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Parashuram Rao Anantha Rao Pise Vs. Pratibha Parashuram Rao Pise - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 259 of 1973
Judge
Reported inAIR1975Kant31; ILR1974KAR95; 1974(1)KarLJ265
ActsHindu Marriage Act, 1955 - Sections 3, 19, 21, 24, 28 and 118; Code of Civil Procedure (CPC), 1908 - Order 27, Rule 41; Mysore Civil Courts Act; Indian Divorce Act - Sections 55; Delhi Rent Control Act - Sections 38 and 38(1); Delhi and Ajmer Rent Control Act, 1952 - Sections 34 and 34(1)
AppellantParashuram Rao Anantha Rao Pise
RespondentPratibha Parashuram Rao Pise
Appellant AdvocateR.H. Chandangowda, Adv.
Respondent AdvocateT.J. Chouta, Adv.
Excerpt:
.....orders made by the court in any proceeding under this act shall be enforced in like manner as the decrees and orders of the court made in the exercise of its 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. an order under section 24 of the act is enforceable in a like manner as a decree or order passed by, the court, the said order confers a right on the spouse in whose favour it is passed to recover maintenance pendent lite and the expenses of the litigation from the spouse against whom the said order is made. the decision of the supreme court referred to above and of this court in govin-da's case air 1971 mys 75, are clearly distinguishable from the present..........time being in force' appearing in section 28 and stated that an appeal would lie from any order or decree passed under the act, provided under any other law' there was a right of appeal conferred on the litigant against such orders. relying upon the provisions of section 21 which made the provisions of the code of civil procedure applicable to the proceedings under the act, he held that to find out whether a right of appeal existed against an order or a decree under the act reference must be made to the code of civil procedure. we find it difficult to agree with the above view. section 28 deals with two aspects, they are:(1) the enforceability of order or decree made under the act; and (2) the right of appeal against any order or decree passed under the act. there is no provision in the.....
Judgment:

1. This appeal is fifed under Section 28 of the Hindu Marriage Act (hereinafter referred to as the Act) against the order passed in M. C. No. 8 of 1972 on the file of the Civil Judge, Bhar-war, directing the appellant to pay the respondent a sum of Rs. 100 p. m. by way ofmaintenance pendente lite, and Rs. 100 towards expenses of the proceedings under Section 24 of the Act. The appellant is the husband and the respondent is the wife The respondent filed M. C. No, 8 of 1972 against the appellant for a decree for judicial separation. During the pendency of the said case she applied to the Court below for making an order in regard to the maintenance pendente lite and expenses of the proceedings. She stated in the course of the said application that the income of the appellant was in the order of Rs. 300 p. m. and she was entitled to maintenance pendente lite at the rate of Rs. 200 per month and Rs. 150 towards the expenses of the proceedings. The respondent pleaded that his income was in the order of Rs. 400 per month and that he had some other dependents to maintain. He therefore requested the Court to fix the maintenance pendente lite and the expenses of the proceedings at a reasonable amount. The Court below found that the income of the appellant was in the order of Rs. 500 per month and on that basis directed the appellant to pay Rs. 100 per mensem towards maintenance pendente lite and Rs. 100 towards the expenses of the proceedings. Aggrieved by the said order the appellant has filed this appeal.

