Suresh Prasad vs Smt. Manorama Debi on 28/3/1972

JUDGMENT

Shiveshwar Prasad Sinha, J.

1.This civil revision application is by the husband, Suresh Prasad. It is directed against an order dated 17th May, 1971 passed by Subordinate Judge, 1st Court, Arrah, in Title Suit No. 146 of 1970, under Section 24 of the Hindu Marriage Act, 1955 (Act 25 of 1955) (hereinafter to be referred to as 'the Act') directing the husband to Pay to his wife, the opposite party, maintenance pendente lite at the rate of Rs 75/-per month and a sum of Rs. 200/- to meet the expenses of the proceeding. This application was originally placed for hearing before Untwalia. J. (as he then was) who has been pleased to refer this matter to a Division Bench. That is how this matter is now before this Bench.

2. The petitioner and the opposite party got married on the 9th February. 1957. In 1970 the petitioner filed a petition under Section 13 of the Act for dissolution of their marriage by a decree of divorce on the allegations, inter alia, that the opposite party surreptitiously left the petitioner's house carrying away with herself ornaments and other articles and was now residing with her father where she had started a grocery shop and that she was living in adultery. The said petition was numbered as Title Suit No. 146 of 1970 of the Court of the Subordinate Judge. 1st Court. Arrah. The opposite party by her written statement, filed on 22nd February. 1971, has challenged the allegations made against her.

On the 17th March. 1971, the opposite party filed a petition under Section 24 of the Act praying for award of Rs. 300/- as expenses to prosecute her defence in the said title suit and Rupees 100/- per month as maintenance pendente lite. It is not necessary to go into the other statements made by the opposite party in support of her petition under Section 24 of the Act. The learned Subordinate Judge on hearing the parties passed an order allowing monthly maintenance at the rate of Rs. 75/-and a sum of Rs. 200/- towards the expenses for the litigation to be paid by the petitioner to the opposite party. The petitioner being aggrieved by that order has moved this Court through a Civil Revision application.

3. The application was Initially placed before Untwalia, J. (as he then was) for hearing. A preliminary objection was raised with regard to the maintainability of the application on the ground that in terms of Section 28 of the Act, an appeal lay against the aforesaid order.

4. The preliminary objection which had been raised earlier has been reiterated. Mr. J. C. Sinha, appearing for the petitioner, in reply, has submitted that the order under Section 24 of the Act being an interim order, no appeal lay against it and that, therefore, the Civil revision petition was maintainable. He further submitted by reference to decisions of some of the High Courts that even under Section 28 of the Act, no appeal was provided against an order under Section 24 of the Act. I shall presently state the various decisions cited by him. I may, however, observe that if an appeal is provided against an order, be it an interim one, an appeal would lie and not a revision.

5. Mr. Ramji Saran, appearing for the opposite party, submitted that in terms of Section 28 of the Act, an appeal was maintainable against an order under Section 24 of the Act and, therefore, the revision application was not maintainable. He has made reference to the decisions of several High Courts to support his contentions. I shall advert to them at the relevant place.

6. Section 28 of the Act reads as under:

"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 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."

The above provision, according to the petitioner, means that by itself this section does not provide for an appeal against decrees or orders passed under the Act, but it merely says that if some other law which was, for the time being in force has made provision for filing of an appeal against the decree or order under the Act, an appeal could be filed by virtue of that law. The contention on behalf of the opposite party to the contrary is that by this section the Legislature has provided for an appeal against all decrees and orders in any proceeding under the Act and has left only the forum and other procedural matters in connection with the hearing of the appeal to be decided in accordance with such law that may be in force for the time being. By reference to Section 21 of the Act. It is submitted that such law meant the Code of Civil Procedure.

7. It may be relevant at this stage to refer briefly to some of the relevant provisions of the Act. Sections 9 to 13 of the Act deal with matters relating to the restitution of conjugal rights, declaration of the marriage as a nullity, judicial separation and divorce. The orders passed under these provisions are decrees; decrees, not in the sense as is understood under Section 2 (2) of the Code of Civil Procedure, but in the ordinary dictionary sense; that is to say, in the sense of a judicial decision or verdict (Vide Antala Gope v. Sarbo Gopain. AIR 1962 Pat 489 and 1973 BLJR 57 = (AIR 1972 Pat 392), Raj Rani v. Harbans Singh Chhabra).

Section 21 makes the Civil Procedure Code applicable to all proceedings under the Act and lays down that "all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure. 1908". Sections 24 to 27 deal with interim matters relating to maintenance pendente lite and expenses of the proceeding; permanent alimony and maintenance; custody of children; and disposal of property belonging jointly to both the husband and wife. Orders passed under Sections 9 to 13 of the Act are called decrees and orders passed under Sections 24 to 27 of the Act are called orders. The latter is passed during the pendency of any proceedings under the Act for which a decree is to be passed.

