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Bhamidipati Saraswathi Vs. Bhamidipati Krishna Murthy - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 153 of 1958 converted into Civil Revn. Petn. No. 799 of 1959 and Civil Misc.
Judge
Reported inAIR1960AP30
ActsHindu Marriage Act, 1955 - Sections 21, 24 and 28; Code of Civil Procedure (CPC) , 1908 - Sections 104 - Order 43, Rule 1
AppellantBhamidipati Saraswathi
RespondentBhamidipati Krishna Murthy
Appellant AdvocateG. Bala Parameswari Rao, Adv.
Respondent AdvocateP. Somasundaram and ;P. Suryanarayana, Advs.
Excerpt:
.....denied maintenance - order under section 24 not covered by provisions relating to appeals against orders - no appeal lies from order passed - held, order remanded to lower court - direction to lower court to decide issue of maintenance in accordance with law. - - till october 1955, the parties lived together -and there is controversy as to whether they got on amicably and lived a happy life. 3. it is the case of the respondent that having made numerous attempts to win her hack to him but unsuccessfully he filed a petition (or restitution of conjugal rights in the court of the district judge, rajahmundry (o. --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..........make in this behalf, all proceedings under this act shall be regulated as far as may be, by the code of civil procedure, 1908.'it is manifest that, by reason of this section, the provisions of the civil procedure code are made applicable to proceedings under this act, subject to other provisions in the act and the rules made by the high court. there are no provisions in the act with regard to right of appeal against orders passed under this act, nor are there rules made by the high court governing this matter. we have, therefore, perforce to fall back on the civil procedure code. we are not concerned here with appeals against decrees, since, undoubtedly, an appeal lies against a decree of a court.7. the crucial question is whether the civil procedure code contemplates appeals against.....
Judgment:

P. Chandra Reddy, C.J.

1. This is an appeal against an order refusing to grant interim maintenance under Section 24 of the Hindu Marriage Act (Act XXV of 1955) (hereinafter referred to as the Act).

2. The facts that have contributed to this litigation may be briefly set out. The appellant is the wife of the respondent. They were married in April 1953, and thereafter, they lived for somc time in the residence of the respondent's father. Later on they took up their abode at Visakhapatnam. Till October 1955, the parties lived together -- and there is controversy as to whether they got on amicably and lived a happy life. Whatever that be, the trouble started when the appellant had an attack of small-pox and was sent to her parents' house in Rajahmundry at her request according to the respondent, and without her consent, according to the appellant. Subsequently, she would not go back to her husband, whatever might be the reasons with which we are not concerned at present.

3. It is the case of the respondent that having made numerous attempts to win her hack to him but unsuccessfully he filed a petition (or restitution of conjugal rights in the Court of the District Judge, Rajahmundry (O. P. No. 70 of 1957). This was opposed by the appellant on the grounds which it is not necessary to mention, as they do not have much of a bearing on the present enquiry. Ponding that petition, the appellant applied for a declaration of the nullify of the marriage between them, under Section 12(1)(a) of the Act making several allegations.

4. She also filed I. A. No. 599 of 1957 in O. P. No. 70 of 1957 i. e., petition by the respondent for restitution of conjugal rights for interim maintenance and for legal expenses. This was resisted by the respondent. The trial Court dismissed the petition with regard to her claim for interim maintenance on the ground that the petitioner was not entitled to any maintenance under the Act as she had refused to go and live with her husband. It is this order that is the subject-matter of this appeal.

5. A preliminary objection is raised by the learned counsel for the respondent as to the maintainability of the appeal. It is urged by Sri Somasundaram that no appeal lies against an order refusing to giant interim maintenance under Section 24 of the Act. As the decision of this question turns upon the construction to be placed on Section 28 of the Act, it is convenient to read it here. It reads:--

'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.'

It is plain that this section by itself does not confer any right of appeal. The expression 'may be appealed from under any law for the time being in force' is significant. This conveys the idea that an appeal could be filed against decrees and orders, if there is any provision therefor under any law. We have, therefore, to see if there is any law which gives a right of appeal against the decrees and orders passed under this Act. There is no specific reference to any other law in the enactment which vests such a right of appeal in the aggrieved party.

6. However, Section 21 of the Act gives a clue to the solution of this problem. That Section says.--

'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.'