2. The first question which arises for consideration in this case is whether the appeal is maintainable under Section 28 of the Act. In R. P. Muniswamappa v. Eramma, AIR 1968 Mys 8 = (1967) 2 Mys LJ 44, Gopivallabha Iyengar, J., has held that an order under Section 24 granting interim maintenance is not appealable. Relying on the above decision Shri T. J. Chouta, learned Counsel for the respondent argued that the above appeal was not maintainable. Shri R. H. Chandanagoudar learned Counsel for the appellant submitted that the view taken by this Court in the above decision is not in conformity with the express language of Section 28 of the Act, and required to be reconsidered. The reason given by the learned Judge who decided the above case for coming to the conclusion that an order under Section 24 of the Act was not appealable is that Section 28 of the Act does not itself provide for a right of appeal and that it only indicated the forum to which an appeal would lie provided in the Code of Civil Procedure which is made applicable under Section 21 of the Act to the proceedings thereunder, such a right of appeal is available against any order or decree made under the Act. In doing so, he relied upon a decision of the Andhra Pradesh High Court in Saraswathi v. Krishna Murthy : AIR1960AP30 and Prithyraj Singhji v, Bai Sivaprabha AIR 1960 Bom 315. It may be mentioned here that the decision in Saraswati's case has been overruled by a Full Bench of the Andhra Pradesh High Court in Kode Kutumba Rao v. Kode Sesharatnamamba : AIR1967AP323 . The view expressed inSaraswati's case is no longer the view of the Andhra Pradesh High Court. On the other hand in Kutumba Rao's case, P. C. Jairuth v. Amrith Jairath , Sushiladevi v. Dhani Ram , Sarala Devi v. Balwan Singh : AIR1969All601 , Snehalata v. Jagadish Dansaua : AIR1964Ori122 and in Samir Kr. Banerji v. Sujata Baneni, (1966) 70 Cal WN 633, it has been held that an order passed under Section 24 of the Act is appealable under Section 28 of the Act. Section 28 of the Act reads as follows:

'28. Enforcement of, and appeal from, decrees and orders:--

All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its 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.' Gopivallabha lyengar, J. while deciding the case referred to above construed the words 'may be appealed from under any law for the time being in force' appearing in Section 28 and stated that an appeal would lie from any order or decree passed under the Act, provided under any other law' there was a right of appeal conferred on the litigant against such orders. Relying upon the provisions of Section 21 which made the provisions of the Code of Civil Procedure applicable to the proceedings under the Act, he held that to find out whether a right of appeal existed against an order or a decree under the Act reference must be made to the Code of Civil Procedure. We find it difficult to agree with the above view. Section 28 deals with two aspects, They are:

(1) The enforceability of order or decree made under the Act; and

(2) The right of appeal against any order or decree passed under the Act. There is no provision in the Act which indicates the forum of appeal. On a fair construction of the above Section we are of opinion that Section 28 expressly confers a right of appeal on a litigant from every order or a decree passed under the Act. The words 'may be appealed from' confer the right o. appeal and the words 'under any law for the time being in force' refer to the forum before which an appeal could be filed against such decree or order and the procedure to be followed in filing such appeal. Such forum in the instant case is determined by the provisions of the Mysore Civil Courts Act. Under Section 19 of the Act, the come which decides cases in the first instance under the Act is the District Court as defined under Section 3(b) of the Act and an appeal from a decree or order of the District Court would lie to the High Court under the Mysore Civil Courts Act. Even whenany other Civil Court is conferred the jurisdiction of deciding cases under the Act under a notification issued by the State Government for purposes of the Act it must be construed as exercising the powers of a District Court. Hence an appeal would lie from an order of the Civil Judge exercising jurisdiction under the Act, to the High Court. The above view receives support from the interpretation placed on analogous provision in the Indian Divorce Act. Section 55 of the said Act states that all decrees and orders made by the Court 'may be appealed from under the laws, rules, orders for the time being in force'. It is held by the Bombay High Court in (1898) ILR 22 Bom 612, and by the Lahore High Court in Noble Millicans v. Gladys Millicans, AIR 1937 Lah 862, that a right of appeal had been conferred by the said section itself, We do not, therefore, agree with the view expressed by Gopivallabha Iyengar, J. that no right of appeal has been conferred on the litigant under Section 28 of the Act against orders passed under the Act by the Court of first instance.

