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Jalasutram Annapurnamma Vs. Jalasutram Ramakrishna Sastry - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 263 of 1956 and Letters Patent Appeal No. 62 of 1957
Judge
Reported inAIR1959AP49
ActsHindu Marriage Act, 1955 - Sections 24 and 28
AppellantJalasutram Annapurnamma
RespondentJalasutram Ramakrishna Sastry
Appellant AdvocateT. Veerabhadrayya, Adv. in A.A.O. No. 263 of 1956 and ;M.D.Y. Ramamurthy, Adv. for G. Venkatarama Sastry, Adv. in LP.A. No. 62 of 1957
Respondent AdvocateT. Veerabhadrayya, Adv. in L.P.A. No. 62 of 1957 and ;M.D.Y. Ramamurthy, Adv. for G. Venkatarama Sastry, Adv. in A.A.O. No. 263 of 1956
Excerpt:
family - maintenance - sections 24 and 28 of hindu marriage act, 1955 - husband filed petition for dissolution of marriage - obtained order for dissolution - wife filed appeal - while appeal was pending she filed application for interim relief under section 24 - court directed husband to deposit amount in court - appeal by husband against such order of maintenance - amount fixed in respect of expenses as well as maintenance - held, no interference required as amount seemed to be quite reasonable. - - 5. as regards the amounts fixed by the learned judge in respect of expenses as well as maintenance, we do not think that any case has been made out for interference......no. 2779 of 1957 for interim relief under section 24 of the hindu marriage act (xxv of 1955). the learned judge directed the appellant to deposit a sum of rs. 80/- in court or pay the same to the counsel for the respondent in two monthly instalmentstowards expenses and to pay her maintenance atrs. 15/- per month from november, 1957.the appellant has preferred this appeal againstthat order. the letters patent appeal was directed to be posted along with the c. m. a., and boththe appeals have been posted today for disposal.3. the learned counsel for the wife represented that notwithstanding the order of kumarayya j., the appellant has not deposited the amount towards expenses and, in the circumstances, she expresses her inability to proceed with the civil miscellaneous appeal. we,.....
Judgment:

K. Subba Rao, C.J.

1. This is a Letters Patent Appeal against theorder of our learned brother, Kumarayya, J. In C. M. P. No. 2779 of 1957.

2. The appellant is the husband of the respondent. He filed O. P. No. 111 of 1955 and O. P. No. 5 of 1956 on the file of the Court of the District Judge of Masulipatnam for dissolution or his marriage with the respondent and obtained anorder for dissolution of the marriage. The respondent i. e., the wife, preferred C. M. A. No. 263, of 1956 against the order of the learned District Judge.

Pending the appeal, she filed C. M. P. No. 2779 of 1957 for interim relief under Section 24 of the Hindu Marriage Act (XXV of 1955). The learned Judge directed the appellant to deposit a sum of Rs. 80/- in Court or pay the same to the counsel for the respondent in two monthly instalmentstowards expenses and to pay her maintenance atRs. 15/- per month from November, 1957.The appellant has preferred this appeal againstthat order. The Letters Patent Appeal was directed to be posted along with the C. M. A., and boththe appeals have been posted today for disposal.

3. The learned counsel for the wife represented that notwithstanding the order of Kumarayya J., the appellant has not deposited the amount towards expenses and, in the circumstances, she expresses her inability to proceed with the Civil Miscellaneous Appeal. We, therefore, proceed to consider the Letters Patent Appeal on its merits.

4. In the Letters Patent Appeal, the learned counsel for the husband contends that the Court has no jurisdiction to order to the wife (the respondent in the L. P. A.) the expenses of the appeal under Section 24 of the Act. Section 24 reads as follows:

'Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding and monthly during the proceeding such sum, as having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable.'

The object of the section is to enable the husband or the wife, as the case may be. who has no independent income, to provide the other, so that the proceedings may be- conducted and she or he may be maintained during the pendency of the proceedings. But the learned counsel contends that the word 'proceeding' in Section 24 must be confined to the original proceeding on the ground that the original proceeding is the one under the Act, whereas an appeal against the order in that proceeding is one under the Civil Procedure Code. In support of this contention, reliance is placed upon the provisions of Section 28. The said section reads:

'All decrees and orders made by the Court inany proceeding under this Act shall be enforced inlike manner as the decrees and orders of the Courtmade in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force:xxxxx'

It is true that Section 28 confers a right of appeal by reference to any law. But nonetheless, but for Section 28, the aggrieved party cannot have a right of appeal against an order of dissolution of marriage or other orders under the Act, The right of appeal is one conferred under the Act and, therefore, it is a proceeding under the Act. That apart, any proceeding under the Act is a proceeding in respect of a right conferred under the Act.

That proceeding starts in the original Court and continues till it is disposed of by the appellate Court. It is a commonplace that an appeal is a continuation of the original proceeding. The fact that an appeal lies under the Civil Procedure Code against an order in a proceeding under the Act, will not make the appeal any-the-less a proceeding under the Act, for, the apneal also relates to the adjudication in respect of the rights conferred under the Act.

In whatever way the problem is approached, it is manifest that the appeal against an order in a proceeding under the Act is a proceeding under the Act. In this view, we hold that the appellate Courthas jurisdiction to make all interim order in terms of Section 24 of the Act.

5. As regards the amounts fixed by the learned Judge in respect of expenses as well as maintenance, we do not think that any case has been made out for interference. The order was made in the discretion of the learned Judge and it appears to us that the amounts fixed are very reasonable, having regard to the circumstances of the case, The Letters Patent Appeal fails and is dismissed with costs.

6. The respondent in the Civil MiscellaneousAppeal has not yet paid the amount fixed by thelearned Judge. We give him two weeks' time forpaying the sum of Rs. 80/- to the petitioner'scounsel. The appeal will be posted one weekthereafter for final disposal.


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