SNEHALATA DANSENA Vs. JAGADISH DANSANA

JUDGEMENT

(1.) IN Title Suit No. 11 of 1959 in the Court of the District Judge of Sambalpur, the appellant, the wife of respondent, prayed for a decree for restitution of conjugal rights. She filed an application on 10-4-1962 for maintenance pen-dente lite at the rate of Rs. 40/- per month and a sum of Rs. 200 towards expenses of the proceeding under Section 24 of the Hindu Marriage Act, 1955 (Act 25 of 1955), hereinafter to be referred to as the Act. mentioning in the application the details of the income of the respondent and asserting that she had absolutely no independent income to support her and to defray the expenses of the proceedings. The learned District Judge rejected this application on 18-6-1962. Against this order, the Misc. appeal has been filed. The relevant portion of the order of the learned District Judge may be quoted :

(2.) THE only contention urged in support of the appeal is that the learned District judge failed to exercise his jurisdiction vested in him. A preliminary objection is raised that no appeal lies. The relevant portion of Section 28 of the Act may be quoted :

(3.) IT must be confessed that the section has been inartistically drafted and is responsible for the sharp conflict of authorities. If the construction suggested by the respondent is accepted, there would be no right of appeal either under Section 28 of the Act or under any other law for the time being in force. Though the aforesaid reasoning cannot be rejected as wholly untenable, it makes provision for appeal under Section 28 of the Act nugatory. The Legis-lature was quite aware of the position that there is no other law for the time being in force under which an appeal can lie from any order in any proceeding under the Act. If no appeal is provided under Section 28, there would be no meaning in saying in the proviso that no appeal lies against costs only. ; In that case, the language used should have been that no appeal lies against any order in any proceeding under the Act. The right of appeal is a substantive right which is always a creature of the statute and is not a mere matter of procedure G. Veeraya v. N. Subbiah Choudhry. (S) AIR 1957 SC 540. The proper construction is that the expression "may be appealed from" confers substantive right of appeal against all decrees and orders made by the Court in any proceeding under the Act. This substantive right is created by the Act under Section 28. The expression "under any law for the time being in force" refers to the forum and the procedure to be followed under any other law for the time being in force which includes Civil Procedure Code and the I rules framed by the High Court. Section 21 of the Act enacts-Subject to 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'. No independent and separate provision is made in the Act regarding the forum and procedure for hearing the appeal. The better construction, there-force, is that an appeal lies against all decrees and orders made by the Court in any proceeding under Section 28 of the Act, excepting against costs only. This construction is consistent with the proviso that there shall be no appeal on the subject of costs only. This view is supported in Smt. Sobhana Sen v. Amar Kanta, AIR 1959 Cal 455 and Harilal Purush-ottam v. Lilavati Gokaldas, AIR 1961 Gujarat 202. It is unnecessary to refer to other authorities in support of this line of reasoning. It is remarkable that the Division Bench decision in AIR 1959 Cal. 455 was not brought to the notice of the learned Single Judge in AIR 1962 Cal. 455 who took a contrary view. For the reasons discussed I am clearly of opinion that the miscellaneous appeal is competent.