8. Section 28 of the Act, which I have already quoted above, has two distinct parts; firstly it provides that all decrees and orders shall be enforced in the like manner as the decrees and orders made by a Court in exercise of its original civil jurisdiction and, secondly, it provides that all decrees and orders may be appealed from under any law for the time being in force. There is no ambiguity in so far as it concerns the first part. It is only with regard to the second part of this section that there has been a conflict of opinion. In order, therefore, to understand the true import of the second part of this section, I read it after deleting the unnecessary words:

"All decrees and orders made by Court in any proceeding under this Act ......... may be appealed from under anylaw for the time being in force."

It cannot be gainsaid that in terms of this section, an appeal can be filed from all decrees and orders made by a court in any proceeding under the Act. The question, however, is is it by virtue of Section 28 itself that the right to appeal against all decrees and orders passed in any proceeding under this Act is derived or is it by virtue of some other law for the time being in force that an appeal can be filed against such decrees and orders?

9. There has been a difference of judicial opinion on this question.

In the following decisions, the view expressed is that this section does not say Dositively itself as regards appeal-ability of decrees and orders, but if an appeal lies against the decrees and orders made in any proceeding under this Act, the provision for it has to be found in some other law which may be in force at the time;

(i) AIR 1960 Bom 315, Prithvirajsinghji Mansinghji v. Bai Shivprabha kumari.

(ii) AIR 1960 Andh Pra 30, Saraswathi v. Krishnamurthy

(iii) AIR 1959 Cal 455, Smt. Sobhana Sen v. "Amar Kanta Sen.

I may state here that the decision In AIR 1960 Andh Pra 30, has since been overruled by a Full Bench decision of the said High Court in Kode Kutumba Rao v. Kode Sesheratnamamba (AIR 1967 Andh Pra 323) (FB). Similarly, the decision in AIR 1959 pal 455, has been overruled by the decision of the said High Court in Pratima Bose v. Kamal Kumar Bose, (1964) 68 Cal WN 316 and this decision has been followed in Samir Banerjee v. Sujata Banerjee, (1966) 70 Cal WN 633.

The decisions which say that this section itself provides for an appeal against all decrees and orders made by a court in any proceeding under the Act and it is only the procedural matter which is left to be decided in accordance with the law that may be in force for the tune being are as follows:--

(i) AIR 1967 Andh Pra 323 (FB).

(ii) AIR 1959 Cal 455.

(iii) (1964) 68 Cal WN 316.

(iv) AIR 1969 All 601. Smt. Sarla Devi v. Shri Balwansingh.

(v) AIR 1964 Orissa 122. Smt. Snehalata v. Jagadish Dansana

(vi) AIR 1967 Puniab 148. P. C Jalrath v. Mrs. Amrit Jairath.

(vii) AIR 1969 Raj 253, Govind Ram v. Smt. Lila Devi.

Besides these, the Madhya Pradesh, Gujarat. Madras and Himachal Pradesh High Courts have also expressed the same view. I am omitting to mention the reference of the cases decided by these High Courts because it will just be multiplying the number of decisions.

10. Thus the preponderance of view now is that appeal against all decrees and orders passed under the Act is provided in Section 28 itself, but what is not provided for in that section is the procedure which is to be followed in respect of forum or other matters pertaining to the appeal and for which the provisions has to be found elsewhere.

11. In my opinion, the latter is the correct view. The provisions of Section 28 of the Act are parallel to the provisions of Section 55 of the Indian Divorce Act. 1869, and Section 39 of the Special Marriage Act 1954. Section 55 of the Indian Divorce Act, 1869, reads as under:--

"All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the 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 the laws rules and orders for the time being in force;

Provided that there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage; nor from the order of the High Court confirming or refusing to confirm such decree:

Provided also that there shall be no appeal on the subject of costs only." Section 39 of the Special Marriage Act, 1954 reads as follows:

"All decrees and orders made by the Court in any proceeding under Chap. V or Chap. VI 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 the law for the time being in force:

Provided that every such appeal shall be instituted within a period of ninety days from the date of the decree or order."

Looking to Section 28 Of the Act, the provisions of the Indian Divorce Act and the Special Marriage Act are alike in so far as they relate to the filing of appeals. Under the Indian Divorce Act, the words are "may be appealed from under the laws, rules and orders for the time being in force". Under the Special Marriage Act, the provision is "may be appealed under the law for the time being in force" and under Section 28 of the Act the provision is "may be appealed under any law for the time being in force". Article 'the' which is to be found in the first two mentioned Acts has been substituted by article 'any' in Section 28 of the Act. This difference, however, does not create any distinction and they do not make any change in the intention of legislature. Under all these Acts, the decrees and orders have been made appealable either under 'the' or 'any' law for the time being in force. An Identical question, as has arisen in respect of the interpretation of Section 28 of the Act, arose with respect to the interpretation of Section 55 of the Indian Divorce Act. The Bombay High Court in the case of A (Husband) v. B (Wife). (1898) ILR 22 Bom 612, expressed the view that Section 55 "gives a general right of appeal" from all decrees and orders made in any proceeding under the Act.

