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Baby Sagarika Jena (Rosy) and anr. Vs. Bishnu Charan Jena - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 122 of 1982
Judge
Reported inAIR1984Ori151
ActsHindu Marriage Act, 1955 - Sections 23(2), 26 and 28; Bengal, Agra and Assam Civil Courts Act, 1887 - Sections 13B and 21(1); Court Fees Act - Sections 7; Hindu Marriage and Divorce Rules, 1956 - Rule 3
AppellantBaby Sagarika Jena (Rosy) and anr.
RespondentBishnu Charan Jena
Appellant AdvocateS.C. Mohapatra and ;A.K. Sahoo, Advs.
Respondent AdvocateR.K. Mohapatra, ;A.N. Misra, ;B. Routray, ;U.C. Panda and ;N. Prusty, Advs.
Cases Referred(Nrusingh Charan v. Smt. Hemant Kumari
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........admittedly the present appellants are the children of the divorcees. during the pendency of the divorce proceeding in the court below, no application was made with respect to the maintenance and education of the two children (the present appellants), nor has any provision for their maintenance and education been made in the decree passed by the court. the petition under section 26 of the act was filed by the mother of the two appellants towards payment of maintenance and education expenses of the children on 18-1-80. 8. at this stage it would be useful to refer to section 26 of the act which provides : '26. custody of children.--in any proceeding under this act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and.....
Judgment:

B.N. Misra, J.

1. This appeal filed by the mother of the two minor appellants is directed against the order dated 12-2-1982 passed by the learned Subordinate Judge. First Court, Cuttack in Misc. Case No. 23 of 1980 fixing a sum of Rs. 250 per month in respect of each appellant as maintenance and education expenses and directing the respondent, father of the two minor appellants, to spend the aforesaid amount towards the maintenance and education of the appellants.

2. The facts of the case may be briefly noted. The respondent and the mother of the appellants were married according to Hindu Vedic rites at village Mallikapur, district Cuttack on 13-6-1974 Out of this wedlock, the two appellants were born. As the marriage did not prove 'successful', the respondent and his wife lived separately for more than a year. Thereafter, on 23-3-1979 they filed a joint petition under Section 13B of the Hindu Marriage Act. 1955 (hereinafter referred to as 'the Act') praying for a decree of divorce by mutual consent. This petition was registered as O. S. No. 16 of 1979. The decree for divorce was granted by the court by order dated 18-10-1979. Admittedly, the two minor appellants have been living with their mother. On 18-1-1980, the mother filed an application under Section 26 of the Act claiming maintenance and education expenses in respect of the two minor appellants. This application, filed after the decree of divorce, was registered as Misc. Case No. 23 of 1980. According to this application appellant No. 1 was born on 5-5-1976 and appellant No. 2 was born on 22-12-1978 out of the wedlock between the mother and the respondent and they are in the custody of the mother under her guardianship. The respondent, a Major in the Indian Army, draws, monthly emoluments of Rs. 3,000 approximately. The mother has only four acres of agricultural land in village Panikolli. The income from the agricultural land is just sufficient for her bare maintenance. On account of differences between the parents a decree of divorce by mutual consent was granted by the court by order dated 18-10-1979 and in the said decree no provision has been made for the maintenance and education of the appellants. It is further stated that each applicant would require approximately Rs. 3,000 per year towards maintenance and education expenses. The applicants have accordingly prayed that necessary provision be made by the court with respect to their maintenance and education.

3. In his objection, the respondent has challenged the maintainability of the application under Section 26 of the Act. It is stated that after the decree of divorce was granted to the parties, the court became functus officio and had no jurisdiction to entertain the application. It is admitted that the two appellants were born on the dates mentioned in the application filed by the appellants. It is stated that the mother has no authority under law to keen the minor children in her custody and that the interests of the minors shall be at jeopardy if the children remain with the mother. A competent court of law has already directed that the children shall remain with the respondent. The amount claimed as maintenance is stated to be high and excessive. The respondent has finally prayed that the petition filed by the mother on behalf of the children should be dismissed as he is ready and willing to take care of and look after the children.

4. Upon consideration of the respective cases of the parties, the learned Subordinate Judge passed the impugned order. The operative part of the order is extracted hereunder:

'That the Misc. Case is allowed on contest without costs. A sum of Rs. 250 per month is hereby fixed towards maintenance and education of each minor children petitioner Nos. 1 and 2 and opPosite party is hereby directed to spend the aforesaid amount towards the maintenance and education of the petitioners This will take effect from the date of this order.'

