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Smt. Satish Bindra Vs. Surjit Singh Bindra - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1445 of 1976
Judge
Reported inAIR1977P& H383
ActsHindu Marriage Act, 1955 - Sections 24 and 28; Marriage Law; Hindu Marriage (Amendment) Act, 1976 - Sections 19
AppellantSmt. Satish Bindra
RespondentSurjit Singh Bindra
Appellant Advocate Gurbachan Singh, Adv.
Respondent Advocate Bachittar Singh and; Manmohan Singh, Advs.
DispositionPetition allowed
Cases ReferredUsha v. Sudhir
Excerpt:
.....appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1..........of permanent alimony under section 25 or (iii) for the custody of minor children under section 26. right to appeal is not an inherent right, but is a statutory right which can be conferred only by law enacted by the competent legislature. the right of appeal having been restricted by section 19 of the amending act, the right originally residing in any person aggrieved of an order under section 24 of the act to prefer appeal against the same has now been taken away. so far as the applicability of the old or new section 28 of the act is concerned, the position is settled by section 39 of the amending act which provides as below:--'(1) all petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the marriage laws (amendment) act,.....
Judgment:
ORDER

R.S. Narula, J.

1. This is a petition for revision of the order of the Court of Shri Baldev Singh, Subordinate Judge First Class, Jullundur, dated Sept. 9. 1976, under Section 24 of the Hindu Marriage Act (25 of 1955) (hereinafter called the Act) allowing the petitioner a sum of Rs. 80 as litigation expenses and Rs. 50 per mensem as maintenance pendente lite during the pendency of the respondent's petition under Section 9 of the Act. The learned counsel for the husband raises a preliminary objection to the effect that the order passed by the trial Court under Section 24 of the Act is appealable under Section 28 thereof, and, therefore the revision petition cannot be entertained. There is no doubt that Section 28 of the original Act provided that all decrees or orders passed by the Court in any proceeding under the Act would be appealable but by Section 19 of the Marriage Laws (Amendment) Act, 1976, the following section has been substituted in place of original Section 28:--

'(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 He 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 S, 26 shall, subject to the provisions of Sub-section (3) be appealable if they are not interim orders, and every such appeal shall He to the court to which appeals ordinarily He 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.'

The plain language of the above-quoted provisions clearly shows that an appeal now lies only against three kinds of orders under the Act, namey (i) where a decree is passed; (ii) where a final order is made in respect of permanent alimony under Section 25 or (iii) for the custody of minor children under Section 26. Right to appeal is not an inherent right, but is a statutory right which can be conferred only by law enacted by the competent Legislature. The right of appeal having been restricted by Section 19 of the amending Act, the right originally residing in any person aggrieved of an order under Section 24 of the Act to prefer appeal against the same has now been taken away. So far as the applicability of the old or new Section 28 of the Act is concerned, the position is settled by Section 39 of the amending Act which provides as below:--

'(1) All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such court-

(i) if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act;

(ii) if it is a petition or proceeding under the Special Marriage Act, then so far as may be, as if it had been originally instituted therein under the Special Marrige Act, as amended by this Act.

(2) In every petition or proceeding to which Sub-section (1) applies, the court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the pleadings, insofar as such amendment is necessary to give effect to the provisions of Sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, as the case may be, for divorce.'

The amending Act came into force on May 27, 1976. The order under revision was passed on Sept. 9, 1976. On the date when the order under revision was passed any person aggrieved thereby had no right to appeal. That being so I have no hesitation in repelling the preliminary objection raised by the learned counsel.

2. So far as the merits of the petition are concerned, suffice it to say that the learned Subordinate Judge has, after reproducing the contentions of the parties and stating that the petitioner claimed Rs. 700 per mensem as maintenance expenses and Rs. 1,500 as litigation expenses and after taking notice of the defence of the husband to the effect that the petitioner had means to .maintain herself, straightway passed the order in the following' terms:--

'I have every reason to believe thatSmt. Satish Bindra has no independentsource of income to support herself and to meet the necessary expenses of thislitigation. I, therefore, allow this application and order Shri Surjit SinghEindra to pay Rs. 50 to her as maintenance pendente lite P. M. from 10-8-1976i. e., the date of filing of the application.Besides, he would give Rs. 80 to her aslitigation expenses.'

The husband has not preferred any petiption for revision of the order of melearned Subordinate Judge wherein hehas held that the wife has no independent source of income to support herself and to meet the necessary expensesof this litigation. The wife has come upIn revision on the ground that the judgment and order passed by the learnedlower Court are not supported by anyreason, and that she has not been allowed any opportunity to substantiate the allegations made by her.

3. Mr. Gurbachan Singh, who appears for the petitioners, has laid particular emphasis on the fact that a copy of an agreement executed earlier between the parties was on the record of the case before the trial Court in which the husband had agreed to pay to the petitioner Rs. 700 per mensem on account of maintenance. The factum of the copy of the agreement being on the record of the trial Court is denied by the learned counsel for the husband. Be that as it may, it is clear that the trial Court has not passed any order in accordance with law on the application of the petitioner. If the averments of the petitioner contained in her affidavit were not considered enough, she should have been afforded an opportunity to give supplementary affidavit or affidavits on any point required by the Court or if the Court so required even to lead evidence in the course of a summary inquiry, at the end of which proper order should have been passed. Since the order is not supported by any reason and does not discuss the pros and cons of the rival versions of the parties relating to the quantum of income of the husband, I have to set aside the order of the trial Court. I need not refer to the argument of the learned counsel for the petitioner relating to the quantum of maintenance allowance or the litigation expenses which should be allowed in such cases in connection with which he has referred to the judgment of the Delhi High Court in Mrs Arti Singh v. Kanwar Pal Singh, (1976) 78 Pun LR (D) 268 : (AIR 1977 Delhi 76), and the Division Bench judgment of this Court in Usha v. Sudhir, ILR (1973) 2 Punj & Har 248. It is for the trial Court to hear the parties on the question of quantum of litigation expenses and maintenance and to pass an appropriate order.

4. For the reasons assigned above, I allow this petition, set aside the order of the trial court, dated Sept. 9, 1976 and direct the learned Subordinate Judge to redecide the application of the petitioner in accordance with law in the light of the observations made in this order. The parties may appear in the trial Court on April 4, 1977.


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