The Lahore High Court In the cases of Chamarette v. Chamerette, (AIR 1937 Lah 176), and Noble v. Gladys (AIR 1937 Lah 862) expressed the same . view. The Lahore High Court decisions were in respect of interlocutory orders under the Divorce Act. These decisions have since held good. If this be the admitted intention of the legislature with respect to the Indian Divorce Act, I do not see any reason why the intention of the legislature should be differently interpreted in so far as it concerns Section 28 of the Act. I can quite see that the language of Sec tion 28 of the Act could have been better and for that purpose some of the High Courts have drawn attention of the Legislature to its unsatisfactory nature but even with the language as used in Section 28 of the Act. I do not think there can be any controversy with regard to its meaning relating to the appealability of decrees and orders made in any proceeding under the Act in terms of that section itself.

12. The Hindu Marriage Act is a self-contained enactment Introducing many changes with regard to the rights and liabilities of marriages made according to Hindu Law. It is unthinkable that in such a self-contained Act, whereas rights are conferred under the Act, the remedies should be left to be searched in some other law. If the interpretation of Section 28 as given by the learned counsel for the petitioner is to be accepted, it means only this that an aggrieved party could find a forum of appeal if such a forum was provided in any other Act. In other words, if no other Act provided for an appeal against decrees and orders passed under the Hindu Marriage Act, the right would become merely illusory. In my opinion, such an interpretation would be wholly illogical and against all canons of interpretation.

Section 28 of the Act is captioned as "Enforcement of, and appeal from, decrees and orders" and enacts without any ambiguity that all decrees and orders made by court in any proceeding under the Act "may be appealed from". It is an established principle of interpretation of statutes that the construction should be, as far as possible, beneficial, namely, that which should advance the remedy and suppress the mischief, if that could be done without violence to the language. A literal construction should not be allowed to prevail if it has the effect of undoing the intention of the legislature as apparent from the statute. If the words of the statute are sufficiently flexible to admit of a construction by which the intention will be better effectuated, it must be so done.

Thus, if the interpretation of Section 28 of the Act as given by learned counsel for the petitioner is to be accepted, it will firstly defeat the intention of the legislature as is apparent from the language of the said section providing for appeal against all decrees and orders made under the Act, and secondly, such an interpretation would be contrary to an interpretation which has stood the test of time, namely, that of Section 55 of the Indian Divorce Act, which is in pari materia Section 28 of the Act. If, however, the interpretation of the relevant expressions of Section 28 is the one which has been advocated on behalf of the opposite party, namely, that the right of appeal against all decrees and orders passed in any proceeding under the Act is derived by virtue of Section 28 of the Act itself and only the procedure relating to the appeal is to be in accordance with some other law for the time being in force, this interpretation would not only advance the remedy and suppress mischief, but will be fully in keeping with the object of the said provision. It is of importance to note that in Section 21 of the Act it is provided that--

"Subject to the other provisions contained in this Act and, to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (Act V of 1908)".

Now, therefore, reading Sections 28 and 21 together, to me it appears, and for which I am fortified by the views expressed by almost all the High Courts except that of the Bombay High Court which have dealt with this matter, that all decrees and orders made by court in any proceeding under the Act is appealable in terms of Section 28 itself. It is only the procedural part of such appeals which is left to be determined in terms of the Code of Civil Procedure or the Rules' as framed by the respective High Courts, The Patna High Court has already framed rules relating to the Hindu Marriage Act which are to be found in Chapter I. Part II of the Civil Court Rules of the High Court of Judicature at Patna (Civil) prescribing the manner in which a proceeding under the Act is to be initiated and conducted.

13. Having regard to the discussions made above. I am of the opinion that all decrees and orders passed in a proceeding under the Hindu Marriage Act are appealable by virtue of the provisions of Section 28 itself. The words "may be appealed from under any law for the time being in force" have to be understood as meaning that although the right of appeal is derived from this section itself, so far as the procedural aspect of the appeal is concerned, it will be governed by the Code of Civil Procedure. 1908 and the Rules prescribed for matters relating to the Act by the respective High Courts, in this case the Civil Court Rules of the High Court of Judicature of Patna (Civil). Since an appeal lies against the impugned order, the petition in revision is not maintainable. It has, therefore, to be dismissed.

14. I may, in passing, observe that the appealable orders are only those which have been made by a court in any proceeding under the Act and not all orders having connection with any proceeding under the Act. In other words, only such orders are appealable which have been passed under sections 24 to 27 of the Act.

15. In the result, the application is dismissed as not maintainable, but without costs.

S. N. P. Singh, J.

16. I agree.