Smt. Taranjit Kohli vs Gurbaksh Singh Kohli

R.S. Pathak, C.J.—This is an appeal by the wife u/s 28 of the Hindu Marriage Act arising out of proceedings u/s 24 of the Act for maintenance pendente-lite and litigation expenses.

The Respondent is the husband of the Appellant. He has filed a petition u/s 13 of the Hindu Marriage Act before the learned District Judge, Mandi, claiming a decree for divorce. During the pendency of the petition, the wife applied u/s 24 of the Act for maintenance pendente lite and expenses of the proceeding. The learned District Judge has disposed of the application by his order dated November 4, 1974, which reads as follows:

In the situation presented on record, it is better for the Petitioner to live separately, but the Respondent must make reasonable arrangement for her separate living and pay monthly maintenance of Rs. 150/- per month pendente lite. The Respondent shall also pay Rs. 200/- legal proceeding expenses.

Dissatisfied with that order, the wife appeals.

At the outset, counsel for the husband has raised the preliminary objection that the appeal does not lie. We must first address ourselves to that objection.

The appeal has been filed u/s 28 of the Hindu Marriage Act. It provides:

Enforcement of, and appeal from, decrees and orders.-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.

The contention of counsel for the husband is that Section 28 by itself does not create a right of appeal, and for that purpose it must be read with "any law for the time being in force". It is said that if there is any such law providing for an appeal against decrees or orders made under the Hindu Marriage Act, an appeal must be referred for its maintainability to such law. It is pointed out that Section 21 of the Act applies the CPC to proceedings under the Act, but there is nothing in Section 104 or order 43 Rule 1 of the Code which permits an appeal against an order u/s 24 of the Hindu Marriage Act.

It is necessary, I think, to consider the scope of Section 21 at this stage. Section 21 provides:

Application of Act 5 of 1908.-Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

Section 21 provides that a proceeding under the Hindu Marriage Act shall be regulated by the Code of Civil Procedure. In other words, the provisions of the Code will determine how the proceedings will be conducted. During the proceedings, whether it be a petition for restitution of conjugal rights, for judicial separation or for divorce, or for an order for maintenance pendente lite and expenses of proceedings or for permanent alimony and maintenance or for the custody of children, it is necessary for the court to pass orders from stage to stage in the course of adjudicating upon those petitions and applications. Such orders are the orders contemplated within the scope of the Code of Civil Procedure. They are orders relating to procedure, and are made from stage to stage in the process of regulating the proceeding being taken under the Hindu Marriage Act. If a party is aggrieved by any such order it may appeal against it, provided an appeal lies under the Code. When such appeal is filed, it is intended to rectify the proceeding by replacing the impugned order by the order which should have been passed instead. The appeals are remedies by which the proceeding is regulated from point to point. The regulation of the proceeding under the Act by following the provisions of the CPC includes all the powers given under the Code by way of appeal, revision and other remedies for the purpose of correcting an erroneous order made in the course of trying a suit. Examples of such orders arc provided by some of the orders mentioned in order 43 Rule 1 of the Code of Civil Procedure. Therefore, so far as the regulation of proceedings under the Act is concerned the CPC applies by virtue of Section 21 of the Act, and errors committed in the course of those proceedings may be corrected by resort to the remedies provided within the Code. Once that is clear, the scope of Section 28 of the Hindu Marriage Act becomes apparent at once. The decrees and orders mentioned in Section 28 are the decrees and orders specifically referred to by the Act itself, such as the decrees made under Sections 9, 10 and 13 and the orders made under Sections 24, 25 and 26 of the Act. In respect of all of them, the right of appeal is created by Section 28 of the Act itself. The circumstance that the proviso to Section 28 mentions that no appeal will lie on the subject of costs only confirms that Section 28 itself provides for appeals generally.

What then is the meaning of the expression "under any law for the time being in force?" That expression refers to the forum in which the appeal will lie, the period of limitation prescribed therefore and other allied matters according to the law for the time being in force in the area where the case arises. These are all matters for which different provision may be made by different State Legislatures, and Parliament has, therefore, advisedly used the expression ''''under any law for the time being in force". While the right of appeal has been created by Section 28 itself how and where that right will be exercised falls to be determined by the law for the time being in force.

An appeal u/s 28 lies against all decrees and orders specifically mentioned in the Act. An order u/s 24 is one such order.

I am supported in this view by what has been laid down in P.C. Jairath v. Mrs. Amirt Jairath AIR 1967 Pun. 148 , Kode Kutumab Rao Vs. Kode Sesharatnamamba, Smt. Sarla Devi Vs. Shri Balwan Singh, , Lallubhai Keshavram Joshi v. Nirmalaben Lalluram Joshi AIR 1972 Guj. 1974 , Suresh Prasad Vs. Smt. Manorama Debi, , Madhukar Trimbakrao Ghisad Vs. Malti Madhukar Ghisad and Another, , and Parashuram Rao Anantha Rao Pise v. Smt. Pratibha Parshuram Rao Pise AIR 1975 Kar 31.

I am of opinion that the present appeal is maintainable u/s 28 of the Hindu Marriage Act. The prliminary objection is rejected.

It is stated on behalf of the wife that there is no grievance in respect of the order of payment of Rs. 200/- as litigation expenses, and the wife is aggrieved only by the order directing payment of Rs. 150/- per month as maintenance pendente lite. The principal contention raised in that regard by the wife is that the order for monthly maintenance has been made conditional on the wife''s staying separately from the husband. It is pointed out that the learned District Judge has found that the parties are residing together in the same house. It is not open to the learned District Judge, it is urged, to require them to live separately and on that basis to pay monthly maintenance of Rs. 150/- per month to the wife. It seems to me that the wife is right in that contention. The learned District Judge was called upon to determine the monthly maintenance on the basis that the parties were residing together. That was his finding, and he should have applied his mind to examining what should be the amount of maintenance to be paid to her. In awarding monthly maintenance on the assumption that they should live separately the learned District Judge clearly erred in law.

Accordingly the appeal is allowed, the order dated November 5, 1974, passed by the learned District Judge, Mandi, is set aside and the case is remanded to him for fresh decision in accordance with law. In the circumstances there is no order as to cost.

Chet Ram Thakur, J:

I agree.