D.P. Gupta, J.
1.This is an appeal against an order passed by a learned Single Judge of this Court on the wife's application under Section 24 of the Hindu Marriage Act (hereinafter called 'the Act).
2. The respondent filed a petition for divorce before the District Judge Jodhpur in which a decree for divorce was passed on January 4, 1977. The appellant Smt. Priti Parihar filed an appeal in this Court against the aforesaid decree. Along with the appeal she also filed an application under Section 24 of the Act praying for grant of interim maintenance and expenses of the appeal. The learned Single Judge by his order dated 15-4-1977. directed the respondent to pay to the appellant a sum of Rs. 200/- per month by way of maintenance pendente lite and also awarded her a sum of Rs. 400/- by way of expenses of the appeal. This order has been challenged by the wife in this appeal.
3. A preliminary objection has been raised in respect of the maintainability of the appeal and it, has been urged by the learned Counsel for the respondent that on account of the provisions of Section 39 of the Marriage Laws, (Amendment) Act, 1976 (Act No. 68 of 1976) (hereinafter referred to as 'the Amending Act'), the newly substituted Section 28 has been made applicable to all orders passed Under Section 24 of the Act the impugned order no is longer appealable. The provision of sub-Section (b) o' Section 4 of the Act have been relied upon by the learned Counsel in support of the submission that Section 18 of the Rajasthan High Court Ordinance (hereinafter called the Ordinance is excluded from its operation, so far as the matters provided under the Act are concerned. Lastly, it has been urged that the order passed by the learned Single Judge is an interim order and even if Section 18 of the Ordinance is applicable, no appeal is maintainable against the impugned order. learned Counsel for the appellant, on the other hand, contended that Section 28 of the Act confers a right of appeal in certain matters and does not take away the existing right of appeal contained in Section 18 of the Ordinance and that the amendment introduced by the Amending Act did not bring about any change in this respect. It was also urged that the impugned order amounts to a 'judgment within the meaning of Section 18 of the Ordinance.
4. Section 28 of the Act, as it stood prior to its amendment by the Amending Act reads as under:
Section 28. Enforcement of, and appeal from, decrees and orders: 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 the original civil jurisdiction are enforced & 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.
After its amendment by the Amending Act No. 68 of 1976, sub-Section (2) of Section 28, which is relevant for our present purpose, reads as under:
28. Appeals from decrees and orders:
(2) Orders made by the court in any proceedings 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 all lie to the court to which appeals ordinarily lie from the decision of the court given in exercise of its original civil jurisdiction.
A bare reading of the provisions of Section 28 before and after its amendment by the Amending Act makes it amply clear that although all decrees and orders made by the court in the proceedings under the Act were appealable earlier, yet after the amendment only the orders passed by the court under Sections 25 and 26 in the proceedings under the Act are appealable now, if they are not interim orders, besides all decrees made by the court in the proceedings under the Act, which have been made appealable under sub-Section (1) of Section 28 of the Act as amended.
5. Now the question which arises for determination is whether an appeal against the orders passed under other provisions of the Act, apart from Sections 25 and 26 of the Act, in pending proceedings can now be appealed against after the coming into force of the Act No. 68 of 1976 on May 27, 1976 Section 39 of the Amending Act No. 68 of 1976 reads as under:
39. Special provision as to pending cases:
(1) All petitions and proceeding 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 Marriage 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, in so far as such amendment is necessary to give affect 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.
6. Sub-section (1) of Section 39 of the Amending Act makes the provisions of the Act, as amended by Act No. 68 of 1976, applicable to all pending proceedings under the Act and directs that the proceedings pending at the time when the aforesaid Amending. Act came into force shall be dealt with and decided by the Court 'as if it had been originally instituted' under the Act as amended by the Amending Act. Thus the aforesaid provisions creates a legal fiction in respect of the pending proceedings under the Act, which after the date of the coming into force of the Amending Act would be deemed to have been originally instituted under the Act as amended. It is well settled that a right of appeal is a right vested in a litigant at the time of institution of the original proceedings and continues and enures to his benefit throughout the period the litigation subsists, but it is also equally well established that even a vested right can be taken away by the Legislature either by express provision or by necessary intendment. On account of deeming provisions contained in sub-Section (1) of Section 39 of the Amending Act all proceedings pending at the time of the coming into force of the Amending Act will have to be dealt with and decided as if they were originally instituted under the Amended Act, with the result that in such pending proceedings the right of appeal would also be governed by the provisions of Section 28 of the Act as amended by the Amending Act No. 68 of 1976. There is thus no doubt that the Amending Act takes away the right of appeal in respect of other orders, except those expressly provided for by Section 28 of the Amended Act, on, account of the provisions of Section 39(1) of the Amending Act. Therefore, if an order under Section 24 of the Act is passed now by a court in any proceedings which were pending at the time of commencement of the Amending Act No. 68 of 1976, then an appeal against such an order would not be maintainable in this Court. A similar view has also been expressed by a Division Bench of the Madhya Pradesh High Court in Radhayshyam Gupta v. Laxmibai 1977 Jab Law Journal 355.
