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Gurbaksh Singh Vs. Smt. Taran Jit - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A.O. No. 7 of 1977
Judge
Reported inAIR1977HP66
ActsHindu Marriage Act, 1955 - Section 28; ;Hindu Marriage (Amendment) Act, 1976 - Section 19; ;Marriage Laws (Amendment) Act, 1976 - Section 39(1)
AppellantGurbaksh Singh
RespondentSmt. Taran Jit
Appellant Advocate K.D. Sud, Adv.
Respondent Advocate Indar Singh, Adv.
DispositionAppeal dismissed
Cases ReferredSmt. Satish Bindra v. Surjit Singh Bindra
Excerpt:
- .....act as it then stood. section 28 as it then stood provided:'28. enforcement of, and appeal from, decrees and orders.--all decrees and orders made toy 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.' at that time the learned counsel for the husband raised an objection that section 28 did not create a right of appeal. this court by its judgment, dated september 24, 1975, reported as smt. taranjit kohli v. gurbaksh singh kohli, ilr (1975) him pra 663 repelling the contention of the husband-respondent held: 'an appeal.....
Judgment:

Chet Ram Thakur, J.

1. This appeal has been filed by Gurbaksh Singh against the order, dated 9th February, 1977, passed by the District Judge, Mandi, allowing the application under Section 24 of the Hindu Marriage Act (shortly called the Act) made by his wife Smt. Taran Jit for grant of maintenance pendente lite and expenses of proceedings consequent to application under Section 13 of the Act for dissolution of the marriage by a decree of divorce. The learned District Judge while allowing the application under Section 24 granted a sum of Rs. 50 (sic--Rs. 150?) per mensem from August 1972 to February 1975 and thereafter a sum of Rs. 235 per mensem till the date of disposal of the petition under Section 13 of the Act.

2. A preliminary point has been raised by the learned counsel for the respondent that the appeal is not maintainable in view of the amendment made in the Act by Act No. 68 of 1976. According to him, Section 28 as amended by the Act does not provide for an appeal against the order made under Section 24. This application, out of which the present appeal has arisen, was filed in September 1972 before coming into force of the amending Act. That application was disposed of earlier by the District Judge on November 4, 1974. The District Judge allowed a monthly maintenance of Rs. 150 pendente lite to the wife and he also allowed an amount of Rs. 200 as costs of the proceedings. Dissatisfied with that order, the wife filed an appeal in the High Court under the provisions of Section 28 of the Act as it then stood. Section 28 as it then stood provided:

'28. Enforcement of, and appeal from, decrees and orders.--All decrees and orders made toy 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.' At that time the learned counsel for the husband raised an objection that Section 28 did not create a right of appeal. This Court by its judgment, dated September 24, 1975, reported as Smt. Taranjit Kohli v. Gurbaksh Singh Kohli, ILR (1975) Him Pra 663 repelling the contention of the husband-respondent held:

'An appeal under Section 28 lies against all decrees and orders specifically mentioned in the Act. An order under Section 24 is one such order.'

Therefore, it is obvious that Section 28, as it then stood, permitted an appeal against all decrees and orders and the order made under Section 24 was also appealable. But now by Section 19 of the amending Act it has been provided that for Section 28 of the Act the following shall be substituted:

'28. Appeals from decrees and orders.--(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction;

(2) Orders made by the court in any proceeding 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 shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction;

(3) There shall be no appeal under this section on the subject of costs only; and

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.'

A bare perusal of Section 28, as amended would show that it makes only the decrees made by the court in any proceeding under this Act appealable. There is no mention of the orders as it stood under the old unamended Section 28.

3. The further question that arises is whether an order under Section 24 is a decree against which an appeal lies. This question whether an order passed in proceedings under Section 24 is an order or a decree came up for consideration before this Court in Brij Lal v. Smt. Maya Devi (1977 Hindu LR 82) and it has been held therein that a proceeding under Section 24 terminates in an order and not a decree. The Act has made clear distinction in its several provisions between an order and a decree. Therefore, in view of this rule laid down by this Court in a similar case it is manifest that the order in proceedings under Section 24 is not a decree but it is an order, which has specifically been omitted from the amended Section 28 so as to entitle the person against whom an order in proceedings under Section 24 of the Act is made to file an appeal against the same.

4. Again Section 39 of the Marriage Laws (Amendment) Act, 1976 takes away the right of appeal even if the proceedings were started before the amending Act came into force. Section 39 of the amending Act reads as follows:

'39. Special provision as to pending cases.--(1) All petitions and proceedings 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 effect 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.'

A look at the provisions of Section 39 (1) (i), therefore, makes it clear that a proceeding pending at the time when the amending Act came into force is to be dealt with and decided as if it has been originally instituted under the Hindu Marriage Act as amended by the amending Act. Therefore, a proceeding which had commenced prior to the enforcement of the amending Act shall -be treated to have been instituted under the amending Act. This order which is under challenge in this appeal was passed on 9th February 1977, whereas the assent to the Marriage Laws (Amendment) Act 1976 was accorded by the President on 27th May 1976 and, therefore, this appeal was obviously governed under the amending Act. Even otherwise, if the appeal had been pending before this Court prior to the commencement of the amending Act, still the appeal would have been governed under Section 28 as amended by Act No. 8 of 1976, which admittedly does not create any right of appeal against an order in any proceeding under the Act Under Section 24, the order passed by a court does not amount to a decree as stated above, rather, it is an order, against which, admittedly, under the amending Act No. 8 of 1976 no appeal is provided for.

5. Again, in this behalf. I may also refer to Smt. Satish Bindra v. Surjit Singh Bindra, (1977) 79 Pun LR 384 in which a similar view was taken that the plain language of the provisions of Section 19 of the Act, i. e. Marriage Laws (Amendment) Act which provides for substitution of new section for Section 28 of the old Act, clearly shows that an appeal now lies only against three kinds of orders under the Act, namely (i) where a decree is passed; (ii) where a final order is made in respect of permanent alimony under Section 25 or (iii) for the custody of minor children under Section 26. Therefore, in these circumstances, it is obvious that under Section 28 of the Act as it now stands after the amending Act an appeal is not provided for against an order made under Section 24 of the Act because it is not a decree.

6. In these circumstances the appeal fails and is hereby dismissed.

7. The second question is with regard to the cross-objections filed by the respondent. If the appeal fails, then the cross-objections also are not maintainable and the same are also dismissed.

Since the appeal fails on a legal point, therefore, the parties are left to bear their own costs.


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