This order of the learned Subordinate Judge is under challenge in this appeal.

5. The respondent has filed a cross-objection in this court. The maintainability of the petition under Section 26 of the Act and the locus standi of the mother to file the said petition are challenged. It is also asserted that the learned court below committed a serious error in fixing Rs. 250 per month for each child and that the Quantum has been fixed without any basis and is otherwise high and excessive.

6. Mr. R.K. Mohapatra, learned counsel appearing for the respondent, has challenged the maintainability of the present appeal in this court. It is submitted that the main proceeding under Section 13B of the Act for divorce by mutual consent (O. S. No. 16/79) which was filed in the court of the learned Subordinate Judge. Cuttack was valued at Rs. 250 for the purpose of court-fee and jurisdiction. No valuation had been put by the appellants on their petition under Section 26 of the Act filed before the court below, although the appeal before this court has been valued at Rs. 15,000. It is contended that irrespective of the valuation stated in the memorandum of appeal and the amount of maintenance claimed, the valuation put in the main proceeding shall govern the forum of appeal and as such the appeal shall lie to the District Judge and not to this court. Mr. B.M. Patnaik, learned counsel appearing for the appellants has, on the other hand, submitted that the petition under Section 26 of the Act filed by the appellants is a petition for maintenance and in view of the provisions contained in Rule 3 (a) of the Hindu Marriage and Divorce Rules. 1956 requiring every proceeding under the Act to be registered as a suit and Section 7(ii) of the Court-fees Act. 1870 providing that the valuation in a maintenance suit shall be deemed to be five times the amount claimed to be payable in one year, the valuation of the petition filed by the appellant under Section 26 of the Act should be held to be Rs. 30,000, the maintenance having been claimed at the rate of Rs. 3,000 per year for each appellant. These rival contentions require careful examination.

7. As already noted, on 23-3-79 a joint petition was filed by the respondent and the mother of the two appellants under Section 13B of the Act in the court of the learned Subordinate Judge, Cuttack praying for a decree of divorce by mutual consent. This petition was valued at Rs. 250 and was registered as O. S. No. 16 of 1979, by order dated 18-10-79, the petition was allowed and the decree for divorce was sealed and signed on 27-10-79. Admittedly the present appellants are the children of the divorcees. During the pendency of the divorce proceeding in the court below, no application was made with respect to the maintenance and education of the two children (the present appellants), nor has any provision for their maintenance and education been made in the decree passed by the court. The petition under Section 26 of the Act was filed by the mother of the two appellants towards payment of maintenance and education expenses of the children on 18-1-80.

8. At this stage it would be useful to refer to Section 26 of the Act which provides :

'26. Custody of children.--In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.'

This section makes it clear that the court can pass an interim order with respect to the custody, maintenance and education of minor children during the pendency of any proceeding under the Act or incorporate it in the decree. It is also clear that the jurisdiction to pass orders with respect to the custody, maintenance and education of minor children continues even after the main proceeding initiated under the Act has come to an end. The expressions--'...... the court...... may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children......' and '...... the court may also from time to time revoke, suspend or vary any such orders or provisions previously made' indicate that the decree in the main proceeding does not terminate the power of the court to pass suitable orders for the custody, maintenance and education of the minor children and these orders may be modified, revoked or suspended from time to time. Section 26 further indicates that orders with respect to the custody, maintenance and education of minor children cannot be passed unless a proceeding under the Act is either pending or having been started has been decreed under the Act. The main proceedings under the Act are proceedings for:--

(1) restitution of conjugal rights--Section 9:

(2) judicial separation--Section 10:

(3) declaration of nullity of null and void marriages--Section 11:

(4) annulment of voidable marriage--Section 12: and

(5) dissolution of marriage by divorce on specified grounds--Section 13. judicial separation as an alternate relief on a petition for divorce--Section 13A and dissolution of marriage by divorce by mutual consent--Section 13B.