7. Now the further question that arises in the present case is as to whether an appeal against an order passed, Under Section 24 of the Act in pending proceedings, be a learned Single Judge of this Court would lie after the amendment of the Act by the Amending Act. In this respect the provisions of sub-Section (b) of Section 4 are very material as they give over-riding effect to the provisions of the Act Sub Section (b) of Section 4 provides that any other law in force immediately before the commencement of the Act shall cease to have effect so far as it is inconsistent with any of the provisions of the Act. It may be relevant to point out that it was because of the over-riding effect given to the provisions of the Act by Section 4(b) thereof an appeal was maintainable before the amendment of the Act against all orders made by the court under the Act. By virtue of Section 104 read with Order XLIII, Rule 1 of the Code of Civil Procedure, an appeal could lie only from the orders enumerated in Order XLIII, Rule 1 of the Code and from no other orders and Section 21 of the Act made the Code of Civil Procedure applicable to all proceedings under the Act, subject to other provisions contained in the Act. The over-riding effect given to the provisions of the Act by Section 4(b) thereof would exclude the application of the provisions of Section 18 of the Ordinance in so fit as they are inconsistent with the provisions of sub-Section (2) of Section 28 of the Act as amended. In Garikapati v. Subbiah Choudhary : 1SCR488 S.B. DAS, CHIEF justice, as he then was, succinctly laid down the well established principles, relating to the effect of amending provisions to an existing right of appeal, as under.
(1) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such, right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
8. Shah J., speaking for the Court in Union of India v. Mohind a Supply Co. : 3SCR497 expressed the view that Section 39 of the Arbitration Act restricted the right of appeal, which was otherwise available under the Letters Patent against the order passed by a Single Judge of a High Court. It was pointed out by Shah J. in the aforesaid case, that the Arbitration Act was a consolidation and Amending Act and as it was substantially a Code relating to arbitration, Section 39 thereof restricted the right of appeal to the matters enumerated therein and took away the right of appeal conferred by other Statutes including the Letters Patent. In our view, the aforesaid dictum of Shah J., is applicable o the provisions of the Act as well, which was connected to amend & codify the law relating to the marriages among the Hindus. Moreover, it will be fair to assume that by the amendments introduced in the Act by the provisions of the Amending Act No. 68 of 1976, the Legislating made a deliberate departure from the law prevailing before the amendment in respect of certain matters including the right of appeal. It appears that the Legislature intended by substituting new Section 28 by the Amending Act No. 68 of 1976 and making the same applicable to pending proceedings by enacting Section 39(1) therein, to expressly restrict the right of appeal to all decrees and orders passed under Sections 25 and 26 of the Act only, leading to the inevitable consequence that no appeal would be maintainable against the order passed under other sections of the Act., apart from Sections 25 and 26 thereof. M. Bhoot, learned Counsel for the appellant, pointed out that in Section 39 of the Arbitration Act it was expressly provided that an appeal shall lie against the orders specified therein, and from no other orders' and as such there was an express provision prohibiting appeals from orders other than those enumerated in that section There is no doubt that such words do not o;cur in Section 28 of the Act as amended, but the necessary implication of substituting new Section 28 providing an appeal against the orders passed under two sections only viz. Ss, 25 and 26 of the Act, is that appeals against the orders passed under other sections would not be maintainable. Our view is further reinforced when Section 28(2) of the Amended Act is read in conjunction with Section 4(b) of the Act. We, therefore, hold that an Appeal against an order passed under any other section of the Act except Ss; 25 and 26 thereof, in any pending proceeding is barred by necessary intendment, although there is no express prohibition in respect thereof. Of course all decrees are appealable as provided in sub-Section (1) of Section 28 of the Act. We may observe that if this view is not taken an anamalous situation would arise in as much as an order passed under Section 24 of the Act in pending proceedings by a District Judge would become final in the sense that no appeal would lie against it, yet if such an order under Section 24 of the Act is passed by a learned Single Judge of this Court in a pending proceeding before him, then an appeal would lie against such an order. We are of the view that the legislature never intended that such an anomalous situation should be created by amending Section 28 by the Amending Act and applying the same to pending proceedings, by virtue of the provisions of Section 39(1) thereof. In this view of the matter, it is not necessary for us to decide the further question which has been raised before us as to whether the order passed under Section 24 of the Act is a judgment within the meaning of Section 18 of the Ordinance.
