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Dr. Tarlochan Singh Vs. Smt. Mohinder Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 6/M of 1960
Judge
Reported inAIR1961P& H508
ActsHindu Marriage Act, 1955 - Sections 24 and 28
AppellantDr. Tarlochan Singh
RespondentSmt. Mohinder Kaur
Appellant Advocate D.R. Manchanda, Adv.
Respondent Advocate L.D. Kaushal, Adv.
Cases Referred and Rukhmanibai v. Kishan Lal Ramlal
Excerpt:
.....decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of..........civil procedure or any other enactment. for this contention, he relies on a decision of the andhra pradesh high court in saraswathi v. krishna murthy, air 1960 andh pra 30 wherein a similar contention was advanced and had prevailed.3. mr. manchanda, learned counsel for the appellant, however, draws my attention to the decisions of the calcutta and madhya pradesh high courts respectively in smt. sobhana sen v. amar kanta air 1959 cal 455 and rukhmanibai v. kishan lal ramlal, air 1959 madh pra 187 wherein an order under section 24 of the act has been held to be appealable. i am inclined to follow the view of the calcutta and the madhya pradesh high courts in preference to the view propounded by the andhra pradesh high court.if i accept the view of the andhra pradesh high court, the.....
Judgment:

D.K. Mahajan, J.

1. In a husband's petition under Section 10 of the Hindu Marriage Act (No. 25 of 1955) for judicial separation, the wife made an application under Section 24 for maintenance and expenses for litigation pendente lite. This application was granted by the trial Court on the 23rd of December, 1959. He allowed Rs. 80/- p.m. as maintenance and Rs. 200/- for litigation expenses. Against this decision, the Present appeal has been preferred by the husband.

2. Mr. L. D. Kaushal, who appears for the respondent-wife, raises a Preliminary objection that the order under Section 24 is not appealable. Section 28 of the Act which deals with appeals is in these terms :

'28. 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.'

Basing himself on the words 'appealed from under any law for the time being in force' he argues that no appeal from an order under Section 24 of the Act is provided under any law for the time being in force, namely, the Code of Civil Procedure or any other enactment. For this contention, he relies on a decision of the Andhra Pradesh High Court in Saraswathi v. Krishna Murthy, AIR 1960 Andh Pra 30 wherein a similar contention was advanced and had prevailed.

3. Mr. Manchanda, learned counsel for the appellant, however, draws my attention to the decisions of the Calcutta and Madhya Pradesh High Courts respectively in Smt. Sobhana Sen v. Amar Kanta AIR 1959 Cal 455 and Rukhmanibai v. Kishan Lal Ramlal, AIR 1959 Madh Pra 187 wherein an order under Section 24 of the Act has been held to be appealable. I am inclined to follow the view of the Calcutta and the Madhya Pradesh High Courts in preference to the view propounded by the Andhra Pradesh High Court.

If I accept the view of the Andhra Pradesh High Court, the provision of appeal in Section 28 of the Act becomes wholly meaningless, for no appeal against an order would be competent and this will lead to far-reaching consequences. The language of the section is somewhat defective, but the intention seems to be clear that an appeal against the orders under the Act was sought to be provided for, I Would, therefore, repel the preliminary objection.

4. Coming to the merits so far the provision for litigation expenses is concerned, it cannot be said to be either excessive or unreasonable. On the other hand, it errs on the side of meagreness,

5. As regards the provision for Rs. 80/-p.m. as maintenance, the learned Judge has not attached due weight to the fact that the wife is earning Rs. 80/- and up to this date she has never made any application against the husband for maintenance. Considering the means of the husband, I reduce the amount of Rs. 80/- to Rs. 50/-p.m.

6. The trial Court will allow the appellant three months' time to make the payment before it puts into operation its order under appeal with the modification made by me.

7. For the reasons given above, I modify the order of the trial Court firing the maintenance of Rs. 80/- and substitute therefor Rs. 50/. p. m.; otherwise the order granting maintenance and litigation expenses will stand.

8. There will be no order as to costs.


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