealable u/s 28 of the Act; whereas the High Courts of Bombay and Andhra Pradesh are of the view that an order u/s 24 is not appealable. In a later decision, a Full Bench of the Andhra Pradesh High Court has in Kode Kutumab Rao Vs. Kode Sesharatnamamba, overruled an earlier Andhra Pradesh decision and held that an order u/s 24 is appealable u/s 28 of the Act.

Learned counsel for the respondent contended that although a series of the High Courts have taken the view that an order u/s 24 is appealable and even this Court in Rukhmanibai Vs. Kishanlal Ramlal, which is a single Bench decision, has taken the view that an order u/s 24 would be appealable, the correct position is that an order u/s 24 would not be appealable and that the judgment of this Court in Rukmanibai v. Kishanlal (supra) being a Single Bench decision is not binding on us. Learned counsel contended that in view of the language used in section 28, an order passed u/s 24 would not be appealable. He drew our attention to section 24 of the Act and argued that an order under that section is passed on an application whereas the ''''orders" referred to in section 28 are orders in any proceedings under the Act. According to the learned counsel, an order on an application like the present one is not appealable and only those orders are appealable which are in the nature of final orders as the phrase used in section 28 was "under any law for the time being in force" which, according to him, was the Code of Civil Procedure.

Looking to the scheme of the Act and its provisions, we find that the words "decrees" and "orders" have been used for final decision under the various provisions of the Act. Sections 10, 11 and 13 refer to "decrees", whereas section 24 refers to an "order". Section 24 of the Act is as under--

Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceedings, and monthly during the proceeding such sum as, having regard to the petitioner''s own income and the income of the respondent, it may seem to the Court to be reasonable.

In this section, the words used are "Where in any proceeding" and the word "order" for an order of maintenance during the pendency of proceedings. Thus section 24 refers to any proceedings pending under any other provision of the Act and provides for an order of maintenance in any such pending proceeding. Section 28 of the act says that--

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 only.

This section refers to all "decrees" and "orders" made in any proceeding under the Act. The use of the words "decrees" and orders" appears to be significant and they would be referable to the word "decree" or "order" used in various provisions of the Act. Consequently, an order passed u/s 24 would be an order in any proceeding under the Act and thus appealable u/s 28 of the Act. The term "under any law for the time being in force" appears to have been introduced to indicate the forum and the manner in which the appeal would be filed. This view has been accepted by the various High Courts referred to above. The reasoning for the contrary view taken by the Bombay High Court in Prithvirajsinhji Mansinghji Vs. Bai Shivprabhakumari, is based on an interpretation of section 28 and the view taken was that there is no right of appeal conferred u/s 28 itself but the term "under any law for the time being in force" alone confers a right of appeal; that the law in force would be referable to the Code of Civil Procedure; and that consequently only those orders and decrees which are appealable under the Code will be appealable. This reasoning, with due respect to the learned Judge, does not appear to be correct because if the Legislature intended not to confer a right of appeal under the Act itself, then it would be difficult to find out orders which would fall under the category of ''appealable orders'' under the Code of Civil Procedure. It is also significant that in the various provisions of the Act, the Legislature itself used the words "decree" and "order" to indicate the final determination of various matters. The language of section 28 clearly indicates that a right of appeal has been conferred by this section itself. It is only the forum and other procedural matters which have been left under "any law for the time being in force". Consequently, the preliminary objection raised by the learned counsel for the respondent is without any substance.

So far as the merits of the case are concerned, admittedly the appellant is residing with his father and cultivates agricultural lands jointly with his father. They are in possession of about 50 Bighas of land. The appellant also claims to do some manual work and thereby earns something. It is also admitted that the respondent has no other means of her own for her maintenance. In these circumstances, the order passed by the trial Court is justified.

The result is that this appeal is dismissed. The respondent shall get costs of this appeal. Counsel''s fee is fixed at Rs 50/-, if certified.