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Gopendra Nath Basu Malik Vs. Sm. Prativa Rani Basu Mallik - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1573 of 1960
Judge
Reported inAIR1962Cal455,66CWN388
ActsHindu Marriage Act, 1955 - Sections 24 and 28; ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantGopendra Nath Basu Malik
RespondentSm. Prativa Rani Basu Mallik
Appellant AdvocateBiswanath Roy, Adv.
Respondent AdvocateManindra Nath Ghose and ;Sourindra Nath Roy Choudhary, Advs.
Excerpt:
- .....registered as title suit no 82 of 1959 of that court.2. while this suit was proceeding, the present opposite party, who was also the opposite party or the defendant or respondent in the above suit, applied, on september 5, 1959, for maintenance pendente lite and also for expenses of litigation, under section 24 of the above hindu marriage act. this application was opposed by the present petitioner, who contended, inter alia, that the said application was not maintainable in law at the instance of the aforesaid applicant and that, in any event, in the circumstances of this case, the present opposite party who was the said applicant was not entitled to anything by way of maintenance pendente lite or costs or expenses of litigation. the learned additional district judge however,.....
Judgment:
ORDER

P.N. Mookerjee, J.

1. This Rule arises out of a proceeding under Section 24 of the Hindu Marriage Act, 1955. Before the District Judge, 24 Parganas, the present petitioner, who is the husband, applied for restitution! of conjugal rights as against the opposite party, who is, admittedly, his married wife. The application was made on August 6, 1959, under Section 9 of the above Hindu Marriage Act, 1955, and, under the prevailing practice, it was registered as Title Suit No. 254 of 1959. Thereafter, the suit was transferred to the Fifth Court of the Additional District Judge at Alipore, where it was eventually registered as Title Suit No 82 of 1959 of that Court.

2. While this suit was proceeding, the present opposite party, who was also the opposite party or the defendant or respondent in the above suit, applied, on September 5, 1959, for maintenance pendente lite and also for expenses of litigation, under Section 24 of the above Hindu Marriage Act. This application was opposed by the present petitioner, who contended, inter alia, that the said application was not maintainable in law at the instance of the aforesaid applicant and that, in any event, in the circumstances of this case, the present opposite party who Was the said applicant was not entitled to anything by way of maintenance pendente lite or costs or expenses of litigation. The learned Additional District Judge however, allowed the opposite party's application and granted her maintenance, pendente Ute at the rate of Rs. 25/- per month with effect from September 5, 1959, and, in addition thereto a sum of Rs. 100/- as costs of litigation or expenses of the proceeding. Against this Order, the present Rule was obtained by the opposite party on May 2, 1960.

3. Having regard to the circumstances of this case and the urgency of the matter, in the interests of the parties the Rule was made returnable within one month, it appears from the Order Book before me that the Rule became ready as regards appearance, sometime towards the end of May, 1960. Strangely, however the records of the lower court, which were to beobtained from the learned District Judge, 24-Parganas, do not appear to have reached this Court before June 21, 1960. Be that as it may, the Rule became ready and was placed on the General List on June 21 1960, but it did not appear on the Daily List before possibly August, 1960, and, then also, it appeared before a Single Bench, sitting temporarily, and it receded to the background in spite of its urgency and in spite of its being a Fixed Rule as soon as the said Bench broke up. Thereafter, it appears, it did not come up in the Daily List before this day and, in the interval of about six or seven months, nothing appears to have been done either by the parties or by the office of this Court to bring up this Rule for hearing before any Bench. This delay is, indeed regrettable, as it has put the parties--and the Court also,--in the present matter in a somewhat awkward, difficult and embarrassing position. I have made this preliminary observation in order that greater care may be taken in future in the matter of transmission of records to this Court and for bringing up urgent matters in proper time for hearing before the Court.

4. I will now proceed to decide the Rule.

5. A preliminary objection was raised to the maintainability of the Rule by Mr. Ghose, appearing on behalf of the opposite party, that the order, complained against, is an appealable one under the law and that, accordingly, this Rule is incompetent. For the purpose of his above submission, Mr. Ghose referred me to Section 28 of the Hindu Marriage Act, 1955. I do not think, however, that that particular provision is of any assistance to Mr. Ghose on this particular question. That section contains no provision, making any decision appealable under it. All that it says is that the decisions under this Act, or, in other words, decrees and orders hereunder, may be appealed from under any law for the time being in force. For the appeal, therefore, reference must be made to some other law, which makes the particular decree or order appealable. There is a proviso to the section, which forbids appeals in the matter of costs only, even though an order in that behalf may be appealable under some other law. The proviso, thus, restricts the right of appeal, which might have been available under some other law under the main part of the section. For purposes of appeal, therefore, reference must be made to some other law, under which such appeal would He. Mr. Ghose could not draw my attention to any other law, under which the order in the present case would be appealable, In these circumstances, his preliminary objection to the competency of the Rule must fail and it is rejected.

6. On the merits, however, I am unableto accede to the argument of Mr. Roy on behalfof the petitioner that, under the above Act, thepresent opposite party who was the respondentin the main proceeding before the trial courtwas not entitled to make any application for themaintenance pendente lite, or costs under Section 24of the Act. Mr. Roy wants to read the word'respondent', as used in the relevant part of thesaid Section, namely, the words 'order the respondent', as the respondent in the main proceeding, or, in other words, his submission is that, if the main proceeding had been instituted by the husband, the wife would be liable to be proceeded against under the Section but would have no locus standi to make an application thereunder and vice versa. On the face of it, such an argument would be untenable and the language, used by the Legislature in the section itself, makes it quite clear that the word 'respondent', as used therein, refers to the respondent in the application for maintenance and/or costs. This will appear from the structure of the section itself which, after referring to the main proceeding, in which an application under Section 24 may be made, speaks of the making of the application and, in that context, refers to the petitioner and the respondent, thus obviously referring to the petitioner of the said application and the respondent thereto. The Section, therefore, when it speaks of an order upon the respondent and thus of the respondent's liability, obviously refers to the respondent to the application under the Section who may well be either the plaintiff (petitioner) or defendant (respondent or opposite party) in the main proceeding.

7. In the above view, the present opposite party would undoubtedly, be entitled to apply under the aforesaid Section 24 and, if her application stands on a firm basis, the respondent to that application, namely, the present petitioner, would be under a liability to pay her maintenance and/or costs. I would, accordingly, reject the above argument of Mr. Roy and hold that the application under Section 24 was perfectly maintainable in the court below at the instance of the present opposite party.

8. It only remains now to consider the question of the quantum of maintenance and costs, directed to be paid by the learned trial Judge. In the circumstances of this case I am not inclined to interfere with the said assessment, subject only to this that, if the present petitioner pays to the opposite party a consolidated sum of Rs. 350/- (Rupees three hundred and fifty only) on account of maintenance pendente lite and costs of litigation within the 20th of April next, no further payment need be made on account of maintenance pendente lite or costs in the court below under Section 24 of the above Act. In default, however, the order of the trial court will stand and this Rule will stand discharged.

9. As it appears that the suit before the trial court was ready for peremptory hearing before the records were dispatched to this Court and, as I have directed the payment of a consolidated sum on account of maintenance pendente lite and interim costs of litigation, as aforesaid, it will be only proper that the said suit should be heard out and disposed of as quickly as possible. I would, accordingly, direct the court below to take up the suit for hearing during the last week of April, or, at the latest by the first week of May, 1961.

10. The Rule is disposed of as above.

11. There will be no order as to costs of this hearing,

12. Let the records go down as quickly as possible.

13. Liberty to mention for further directions, if necessary.


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