If the conditions contained in Section 23 of the Act are fulfilled to the satisfaction of the court, it is obligatory for the court to pass a decree granting the relief sought for in the proceedings referred to above. Sections 24. 25 and 26 deal with (i) maintenance pendente lite and expenses of proceedings. (ii) permanent alimony and maintenance, and (iii) custody, maintenance and education of children, respectively. Proceedings under these three sections stand as a class apart. A proceeding under Section 24 of the Act cannot be initiated unless a proceeding under the Act has already been initiated and is pending. Proceedings under Sections 25 and 26 of the Act cannot be started unless a proceeding under the Act has been initiated and is pending or a proceeding having been started has been decreed under the Act. Further, these three sections provide for passing of orders by the court which are not decrees though orders with regard to permanent alimony and maintenance under Section 25 of the Act and custody, maintenance and education of children under Section 26 of the Act may also be incorporated in the decree. Under Sub-section (1) of Section 28 of the Act, all decrees made by the court in any proceeding under the Act are appealable except on the subject of costs only and under Sub-section (2) of the same section orders made by the court under Sections 25 and 26 are also appealable provided they are not interim orders and do not relate to the subject of costs only. Thus the Act maintains a distinction between decrees and orders passed in proceedings under the Act. In AIR 1976 Ori 32 (Rama Kumari v. Meenaketan), a Bench of this Court.after extracting the provisions contained in Sections 24, 25 and 26 of the Act observed (at P. 35):--

'Thus there is provision for passing of orders under the Act which are not decrees. Orders of the court granting pendente lite maintenance and expenses of proceedings under Section 24, granting of permanent alimony and maintenance subsequent to the decree under Section 25 and giving direction of interim custody of children under Section 26 are orders and not decrees. If orders are passed under Sections 25 and 26 relating to permanent alimony and maintenance or custody of children in the decree itself, then such orders constitute component part of the decree and are assailable in the appeal against the decree itself.'

9. Section 9 of the Act provides that a petition for restitution of conjugal rights shall be made to the district court and Section 13B provides that a petition for dissolution of marriage by a decree of divorce by mutual consent shall be presented to the district court. Section 19 generally provides that every petition under the Act shall be presented to the district court. Under Section 3(b) of the Act. 'district court' means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in the Act. The State Government have issued the following notification:

'Law Department

Notification

The 30th November, 1966

No. 8304-I-J-30/66-Judl.--In exercise of the powers conferred by Clause (b) of Section 3 of the Hindu Marriage Act. 1955 (25 of 1955), the State Government do hereby specify that every court of principal Subordinate Judge in the State of Orissa shall have jurisdiction in respect of the matters dealt with in the said Act By order of the Governor

B.K. PATRA

Secretary to Government.'

By virtue of the aforesaid notification, the learned Subordinate Judae, Cuttack entertained the joint petition under Section 13B of the Act presented before him by the mother of the two appellants and the respondent. The prayer for divorce was decreed by the learned Subordinate Judge by his dt. 18-10-1979 passed in O. S. No. 16/79.

10. Reference may now be made to Section 28 of the Act which provides as follows :

'28. Appeal from decrees and orders.--(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of Sub-section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under Section 25 or Section 26 shall, subject to the provisions of Sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) EVERY appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.'

Thus, under Sub-section (1) appeals against decrees and under Sub-section (2) appeals against orders under Sections 25 and 26 shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. Sub-section (1) of Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 provides:

'21. (1) Save as aforesaid, an anneal from a decree or order of a Subordinate Judge shall lie--

(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees and

(b) to the High Court in any other case.'

In the present case, the joint petition for divorce was valued at Rs. 250 Therefore, in view of the provisions contained in Section 28(1) of the Act and Section 21(1) of the Bengal, Agra and Assam Civil Courts Act, 1887, the appeal against the decree of divorce granted by the learned Subordinate Judge by his order dt. 18-10-79 in O. S. No. 16 of 1979 would lie to the district court. This position is accepted. There is no dispute that appeal, if any, against the divorce decree in the main proceeding would in this case lie to the court of the District Judge and not to this court as the main proceeding is valued at Rs. 250. In this context, reference may be made to a Bench decision of this court reported in AIR 1978 Ori 163 (Nrusingh Charan v. Smt. Hemant Kumari), wherein it has been held (at p. 166):--

'It is unnecessary in our view to multiply authorities. This matter was heard alone with a batch of first appeals where the similar dispute regarding maintainability had been raised. A request was, therefore, made at the Bar that the guideline may be indicated regarding maintainability of appeals under the Act. We would accordingly hold:--

(1) Courts other than the principal Civil Court of original jurisdiction which by notification made under Section 3(b) of the Hindu Marriage Act are conferred with jurisdiction to entertain proceedings under the Act are not 'District Court proper' and irrespective of valuation an appeal would not lie against decrees of such Courts to the High Court.

