Narain Singh vs Smt. Rukmani

R.S. Pathak, C.J.—This appeal is directed against an order of the learned District Judge, Solan Division, awarding litigation expenses and maintenance pendente-lite to the wife for the duration of a petition by the wife u/s 10 of the Hindu Marriage Act.

During the pendency of the petition u/s 10 of the Hindu Marriage Act, the wife applied u/s 24 of the Act for an order directing the husband to pay her maintenance and litigation expenses. On April 7, 1977, the learned District Judge, Solan Division made an order awarding Rs. 150/- as litigation expenses and Rs. 30/- per month as maintenance pendente lite.

Shri Inder Singh, learned counsel for the appellant, has very fairly pointed out that it is doubtful whether the ap- peal is maintainable in view of the changed state of law. Having considered the matter, we are of opinion that the appeal must be rejected as incompetent. Until 1976, Section 28 of the Hindu Marriage Act provided:

"28. Enforcement of, and appeal from, decrees and orders.

All decrees and orders made by Court in any proceeding under this Act shall be enforced in like manner as the decrees and order 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 provision was construed by this Court in Smt. Taranjit Kohli v. Gurbaksh Singh Kohli ILR (1975) Him 663, to include an appeal against an order u/s 24 of the Act. Subsequently, by the Marriage Laws (Amendment) Act, 1976, Section 28 was substituted by a new provision which reads as follows:--

"28. Appeals 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 the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the 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."

It is apparent that an appeal is now provided against decrees passed under the Hindu Marriage Act and against those orders only which are made u/s 25 and Section 26 of the Act (provided they are not interim orders), A comparison of the new Section 28 with the original Section 28 shows that no appeal is contemplated under the amended law against an order u/s 24. What has not been expressly included in the new Section 28 must be implied to have been excluded. Therefore, having regard to the new Section 28, no appeal lies now against an order u/s 24. Now, it is true that the application u/s 24 was made before the amendment was brought in. But Section 39 (1) (i) of the Marriage Laws (Amendment) Act, 1976 declares that all petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Amendment Act shall be dealt with and decided by such court, if it is a petition or proceeding under the Hindu Marriage Act, then, so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended under this Act. Accordingly, the appeal filed by the appellant must now be considered in the light of the amended Section 28 of the Hindu Marriage Act. That being so, on the view taken by us, no appeal lies.

We are supported in our opinion by what has been laid down in Smt. Satish Bindra Vs. Surjit Singh Bindra, and Gurfaaksh Singh v. Taranjit Kohli FAO, No. 7 of 1977 decided by C. R. Thakur, J. on May 31, 1977: (reported in AIR 1977 Him 66).

The appeal is rejected as incompetent.