Decided on July 25,1972



- (1.) THE question which is referred to the Division Bench by Gatne J. is whether an order made under Section 24 of the Hindu Marriage Act, 1955, is appealable or can only be challenged in revision. The applicant in this revision application is the original plaintiff who has filed a petition in the Court of the Second Civil Judge, Senior Division, Nagpur, under Section 12 (1) (b) and (c) of the Hindu Marriage Act, 1955, hereinafter referred to as the Act, asking inter alia for a declaration of nullity of his marriage with the opponent No. 1. In the proceedings before the trial Court the opponent No. 1, who is the wife of the petitioner, filed an application for grant of interim maintenance under Section 24 of the Act and claimed Rs. 200/- on account of monthly allowance, Rs. 2,000/- on account of Court expenses and Rs. 400/- on account of costs of defence, because, according to her, at the relevant time she was residing at Ahmednagar. This claim was contested by the petitioner-husband, but directed the petitioner to pay Rs. 100/- per month to the opponent No. 1 from the date of the application for her maintenance and Rs. 300/- were directed to be paid in order to enable her to meet her Court expenses.
(2.) THE petitioner-husband was aggrieved by this order and he, therefor, filed a revision application under Section 115 of the Code of Civil Procedure in this Court. When the matter came before Gatne, J. for hearing he found that there was a conflict of views in 2 decisions of this Court on the question whether an order under Section 24 could be challenged by a revision application. In Prithvirajsinghji v. Bai Shivprabhakumari, (AIR 1960 Bom 315) Gokhale, J. had taken the view that an order under Section 24 of the Act was not an appealable order and the same could be challenged only be a revision application. A contrary view was taken by Abhyankar, J. in Sakharam v. Parvati, (1965) Mah LJ Note No. 107) in which he held that an order under Section 24 was an appealable order. Abhyankar J. found support in the decision of the Allahabad High Court in Smt. Sarla Devi. v. Balwan Singh, (AIR 1969 All 601) and another decision of Full Bench of Andhra Pradesh High Court in Kode Kutumba v. Kode Seshratnamamba, (AIR 1967 Andh Pra 323 ). In view of the conflict in the two decisions of this Court this reference was made to a Division Bench.
(3.) WE have heard Shri K. H. Deshpande, who appears on behalf of the petitioner-husband and according to him, on a proper construction of Section 28 of the Act that Section cannot be said to have provided for a right of appeal itself, but that the right of appeal must be governed by the provisions of Section 96 of the Code of Civil Procedure. It is contended that only orders which are in the nature of decrees as defined in Section 2 (2) of the Code of Civil Procedure could become the subject-matter of appeal and an order for interim maintenance made under Section 24 of the Act had no finality, and therefore, it did not partake of the nature of a decree and therefore could not be challenged by way of an appeal and the only remedy, according to him, open to a person who is aggrieved by an order under Section 24 of the Act was to challenge it by a revision application under Section 115 of the Code of Civil Procedure. On the other hand, it is contended by Shri Pradhan appearing for the opponents that the only manner in which an order under Section 24 of the Act can be challenged is by filing an appeal because Section 28 of the Act gives a right of appeal though the forum and the procedure governing this right of appeal is to be decided with reference to the law which may be in force for the time being like the Bombay Civil Courts Act and the Code of Civil Procedure. In order to decide these contentions it is necessary to refer to certain provisions of the Act.;

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