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Rukhmanibai Vs. Kishanlal Ramlal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 105 of 1957
Judge
Reported inAIR1959MP187
ActsHindu Marriage Act, 1955 - Sections 24 and 28; Code of Civil Procedure (CPC) ; Courts Act
AppellantRukhmanibai
RespondentKishanlal Ramlal
Appellant AdvocateM.A. Khan, Adv.
Respondent AdvocateW.Y. Pande, Adv.
DispositionAppeal allowed
Cases Referred and Rameshwar Nath v. Kanta Devi
Excerpt:
.....for the time being in force' provided that there shall be no appeal on the subject of costs only. all decrees and orders made by the court in any suit or proceeding under this act shall be enforced and may be appealed from, in the 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 laws, rules and orders for the time being in force: to put it differently, the orders passed under the act are passed by the district court and to find out the court to which an appeal would lie, the relevant provisions of the civil procedure code or any other law like the courts act will have to be referred to; the person who applies for alimony under that section has been described as the applicant and the..........is therefore natural to find that in the civil procedure code which provides for appeals from orders passed under that code, there is no mention of any such orders. looking to the language of the section, it seems to me that the intention is to give a right of appeal in the case of every order passed under the act and to leave the forum and the procedure of the appeal to be determined by the relevant law for the time being in force.to put it differently, the orders passed under the act are passed by the district court and to find out the court to which an appeal would lie, the relevant provisions of the civil procedure code or any other law like the courts act will have to be referred to; but so far as the right of appeal is concerned it is granted under section 28 of the act.in.....
Judgment:

T.C. Shrivastava, J.

1. The respondent Kishanlal had filed an application against the appellant Rukmanibai for divorce under Section 15 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') in the Court of District Judge Indore. During the pendency of the proceedings, the appellant Rukmanibai filed an application under Section 24 of the Act for maintenance pendente lite and necessary expenses of the proceedings. This application was rejected by the Additional District Judge, Indore, on 29-8-1957 on the ground that the advantage of Section 24 of the Act is available only to a petitioner in the main proceedings. Hence this appeal.

2. Shri Pande for the respondent has raised a preliminary objection to the maintainability of the present appeal. He contends that under Section 28 of the Act, an appeal against an order rejecting an application under Section 24 is not tenable inasmuch as an appeal lies according to his interpretation of the section, against only those orders which are appealable under the Civil Procedure Code or any other law for the time being in force. He points out that under the Civil Procedure Code only the ordersmentioned in Section 104 read with Order 43 Rule 1, are appealable and an order under Section 24 of the Act is not such an order.

3. Section 28 of the Act runs as follows: '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.'

The relevant part relating to appeal has been underlined (here into ' ') by me above. These words do not make a correct grammatical reading and it is obvious that there has been some omission by inadvertence. The corresponding section in the Indian Divorce Act from which this provision has presumably been taken, is Section 55 which rues as follows:

'All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the 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 laws, rules and orders for the time being in force:

Provided that there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage; nor from the order of the High Court confirming or refusing to confirm such decree :

Provided also that there shall be no appeal on the subject of costs only.'

It seems that the words 'may be appealed from' which appear twice in this section have been inadvertently omitted from the draft of Section 28 of the Act.

4. Section 28 of the Act has been enacted with the intention of giving a right of appeal. If the right of appeal is to be inferred from the provisions of any other law, the section so far as it relates to appeal would be meaningless & the words underlined would be superfluous. It cannot be accepted that a right of appeal from orders which are passed under specific provisions of the Act should be provided for in any other law.

It is therefore natural to find that in the Civil Procedure Code which provides for appeals from orders passed under that Code, there is no mention of any such orders. Looking to the language of the section, it seems to me that the intention is to give a right of appeal in the case of every order passed under the Act and to leave the forum and the procedure of the appeal to be determined by the relevant law for the time being in force.

To put it differently, the orders passed under the Act are passed by the District Court and to find out the Court to which an appeal would lie, the relevant provisions of the Civil Procedure Code or any other law like the Courts Act will have to be referred to; but so far as the right of appeal is concerned it is granted under Section 28 of the Act.

In connection with Section 55 of the Indian Divorce Act which contains analogous provisions, it has been held in Robert Cameron v. Mrs. Phyllis Ethel, AIR 1937 Lah 176 and Noble Millicans v. Mrs. Gladys Millicans. AIR 1937 Lah 862 that an appeal lies against all orders passed by the District Court. It appears to me that the same interpretation should apply to the provisions in Section 28 of the Act. I accordingly hold that the appeal is tenable.

5. Coming to the merits of the appeal, I do not find myself in agreement with the view that the word 'respondent' in Section 24 of the Act has any reference to the respondent in original proceedings. The reason for enacting the provisions in Section 24 is obviously that a wife or husband who has no independent incomesufficient for her or his support or enough to meet the necessary expenses of the proceedings, may not be handicapped.

It is necessary on social and moral grounds that such a party should be able to maintain itself while the proceedings are pending and there is no freedom to contract another marriage. It is also necessary that a party who wants to defend the petition made on insufficient grounds should be able to do so without any financial difficulty. These considerations apply equally to a party, whether an applicant or a non-applicant in the main proceedings.

Accordingly, it seems to me that it is improper to interpret Section 24 as limited to applications by petitioners in the original proceedings only. If there is any ambiguity in the use of the word 'respondent' in that section, it has to be resolved in the light of the object of the enactment and I have no doubt that this section was intended to give relief to a party irrespective of the fact whether he or she is a petitioner or a respondent in the original proceedings.

6. If there is any doubt on this interpretation of Section 24, Section 25 definitely shows that it is correct. That section deals with permanent alimony and maintenance and the word 'respondent' has also been used there. The person who applies for alimony under that section has been described as the applicant and the opposite party has been described as the 'respondent'.

From the context, the two words used in that section clearly apply to the applicant and non-applicant respectively in the application filed under Section 25 and have no reference whatsoever to the petitioner and respondent in the main proceedings. Sections 24 and 25 have to be read together as they deal with different aspects of the same problem. If the words 'applicant' and 'respondent' in this section have been used to denote the parties to the application, the word 'respondent' in Section 24 also must have the same meaning.

7. The interpretation which I have put on Section 24 finds support in the decisions in Nanjappa v. Vimala Devi, AIR 1957 Mys 44 and Rameshwar Nath v. Kanta Devi, AIR 1957 Punj 85. In both these cases, it has been held that the word 'respondent' as used in section 24 of the Act has no reference to the parties in the original proceedings but refers only to the parties in the application under Section 24. Accordingly it has been held in these cases that an application for maintenance under Section 24 can be maintained by a person who is a respondent to the main proceedings.

8. Accordingly, I hold that the lower Courtwas in error in rejecting the application on theground that it was not tenable under Section 24 of theAct. The appeal is allowed. The order of theCourt dated 29-8-1957 is set aside. The Court shallnow proceed to decide the application on merits.Costs of these proceedings shall be borne as incurred.


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