(2) The appellate forum has to be determined in accordance with the provisions of the Bengal, Agra and Assam Civil Courts Act. Where the dispute is valued up to Rs. 5,000, the appeal would tie to the District Judge when the impugned decree is of a Court other than the principal Civil Court of original Jurisdiction, In a case where the valuation is above Rs. 5,000 and the decree is by a court other than the principal Civil Court of original jurisdiction, the appeal would lie to the High Court: and

(3) Where no valuation has been put in the proceeding and there is no material to indicate that the appeal is valued at more than Rs. 5,000, the appeal would also lie to the District Court and not to the High Court because under the provisions of the Bengal, Agra and Assam Civil Courts Act, only on a stated valuation, first appeals lie to the High Court.'

11. The next question to be considered is whether the appeal against the impugned order passed under Section 20 of the Act by the learned Subordinate Judge after the decree for divorce was granted lies to this court or to the court of the District Judge. Learned counsel for the appellants has submitted that once the divorce decree was sealed and signed, the proceeding for divorce came to an end and the subsequent proceeding under Section 26 of the Act relating to maintenance and education of the children is an independent proceeding and its valuation must be governed by Section 7(ii) of the Court-fees Act. 1870. According to the learned counsel, under Rule 3 (a) of the Hindu Marriage and Divorce Rules. 1956 made by this court, every proceeding under the Act shall be registered as a suit and therefore the proceeding under Section 26 of the Act initiated by the mother on behalf of her two children being a separate proceeding must also be registered as a suit and consequently the valuation of the proceeding under Section 26 of the Act shall be governed by the provision contained in Section 7(ii) of the Court-fees Act, 1870. As already noted, the maintenance is claimed by the two children at the rate of Rs. 3,000 each per year. Accordingly, the total amount claimed to be payable in one year works out at Rs. 6,000 and five times that amount is Rs. 30,000. If the contention of the learned counsel for the appellants is accepted, the present appeal before this court would be maintainable. However, for reasons stated hereunder. I have not been able to agree with this contention.

12. It is necessary to recall the following expressions contained in Section 26 of the Act:

'...... the Court...... may, after the decree. ...... make ...... all such orders and provisions......... as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.......'.

These words indicate that even if an order with respect to the custody, maintenance and education of children has not been made either by an interim order or by incorporation in the decree in the main proceeding, such an order can be made subsequently in the same manner as if the main proceeding for obtaining such decree were still pending. In Mulla's Hindu Law. 35th Edn., edited by Mr. S.T. Desai, pages 838 and 889, it is noted:

'The jurisdiction of the court to make provision for custody, maintenance and education of minor children under this section depends on the following requisites being fulfilled:

(i) The application must be made in any proceedings under the Act, and

(ii) it must relate to 'minor children'. The orders contemplated by the section may be made, varied, suspended or revoked from time to time and even after the termination of the proceedings by passing of any decree as if the proceedings were still pending.'

In N.R. Raghavachariar's Hindu Law (Vol. II) Seventh Edition, edited by Prof. S. Venkataraman, page 1116, it is noted:

'......... Even where the decree in the main petition provides for it the Court does not become functus officio but is entitled, on application made by either party by petition, to make further or other orders for the custody, maintenance and education of the children as if the Court still continues to be seized of the main proceeding.........'

With respect. I agree with the views expressed by the learned authors. The words used in Section 26 of the Act lead to the conclusion that when the court's jurisdiction under that section is invoked after the passing of the decree in the main proceeding, the court may make an order which might have been incorporated in the decree as if the main proceeding were still pending before it. Accordingly, a petition under Section 26 of the Act filed after the decree in the main proceeding need not be registered separately as a suit and therefore Section 7(ii) of the Court-fees Act. 1870 is not attracted to the present application under Section 26 of the Act. Thus, in view of the provisions contained in Sections 26 and 23(2) of the Act and Section 21(1) of the Bengal. Agra and Assam Civil Courts Act. 1887, it must be held that as the valuation in the main proceeding is Rs. 250, it shall govern the valuation of the petition under Section 26 of the Act arising out of the main proceeding irrespective of the amount of maintenance claimed by the appellants.

13. In the result. I hold that the present appeal lies to the court of the District Judge and not to this court. In view of this finding it would not be proper to express any opinion on the merits of the case. The memorandum of appeal and the cross-objection be returned to the parties for presentation to the proper court. No costs.


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