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Nirmla Devi Vs. Ram Dass - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 26-M of 1970
Judge
Reported inAIR1973P& H48
ActsHindu Marriage Act, 1955 - Sections 9, 24 and 28
AppellantNirmla Devi
RespondentRam Dass
Cases Referred and Dr. Tarlochan Singh v. Smt. Mohinder Kaur
Excerpt:
.....introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent 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..........petition under section 24 of the act. the learned court of first instance was of the view that the main proceedings having terminated, there was no question of passing any orders for interim maintenance and that the costs of litigation, which had been allowed to the appellant, could be realised in execution proceedings.4. the learned counsel for the appellant has not been able to cite any authority in support of his argument that the trial court has not taken the correct view in the matter. as observed by a single bench of this court in dr. yoginder pal soni v. smt. padma soni, (1970)72 punj lr 878, the main object underlying section 24 is that neither party may suffer by his or her inability to conduct the proceedings for want of money or expenses. according to this ruling, maintenance.....
Judgment:

1. This is an appeal against an order of the Court of first instance dismissing an application filed by the appellant for maintenance pendente lite and expenses of proceedings under Section 24 of the Hindu Marriage Act, 1955, (hereinafter briefly referred to as 'the Act').

2. Shri Suraj Parkash Gupta, the learned counsel for the respondent, has raised the preliminary objection that no appeal is competent against an order passed by the trial Court under Section 24 of the Act. It has, however, been held by two Single Benches of this Court in Dr. Tarlochan Singh v. Smt. Mohinder Kaur, AIR 1961 Punj 508 and Sunder Singh v. Smt. Manna Sunder Singh, AIR 1962, Punj 127, that an order awarding maintenance pendente life and expenses of proceedings under Section 24 would be appealable under Section 28 of the Act. There is a conflict of decision amongst the order High Courts but I see no reasons why I should not follow the two rulings of this Court on the point. The objection raised by Shri Gupta is, therefore, overruled.

3. The appellant's husband Shri Ram Dass respondent had filed a petition against the appellant in the trial court on 7-10-1969 for restitution of conjugal rights under Section 9 of the Act. The appellant had been served with notices that petition on 5-12-1969 and had filed her application for interim maintenance and litigation expenses on 14-1-1970. When the case was called for hearing on 19-2-1970, Ram Dass, husband of the appellant, was absent and his petition under Section 9 of the Act was dismissed with costs in default of his appearance. The two counsel appearing for the appellant, however, insisted that orders should be passed on the appellant's petition under Section 24 of the Act. The learned court of first instance was of the view that the main proceedings having terminated, there was no question of passing any orders for interim maintenance and that the costs of litigation, which had been allowed to the appellant, could be realised in execution proceedings.

4. The learned counsel for the appellant has not been able to cite any authority in support of his argument that the trial court has not taken the correct view in the matter. As observed by a Single Bench of this Court in Dr. Yoginder Pal Soni v. Smt. Padma Soni, (1970)72 Punj LR 878, the main object underlying section 24 is that neither party may suffer by his or her inability to conduct the proceedings for want of money or expenses. According to this ruling, maintenance pendent lite should be granted from the date of the filing of the application under Section 24 of the Act. The appellant had claimed interim maintenance from the date on which the notice had been served on her. The necessity for passing any interim orders would come to an end with the termination of the main proceedings and there would be no question of the appellant trying to defend any proceedings after her adversary had withdrawn from the contest. There would hardly be any occasion for making an interim provision for the defence of a case that had already concluded.

5. In Shrimati Hardev Kaur v. Shri Panjrattan Singh, (1965)67 Punj LR 485 and Dr. Tarlochan Singh v. Smt. Mohinder Kaur, AIR 1963 Punj 249, the view taken was that an order passed by the Court of first instance under Section 24 would not enure for the benefit of the party after the proceedings had concluded in that court. The appellant could, if at all, be granted interim maintenance in the present case for a period of a little over a month from 14-1-1970 to 19-2-1970. The main proceedings having come to an end, she can be left to pursue her normal remedies for having her monthly maintenance allowance determined on a more permanent basis. The argument that the appellant has borne heavy expenses as she had engaged two lawyers in this case is besides the point. The reasonable costs which can legally be assessed have been allowed to her. She does not appear to have been hampered in any manner in the defence of her case by the absence of any order for the payment of interim maintenance and litigation expenses. She has been reimbursed by the lower Court by the lower Court in respect of the taxable costs and can take out execution for their recovery. She can also enforce her right to maintenance in the normal manner.

6. The main sanction behind an order for payment of interim maintenance and litigation expenses is that in cases of non-compliance, the defaulting party can be debarred from prosecuting or defending the proceedings. In this case, the Court would be passing an order after the principal means for its enforcement have been taken away. The courts should avoid passing orders which cannot be effectively enforced.

7. I see no grounds for interference and dismiss this appeal without any order as to costs.

8. Appeal dismissed.


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