Skip to content


Smt. Sobhana Sen Vs. Amar Kanta Sen - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 20 of 1957
Judge
Reported inAIR1959Cal455
ActsHindu Marriage Act, 1955 - Sections 24, 25 and 28; ;Code of Civil Procedure (CPC) - Section 28
AppellantSmt. Sobhana Sen
RespondentAmar Kanta Sen
Appellant AdvocateG. Gupta Bhaya and ;Bimal Chandra Chatterjee, Advs.
Respondent AdvocateSachindra Chandra Das Gupta and ;Nirmal Chandra Mukherjee, Advs.
DispositionAppeal partly allowed
Cases ReferredAdaikappa Chettiar v. Chandrasekhara Thevar
Excerpt:
- .....on behalf of the husband. his contention is that no appeal lies against the order made by the learned judge. this is an important question which requires careful consideration.4. if the act itself had contained no provision for appeal, appeal would lie against orders or decrees made in the proceedings under the hindu marriage act, 1955, if under the code of civil procedure an appeal would have lain. this would be the result of the principle laid down in the case of adaikappa chettiar v. chandrasekhara thevar . the act, however, has made definite provisions as regards appeals and it is not necessary for us to consider the principle laid down in adaikappa's case.the provisions as regards appeals are contained in section 28 of the act which is in these words :'all decrees and orders.....
Judgment:

K.C. Das Gupta, J.

1. This appeal is against an order made by the District Judge, 24-Parganas on an application by tile wife for maintenance pendente lite and expenses of proceedings, under Section 24 of the Hindu Marriage Act, 1955. The husband started the proceedings under the Hindu Marriage Act and prayed for a decree of divorce. In the application under Section 24 of the Act, the wife, who is the appellant before us made a prayer for a sum of Rs. 3000 'or such other Bum as the Court may think reasonable and sufficient'' for the expenses of this suit and Rs. 650/-per month for her maintenance during the pendency of the proceedings. The learned District Judge has made an order directing the husband to pay maintenance pendente lite at the rate of Rs. 200/-per month with effect from the 1-5-1956. As regards the prayer for expenses of the proceedings, e passed the following order :

'I tentatively assess the probable cost of the respondent in this divorce proceeding at Rs. 500/-. The petitioner is directed to pay the respondent in this divorce proceeding at Rs. 500/-. The petitioner is directed to pay the respondent Rs. 200/- towards the aforesaid costs. This cost must be paid by 21-6-56.'

2. The wife now contends in appeal against the order that the amount of the maintenance pendente lite or the expenses for the proceeding are inadequate.

3. A preliminary objection was taken by Mr. Das Gupta on behalf of the husband. His contention is that no appeal lies against the order made by the learned Judge. This is an important question which requires careful consideration.

4. If the Act itself had contained no provision for appeal, appeal would lie against orders or decrees made in the proceedings under the Hindu Marriage Act, 1955, if under the Code of Civil Procedure an appeal would have lain. This would be the result of the principle laid down in the case of Adaikappa Chettiar v. Chandrasekhara Thevar . The Act, however, has made definite provisions as regards appeals and it is not necessary for us to consider the principle laid down in Adaikappa's case.

The provisions as regards appeals are contained in Section 28 of the Act which is in these words :

'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 ok the court made in the exercise of the 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.'

5. The question before us is one of construction of the words used by the legislature in this section. Two rival constructions require consideration. One is that by this section the legislature has provided that an appeal will lie against all decrees and orders made by the court in any proceeding under the Act and that the forum and other matters in connection with the hearing of the appeal would be, decided in accordance with the laws that may be in force for the time being. The other construction which is suggested is that this section does not say anything positive itself as regards appealability of decrees and orders but merely says that if an appeal lies against decrees an3 orders made in any proceeding under this Act under some law that may be in force at the time, then an appeal will lie and not otherwise.

6. In my opinion, the first construction should be preferred to the other construction that has been suggested. In the first place, it seems to me unreasonable to hold the legislature guilty of leaving the matter of appealability entirely at large, as it would be, if appealability was to depend on any law for the time being in force. It is much more reasonable in my opinion, to think that when the legislature took upon itself the task of making provisions as regards appeals, it intended to make definite provisions.

7. In the second place, it seems to me that the second construction suggested, viz., that appealability will depend on the law for the time being in force, would make the proviso wholly unnecessary. The proviso is that there shall be no appeal on the subject of costs only. If appealability was to depend on the law for the time being in force that is, in the absence of any other law, the provisions as regards appeals in the Code of Civil Procedure from decrees and orders and in cases heard on the Original Side of the High Court from judgments within the meaning of the Letters Patent there would be no point in making a provision that there shall be no appeal on the subject of costs only.