9. As the matter was argued on merits before us we may like to make our observations on merits as well It was not disputed by the parties that at the time when the learned District judge determined the amount of interim maintenance payable to the wife by the husband as Rs. 200/- per month, the gross income of the husband was Rs. 1475/- per month and in our view the very fact that the gross income of the husband has now been raised to Rs. 2378/- per month, shows that there has been an increase of about Rs. 900/- in his gross income during this period. It is also not disputed before us that the wife has the custody of the female child borne of the marriage. Accepting the principle applied by the learned Single Judge that ordinarily the interim maintenance should be allowed at the rate of 1/5 of the net income of the husband, it appears that in view of the aforesaid increase in the income of the husband fresh determination relating to the interim maintenance payable to the wife was desirable in this case. In the first place, the net emoluments of the husband now are Rs. 1571/- per month, on the basis of the 'Pay Slip' of the husband for the month of February 1977, where larger amount has been deducted by way of income-tax than is otherwise payable in respect of his monthly income. It is well known that in case of salaried people, like the husband in this case, if the amount of income tax paid during the earlier months falls short then the remaining amount is deducted from the 'Pay Slip' of the month of February, which relates to the salary last payable during that financial year. It was brought to our notice that in the month of November 1976 although the gross income of 'he husband was less, yet the net income was about Rs. 1660/- i.e. about Rs. 90/- more than the amount shown in the 'Pay Slip' of February 1977. Secondly, we do not think that the deductions claimed out of the income of the husband in respect of insurance, transport and house rent, amounting to Rs. 575/- could at all be justified. Insurance premia paid by the husband is by way of saving while the amounts claimed towards transport & house rent are expenses alleged to be incurred by the husband, which could not legitimately be deducted for arriving at his not income. Thus even if Rs. 1571/- is taken as the net income of the husband, there does not appear to be any reason in this case to depart from the normal rule of awarding 1/5th of the ret income of the husband as interim maintenance to the wife under Section 24 of the Act.
10. Mr. Calla, learned Counsel for the respondent, urged that it is not a hard and fast rule that 1/5th of the net income of the husband should be awarded by way of interim maintenance to the wife. It is of course undisputed that the award of maintenance pendente lite is a matter of discretion of the court, but we must add that this discretion is to be exercised on sound legal principles. It was held by this Court in Mukeshkanwar v. Ajeet Chand that in the absence of special circumstances interim maintenance should be allowed@ 1/5th of the not income of the husband after making deductions of the amounts payable on account of income tax & provident fund. We see no reason in the present case to depart from the ordinary rule laid down in the aforesaid decision as no special circumstances have been brought to our notice, nor have been mentioned by the learned Single Judge in his order. The fact that the appellant has been receiving interim maintenance Rs. 200/- per month throughout the litigation before the trial court, when the income of the husband was much less is hardly a ground or circumstance for not applying the ordinary rule referred to above to the facts of this case, when it has been brought to the notice of the Court that the gross income of the husband has increased by about Rs. 900/- since the interim maintenance amount was fixed by the learned District Judge in the proceedings before him. It is needless to stress that the amount of interim maintenance payable to a wife should undergo a corresponding increase with the increase in the husband's emoluments, in the absence of special circumstances.
11. As regards the amount of expenses of the appeal, learned Counsel for the appellant did not dispute that the amount spent in respect of typing of written arguments submitted on behalf of the appellant before the learned District Judge did not form part of the expenses of the appeal in this Court and as such the appellant was not entitled to the reimbursement of the said amount in the proceedings before the learned Single Judge. However, it appears that about Rs. 250/- have been incurred by the appellant towards expenses, including the court fees, typing charges etc. but excluding the counsel fees. We are of the opinion that besides the sum of Rs. 250/ incurred by way of expenses of stamps and typing etc. a reasonable amount should be payable to the appellant by way of counsel's fee, taking into consideration the fact that the appeal is a contentious one.
12. The learned Counsel for the respondent conceded before us that the order passed under Section 24 relating to interim maintenance and expenses of litigation is an interim one and can be altered from time to time by the court which passed it. We have no doubt in our mind, that if a proper application is made by the appellant before the learned Single Judge he may re-examine the question of fixing the quantum of interim maintenance and expenses afresh and in doing so he may take into consideration the various factors adverted to by us.
13. With the aforesaid observations the appeal is dismissed as the same is not maintainable. The parties are, however, left to bear their own costs of this appeal.