It is manifest that, by reason of this Section, the provisions of the Civil Procedure Code are made applicable to proceedings under this Act, subject to other provisions in the Act and the rules made by the High Court. There are no provisions in the Act with regard to right of appeal against orders passed under this Act, nor are there rules made by the High Court governing this matter. We have, therefore, perforce to fall back on the Civil Procedure Code. We are not concerned here with appeals against decrees, since, undoubtedly, an appeal lies against a decree of a court.

7. The crucial question is whether the Civil Procedure Code contemplates appeals against orders passed under this Act. The provisions relating to appeals against orders are' Section 104 and Order 43 of the Civil Procedure Code. Section 104 recites:--

'(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:--

(ff) an order under Section 35A;

(g) an order under Section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under Rules from which an appeal is expressly allowed by rules :

Provided that no appeal shall lie against any order specified in Clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

(2) No appeal shall lie from any order passed in appeal under this section'.

Surely, an order under Section 24 of this Act does not fall within the ambit of Section 104 C. P. C.

8. We have next to see whether it comes within the purview of Order 43 C. P. C. A close scrutiny of the various clauses of that order establishes that an order under Section 24 of this Act falls outside the purview of Order 43 C. P. C. There is no other Section or order within the C. P. C. which governs orders passed under this Act.

9. In support of the contention on behalf of the appellant that an appeal is competent, reliance is placed by the learned counsel on a decision of the Bombay High Court in Smt. Kamala v. Sharma Rupchancl, AIR 1958 Born. 466. It is true that in that case an appeal was entertained against an order dismissing an application under Section 24 of the Act, but this question was not raised there at all and not considered. The only controversy was whether the petitioner can invoke the jurisdiction under Section 24 of the Act. Therefore, that pronouncement could not be regarded as an authority for the proposition now contended for the appellant. The judgment of Subba Rao C. J. (as he then was) who spoke for the Court in Annapurnamma v. Ramakrishna Sastry, ( : AIR1959AP49 ) is not of any avail to the appellant. The only point debated there was whether an appellate Court could make an order under Section 24 of the Act and the learned Judges answered it in the affirmative for the reason that an appellate Court has as much jurisdiction as the trial Court in that regard.

10. Reliance was then placed by Shri Balaparameswari Rao on the following passage in Mulla's 'Principles of Hindu Law' (12th edition) occurring at page 890:--

'The order granting alimony pendents lite under this section is appealable (Section 28) but the appellate Court as in case of any ' discretionary order would interfere only if the order is arbitrary or capricious or made in disregard of any sound principle.'

It is to be seen that there is no discussion on this aspect of the matter, but the learned author proceeded on the assumption that an appeal lies under Section 28 of the Act, evidently ignoring the expression 'may be appealed from under any law for the time being in force.' We are, therefore, constrained to differ from the opinion expressed therein.

11. It follows that the preliminary objection must be upheld, But this does not dispose of the matter, as the appellant has filed an application to convert the civil miscellaneous appeal into a civil revision petition. Having regard to the circumstances of the case, we accorded permission to the petitioner to do so and we propose to treat the appeal as a revision. C. M. P. No. 4149 of 1959 is ordered.

12. It is seen from the order under revision that the learned Judge has not applied his mind to the question whether the petitioner (the wife) is entitled to any relief under the section. The learned Judge thought that the refusal of the petitioner to live with her husband would be a sufficient ground to reject her application. In our opinion, the only consideration that should enter the judicial verdict in that behalf is whether the party who applies for relief is possessed of sufficient means or not.

We do not know whether she is entitled to any relief, since the learned Judge had not considered any of the aspects arising in the matter in this regard, but had rejected the petition in limine in the view that she was disentitled to any relief for the reason that she was unwilline to live with her husband, We do not, therefore. Know whether there is any case for the grant of relief to the petitioner under that Section. We, therefore, set aside the order under revision and remand the netition to the trial court for disposal according to law. The further enquiry in the present petition will be only with regard to the maintenance payable, as the trial court already allowed her some expenses for the conduct of the proceedings.

13. The trial court is directed to dispose of the two main petitions, one for the restitution of conjugal rights and another for declaring the marriage a nullity, without any delay, preferably before the end of August 1959. We are assured by both parties that they would go on with the trial of the petitions and would not ask for any adjournment.

14. C. M. P. No. 4876 of 1959 for directionsis dismissed.


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