Uma Maheswari vs Dr. V. Mathivanan

S. Sardar Zackria Hussain, J.—This Civil Revision Petition is filed by the wife. This revision is directed against the dismissal of the C. M. A.

No. 41 of 2000 as not maintainable by .the learned Principal District Judge. Nagapattinam as per the judgment dated 26-9-2000. ,

The respondent herein is the husband of the revision petitioner and he filed H. M. 0. P. No. 11 of 1999 against his wife, viz., the revision

petitioner herein to declare the marriage held between them as null and void u/s 12(1)(a) of the Hindu Marriage Act, 1955. The revision petitioner

filed I. A. No. 148 of 1999 claiming interim maintenance as contemplated u/s 24 of the Hindu Marriage Act.

The trial Court considering the case of either parties that since the respondent herein is working as lecturer in Annamalai University and since it is

stated by the respondent herein that he is earning about Rs. 5.000/-. directed the respondent herein to pay interim maintenance to the revision

petitioner at the rate of Rs. 750/- per month from the date of the petition, i.e.. 27-8-19,99. besides Rs. l,OOO/- towards litigation expenses, as

per order dated 29-12-1999. The wife not satisfied with the interim maintenance so awarded filed Civil Miscellaneous Appeal No. 41 of 2000.

The Civil Miscellaneous Appeal was dismissed as not maintainable relying on the decision reported in Sunil Hansraj Gupta Vs. Payal Sunil Gupta, .

The judgment is challenged in this Civil Revision Petition by the wife, viz., the revision petitioner.

The learned counsel for the revision petitioner submitted that the learned Principal District Judge found the Civil Miscellaneous Appeal is not

maintainable and hence necessary direction may be issued to the learned Principal District Judge to return the Civil Miscellaneous-Appeal for the

purpose of seeking proper remedy by remitting the matter back.

The learned counsel for the respondent herein vehemently contended that despite the fact no appeal will lie against interlocutory order made u/s

24 or 25 or 26 of the Hindu Marriage Act, the Civil Miscellaneous Appeal No. 41 of 2000 has been filed before the Principal District Court and

therefore, the same was rightly dismissed as not maintainable.

As per Section 24 of the Hindu Marriage Act, either spouse is entitled for maintenance amount pending litigation and the expenses of the

proceeding if the spouse has no independent income. The order made u/s 24 or 25 or 26 of the Hindu Marriage Act. is not appealable u/s 28(2) of

the said Act and as held in Sunil Hansraj Gupta Vs. Payal Sunil Gupta, . The above decision was also relied on by the learned Principal District

Judge in which it is held :--

Where there is the passing of interim orders either u/s 24 or 25 or 26 of the Act. such order is not appealable as per the language used in Section

28(2) of the Act.

Therefore, it is clear that the order of the learned Principal Subordinate Judge in I. A. No. 148 of 1999 in H. M. 0. P. No. 11 of 1999 dated 24-

12-1999 directing the respondent herein to pay maintenance at the rate of Rs. 750/- per month from 27-8-1999, besides Rs. l,OOO/- towards

litigation expenses is not appealable. Despite the said fact, the Civil Miscellaneous Appeal has been filed and the same has been rightly dismissed

by the learned Principal District Judge as not maintainable. Such Judgment does not call for any interference. In the circumstances, the request of

the learned counsel for the revision petitioner to remit the matter back to the Principal District Court for the purpose of returning the Civil

Miscellaneous Appeal to seek proper remedy cannot be considered.

In the result, this Civil Revision Petition fails and the same is dismissed. The Judgment and decree made in C. M. A. No. 41 of 2000 by the

learned Principal District Judge, Nagapattinam are confirmed. No costs.