8. In the third place, I am of opinion that in speaking of decrees and orders in Section 28 the legislature had primarily in mind the different decrees for which provision had been made in the earlier sections, viz., a decree for nullity, a decree for judicial separation and a decree for divorce and also the different orders for which special provision had been made in the previous sections of the Act, viz., orders under Section 24 in the matter of maintenance pendente lite and expenses of proceedings, orders under Section 25 for permanent alimony and maintenance and orders as regards custody of children under Section 26. While the words 'all decrees and orders made by the court in any proceeding under this Act' may be wide enough to embrace certain other orders, it seems reasonable to me on examining the scheme of the Act as a whole that the legislature had in mind, when providing for decrees and orders made, those decrees and orders which are specially contemplated in proceedings under the Act. In the first place, it provides that these decrees and orders shall be enforced in like manner as decrees and orders of the court made in the exercise of original civil jurisdiction. Then it takes up the question of appealability and after saying 'may be appealed from' adds the words 'under any law for the time being in force.' It seems to me fair to think that these words, 'under any law for the time being in force,' used in respect of appeals, serves the same purpose as the words, 'in like manner as the decrees and orders of the court made in the exercise of the original civil jurisdiction are enforced', in the previous part of the section. Viewed from this angle, the position is that just as orders and decrees made in any proceeding under the Act shall be enforced in a particular manner, they will also be appealable but the appeals will be dealt with in a particular manner.

9. If the second construction suggested, viz., that appealability will depend on the law for the time being in force, and does not result directly from the section itself, is accepted, there will be obviously a great distinction between the finality of the decrees made by the court, such as, decrees for divorce, judicial separation or nullity and orders made by the court as provided under the special provisions of Sections 24, 25 and 26. It is, in my opinion, unreasonable to think that the legislature would make this distinction between the decrees made under the special provisions of the Act and the orders made under the special provisions of the Act in the matter of appeal while in the earlier part of this very section it has provided the same mode for the enforcement of the orders.

10. On consideration of all these, I have come to the conclusion that the inteintion of the legislaure was that all decrees and orders made by the court in a proceeding under the Act shall be appealable and that the words 'under any law for the time being in force' were added to indicate that the forum where the appeal would lie, viz. to the District Judge or the High. Court, and such other matters as regards procedure for the hearing of the appeals would be decided by the law on the subject for the time being in force.

11. The preliminary objection raised by Mr. Das Gupta is, therefore, rejected. On the merits, I am unable to find anything that will justify our interference with the orders passed as regards the amount. The learned Judge has considered the probable income of the husband and the probable income of the wife and has also considered the amount reasonably required by the wife for her maintenance. He came to the decision that she cannot manage to live on less than Rs. 225/-, and as her own independent income is about Rs. 25/-, he has ordered the husband to pay Rs. 200/-. On the question of costs, what he calls his tentative decision is that the probable cost of the respondent is Rs. 500/-. Nothing has been shown to us that would justify us in coming to a conclusion that Rs. 225/- is not on the whole a reasonable assessment of the wife's need for maintenance, nor that the learned Judge's assessment that Rs. 25/- is the net income of the wife is wrong, nor have we been shown anything which justifies interference with the learned Judge's assessment of the probable costs in the divorce proceedings at Rs. 500/-.

12. As already indicated, the learned Judge has ordered that the payment of the maintenance would be with effect from 1st May 1956. The well-known rule is that maintenance in such cases is allowed by the court from the date of service of notice. In giving his reasons for departure from this rule, the learned Judge says, 'I refuse maintenance from the date of service of notice in view of the delay on the respondent's part in coming up with the maintenance petition.' In my opinion, the learned Judge has acted arbitrarily in this matter. The notice was served, according to the statement in the memorandum of appeal, on the 2nd February 1956. The correctness of this statement in the memorandum of appeal has not been denied. When notice was served on the 2nd February 1956, it cannot be reasonably said that the wife made undue delay in coming to court on the 1st May 1956 for an order for maintenance. It is well-known that orders for maintenance are passed even at a very late stage of the proceedings. In my judgment, the learned Judge acted arbitrarily in the exercise of his jurisdiction in refusing to order payment of maintenance with effect from the date of service of notice.

13. I would, therefore, allow this appeal in part and order in modification of the order passed by the learned Judge, that the maintenance pendente lite must be paid by the husband at the rate of Rs. 200/- per month with effect from the 2nd February 1956.

14. The parties will bear their own costs.

15. There is a cross-objection praying for reduction of the amount ordered. We can find no substance in the prayer. The cross-objection is dismissed.

Debabrata Mookerjee, J.

16. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //