- (1.)THIS is a revision application by the petitioner in a suit for divorce. The petitioner is the husband of respondent No. 1. He brought a suit for divorce against her on the ground of adultery. During the pendency of the suit respondent no. 1 claimed maintenance pendente lite and expenses of proceedings under section 24 of the Hindu Marriage Act, 1955. The evidence of the respondent was first recorded and 26-11-66 was fixed for recording the evidence of the petitioner. On that date the petitioner and his lawyer were both absent and no application for adjournment was moved. The trial court passed an order in favour of the respondent on the same day. The petitioner subsequently appeared and filed an application for setting aside the order. That application was dismissed by the trial court on 12-4-67. The present application has been filed against that order. A preliminary objection has been taken on behalf of the respondent that the order dated 26-11-66 passed under section 24 was appealable under Section 28 of the Act and as no appeal was filed against it, it became final and is no longer open to any challenge. The reply of the petitioner is that no appeal lies against an order under Section 24. Reliance is placed on the following decisions:--Prithyirajsinghji v. Bai Shivprabhakumari, AIR 1960 Bom 315, saraswathi v. Krishna Murthy, AIR 1960 Andh Pra 80, Gopendra Nath v. Prativa Rani, AIR 1962 Cal 455, Mohan Rani v. Mohan Lal, AIR 1965 jammu and Kashmir 88. The respondent on the other hand relies on the following decisions:--Rukhmanibai v. Kishanlal Ramlal, AIR 1959 Madh Pra 187, Smt. Sobhana Sen v. Amar Kanta, AIR 1959 Cal 455, Harilal v. Lilavati, AIR 1961 Guj 202, Tarlochan Singh. v. Mohinder Kaur, AIR 1961 Pun) 508, snehalata v. Jagadish Dansana, AIR 1964 Ori 122. Section 28 of the Act runs as follows:-"enforcement of and appeal from decrees and orders.--All decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decree 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. "
(2.)ONE view on which the petitioner relies is that the section does not say anything positive itself as regards appeal ability or decrees and orders, but merely says that if an appeal lies against any decree or order made in any proceeding under this act under some law that may be in force at the time (e. g. Civil Procedure Code), then only will an appeal lie and not otherwise. The other view is that this section makes definite provision for appeals and confers a right of appeal against all decrees and orders passed by the court in any proceeding under the Act, and that there is nothing in the section to indicate a limitation that the right to appeal should be conferred by and exist under some other law for the time being in force like the Civil Procedure Code.
(3.)AS to decrees there is no difficulty as decrees are appealable under the Civil procedure Code. The difficulty arises in the case of orders made under the Act under Sections 24, 25 and 26. Section 24 provides for the grant of maintenance pendente lite and expenses of proceedings, Section 25 for grant of permanent alimony and maintenance and Section 26 for the custody of children. It seems to me that the Legislature intended that orders under these sections should be appealable although the language of the section is undoubtedly not happy.
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