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Maharaj Singh Vs. Smt. Uma Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 41 of 1963
Judge
Reported inAIR1969All603
ActsSpecial Marriage Act, 1954 - Sections 36 and 39
AppellantMaharaj Singh
RespondentSmt. Uma Singh
Appellant AdvocateB.R. Tripathi, Adv.
Respondent AdvocateA. Banerji, Adv.
Excerpt:
family - right to appeal - sections 36 and 39 of special marriage act, 1954 - right of appeal against an order passed on an application under section 36 - held, appeal lies under section 39 against an order passed under section 36. - - --all decrees and orders made by the court in any proceeding under chapter v or chapter vi 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 the law for the time being in force:.....from the date of the decree or order.'2. this provision is pari materia with section 28 of the hindu marriage act. the words used therein are 'may be appealed from under any law for the time being in force.' the difference between the two provisions is that under section 28 of the hindu marriage act the word used is 'any' instead of 'the'. there is no substantial difference in the language of the two provisions. we have already held in civil revn. no. 910 of 1965 smt. sarla devi v. sri balwan singh air 1969 all 601 that an appeal lies under section 28 of the hindu marriage act against an order passed under section 24 of the same act.3. for the reasons given in that judgment we hold that an appeal lies under section 39 of the act against an order passed under section 36 of the act. we.....
Judgment:

Jagdish Sahai, J.

1. In this case the question referred to us by a learned single Judge of this Court is:--

'Does an appeal lie against an order passed on an application under Section 36 of the Special Marriage Act, 1954?'

Section 36 of the Special Marriage Act, 1954 (hereinafter referred to as the Act) reads:--

'Where in any proceeding under Chapter V of Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as, having regard to the husband's income, it may seem to the court to be reasonable.'

Section 39 of the Act reads:--'All decrees and orders made by the court in any proceeding under Chapter V or Chapter VI 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 the law for the time being in force:

Provided that every such appeal shall be instituted within a period of ninety days from the date of the decree or order.'

2. This provision is pari materia with Section 28 of the Hindu Marriage Act. The words used therein are 'may be appealed from under any law for the time being in force.' The difference between the two provisions is that under Section 28 of the Hindu Marriage Act the word used is 'any' instead of 'the'. There is no substantial difference in the language of the two provisions. We have already held in Civil Revn. No. 910 of 1965 Smt. Sarla Devi v. Sri Balwan Singh AIR 1969 All 601 that an appeal lies under Section 28 of the Hindu Marriage Act against an order passed under Section 24 of the same Act.

3. For the reasons given in that judgment we hold that an appeal lies under Section 39 of the Act against an order passed under Section 36 of the Act. We are of the opinion that in the present case the appeal was competent. Let the papers be returned to the learned single Judge with the answer aforesaid.


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