3. It was, however, argued by Sri T. J. Chouta, the learned Counsel for the respondent, that the expressions 'decree and order' appearing in Section 28 of the Act should be interpreted as not including interlocutory orders and hence no appeal would lie under Section 28 against an order passed under Section 24 which was in the nature of an interlocutory order. In support of the above argument, he relied upon the decision of this Court in Govinda v. Mary Fernandes, (1970) 2 Mys LJ 466 = (AIR 1971 Mys 75). In that case, the question for consideration was whether an order passed on an application for amendment of the pleadings by the Court under the Mysore Land Reforms Act was appealable under Section 118 of that Act. This Court took the view that such orders which were interlocutory in character did not come within the meaning of the expressions 'decision or order' appearing in Section 118 of the Act. In coming to that conclusion, this Court relied upon the decisions of the Supreme Court in Central Bank of India Ltd. v. Gokat Ghand : [1967]1SCR310 and Bant Singh Gill v. Shanthi Devi : [1967]3SCR59 . In the case of Central Bank of India Ltd., the Supreme Court was concerned with the interpretation of Section 38(1) of the Delhi Rent Control Act which provided for an appeal from every order of the Controller made under the Act. The Supreme Court was of the opinion that the expression 'order in Section 38(1) of the Delhi Rent Control Act did not include interlocutory orders which were merely procedural and did not affect the rights and liabilities of the parties.' In that view, it held that an order passed on an application for appointment of a Commissioner was not appealable under Section 38 of the Delhi Rent Control Act. In Bant Singh Gill's case : [1967]3SCR59 , the provision which came up for construction (consideration) before the Supreme Court was Section 34 of the Delhi and Ajmer Rent Control Act 38 of 1952. In that case, the question for consideration was whether an order passed by the trial Court holding that the proceedings had not abated was appealable under Section 34(1) of that Act which provided for an appeal against any decree or order passed by the Court. In that case, following its earlier decision in the case of Central Bank of India Ltd., the Supreme Court held that since the order in question did not determine any question which affected the rights and liabilities of the parties an appeal was not maintainable under Section 34 of that Act. It is, therefore, clear from the decisions of the Supreme Court referred to above that only those orders which determined the rights and liabilities of the parties were appealable under the provisions of the respective Acts and not others which did not decide any such question. An order under Section 24 of the Act, with which we are concerned in this appeal, does affect the rights and liabilities of the parties. An order under Section 24 of the Act is enforceable in a like manner as a decree or order passed by, the Court, The said order confers a right on the spouse in whose favour it is passed to recover maintenance pendent lite and the expenses of the litigation from the spouse against whom the said order is made. In the circumstances, such an order cannot be considered as an interlocutory order not affecting the rights and liabilities of the parties. The decision of the Supreme Court referred to above and of this Court in Govin-da's case AIR 1971 Mys 75, are clearly distinguishable from the present case and are of no assistance to the respondent. An order under Section 24 of the Act falls within the meaning of the expression 'order' appearing in Section 28 of the Act.

4. In view of the foregoing, we hold that an order passed under Section 24 of the Act can be questioned in appeal under Section 28 of the Act. We, therefore, overrule the decision of this Court in R. P. Muniswamappa v. Eramma, AIR 1968 Mys 8.

5. We shall now proceed to consider the question whether the amount of maintenance pendente lite fixed by the Court below is excessive or not. The Court below has fixed the maintenance pendente lite at Rs. 100 per month on the basis that the appellant was getting a monthly income of Rs. 500. Before the Court below, the said question was disposed of on the basis of averments made in the affidavits filed by the parties. The appellant stated in the course of his affidavit that his income was in the order of Rs. 400 per month. The Court below did not accept the said statement. It was of the opinion that his income was Rs. 500 per month. The appellant is an employee of the State of Maharashtra. Sri R. H. Chandangoudar, the learned Counsel for the appellant, has filed before us anapplication under Order 27, Rule 41 of the C. P. C. requesting the Court to take into account a certificate issued to the appellant by his official superior in which the total emoluments received by him are set out. Having regard to the circumstances of this case, we permit the appellant to produce the said certificate by way of additional evidence. From the said certificate, it is clear that the basic salary, including the increments which the appellant is drawing is Rs. 280 per month. We are informed that the appellant gets a sum of Rs. 120 by way of Dearness Allowance, In all the appellant is getting an income of Rs. 400 per month. There is no material to hold that the income of the appellant is more than Rs. 400 per month. In the circumstances, we hold that it would be reasonable to fix the maintenance pendente life of Rs. 80 per month instead of Rs. 100 fixed by the Court below.

6. With the above modification, the appeal stands dismissed.

7. Appeal dismissed.


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