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Cites 10 docs - [View All]
Section 24 in The Hindu Marriage Act, 1955
Section 28 in The Hindu Marriage Act, 1955
Bhamidipati Saraswathi vs Bhamidipati Krishna Murthy on 21 April, 1959
Smt. Sobhana Sen vs Amar Kanta Sen on 9 June, 1958
Section 2 in The Hindu Marriage Act, 1955
Citedby 15 docs - [View All]
Indu Dhari Singh vs Dr. Rita Singh And Anr. on 25 September, 1996
S.Sumathi vs R.Sharavanakumar on 30 April, 2013
Sohan Lal vs Smt. Premlata And Ors. on 1 December, 1976
Smt. Pushpa Devi vs Om Prakash on 28 August, 1984
Chaitanyakumar Harikrishanbhai ... vs Naliniben C. Bhatt on 21 January, 1995

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Patna High Court
Bankim Chandra Roy vs Smt. Anjali Roy on 4 March, 1971
Equivalent citations: AIR 1972 Pat 80
Author: N Untwalia
Bench: N Untwalia

ORDER N.L. Untwalia, J.

1. In the title suit filed by the wife under the Hindu Marriage Act, 1955 (hereinafter called the Act) an interim order has been made under Section 24 of the Act in favour of the wife. The husband has come up in revision as also in miscellaneous first appeal to this Court.

2. There is a dispute between the various High Courts as to whether an order under Section 24 would be appealable or not. Many High Courts have taken the view that under Section 28 such an order would be appealable (vide Sobhana Sen v. Amar Kanta Sen, AIR 1959 Cal 455; Rukhmanibai v. Kishanlal, AIR 1959 Madh Pra 187; Snehalata v. Jagadish, AIR 1964 Orissa 122; Tarlochan Singh v. Mahinder Kaur, AIR 1961 Punjab 508 and Smt. Shushila Devi v. Dhani Ram, AIR 1965 Him Pra 12. A contrary view has been taken in B. Saraswathi v. B. Krishna Murthy, AIR 1960 Andh Pra 30 and Prithyirajsinhji v. Bai Shivprabhakumari, AIR 1960 Bom 315. Section 28 of the Act reads thus--

"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."

I am inclined to take the view that this section does not make any decree or order under the Act appealable but it says that the decree or order may be appealed from under any law for the time" being in force. It does not say "in accordance with any law for the time being in force". The phrase "under any law", in my opinion, must mean appealable under any law. One has to go to the Civil Procedure Code for that purpose where the final adjudication having the force of decree under the Act will be appealable because it will be a decree under Section 2 (2) of the Code of Civil Procedure. The bar in the proviso to Section 28 is that even the cost forming part of the decree will be appealable as a decree under the Code of Civil Procedure but still it will not be appealable under the Act. The reasons given to the contrary in the decision of the Himachal Pradesh, if I may say so with respect, do not commend to me. I find myself in respectful agreement with the view expressed by the Bombay and Andhra Pradesh High Courts. But sitting singly I do not propose to decide this point finally. I shall assume in favour of the respondent that the order is not appealable and shall consider on merits the revision only.

3. Coming to the merits of the Order, I find that the learned Judicial Commissioner has allowed maintenance to the wife not only for her support but also for the support of her three children all of whom are above the age of 10. Ordinarily she would not be entitled to their custody. But that apart let me read Section 24 of the Act-

"Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable" (underlining mine).

It would thus be seen that an order can be made if the petitioner has no independent income sufficient for her or his support. No monthly allowance can be granted under Section 24 for the support of the children. That being so, the grant of monthly allowance of Rs. 325/- not only for the support of the respondent but also for the support of the three children is contrary to law and has been made by committing an illegality in exercise of the jurisdiction of the Court under Section 24 of the Act.

4. Learned counsel for the petitioner also contended that the income of the petitioner was low and at best more than one-fifth of his income which he has admitted to be Rs. 441/- per month ought not to have been allowed. I am not impressed by this argument. Taking into consideration the facts and the circumstances of the case and especially the ex parte evidence adduced before the learned Judicial Commissioner, on that account alone, I could not have felt persuaded to interfere with the order of the Court below.

5. Learned Counsel for the petitioner then submitted that the amount of Rs. 600/- awarded to meet the expenses of the litigation is high and excessive. That is again a matter which is wholly within the jurisdiction of the Court below. Even in appeal I would not have interfered with this, as, in my opinion, the amount is not high.

6. For that first reason given by me above, the amount of Rs. 325/- per month cannot be maintained for the wife alone. A sum of Rs. 100/- per month would be quite reasonable and sufficient in my opinion. I, therefore, allow the civil revision, modify the order of the Court below in the matter of monthly allowance and substitute the figure of Rs. 325/- by Rs. 100/- only; that is to say. the petitioner will have to pay by the date specified by the Court below to the opposite party Rs. 100/- per month. The award of Rupees 600/- is maintained. The miscellaneous appeal is dismissed as being infructuous. There would be no order as to cost.