MANU/UP/2944/2010

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Equivalent Citation: 2011 2 AWC1730

IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH) F.A.F.O. No. 1433 of 2009 Decided On: 13.04.2010 Appellants: Dr. Deepak Kumar Gajwani Vs. Respondent: Smt. Seema Gajwani Honble Judges: Vedpal, J. Subject: Family Acts/Rules/Orders: Hindu Marriage Act, 1955 - Section 13, Hindu Marriage Act, 1955 - Section 24, Hindu Marriage Act, 1955 - Section 25, Hindu Marriage Act, 1955 - Section 25(3), Hindu Marriage Act, 1955 - Section 26, Hindu Marriage Act, 1955 - Section 26(3), Hindu Marriage Act, 1955 - Section 28; Hindu Marriage (Amendment) Act, 1976 Cases Referred: Smt. Seema Gajwani v. Dr. Deepak Gajwani Regular Suit No. 339/2008; Ceylon Biscuits Ltd. v. Bakeman Industries (P.) Ltd. and Ors. (2004) 13 SCC 575; Arul Agarwal v. Nagreeka Exports (P.) Ltd. and Anr. MANU/SC/1350/2001 : (2002) 10 SCC 101; K. Kamraj Nadir v. Kunju Thevar and Anr. MANU/SC/0096/1958 : AIR 1958 SC 687; Ram Avtar Verma v. Smt. Chinta Mani and Ors. MANU/MP/0490/2003 : AIR 2004 MP 137 Disposition: Appeal dismissed Case Note: Hindu Marriage Act, 1955 - Sections 28 and 24--Appeal--Maintainability--F.A.F.O. against order passed under Section 24 granting maintenance pendente lite and litigation expenses to Respondent wife--Under Section 28 appeal against order under Section 24 excluded--Further order passed under Section 24--Interlocutory in nature-Appeal thereagainst not competent. It is settled law that appeal and revision is a creature of the statute. It reveals from the perusal of the above provisions of Section 28 of the Hindu Marriage Act, 1955, that the Legislature has excluded preference of an appeal under this Act against an order passed under Section 24 of the Act. Before coming into force of the Amending Act of 1976, there was difference of opinion amongst the High Courts on the question whether an appeal lie against an order passed by the Court of first instance on application for maintenance, pendente lite and expenses of the proceedings. Now Section 28 has been amended and it is abundantly clear that now no appeal can lie against an order passed under Section 24 of the Hindu Marriage Act awarding interim maintenance and litigation expenses. Furthermore, order passed under Section 24 of the Hindu Marriage Act is interlocutory in nature. Thus, the appeal is not competent against this order.

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JUDGMENT Vedpal, J. 1. The Appellant Dr. Deepak Kumar Gajwani in this appeal has assailed the legality and validity of the orders dated 20.8.2009 and 23.11.2009, passed by the Additional District Judge, Court No. 1, Sultanpur in Regular Suit No. 339/2008: Smt. Seema Gajwani v. Dr. Deepak Gajwani, whereby application under Section 24 of the Hindu Marriage Act, moved by Respondent Smt. Seema Gajwani was allowed and the application to recall the said order was rejected. 2. The brief facts leading to this appeal are that the Appellant and the Respondent (herein) are inter se husband and wife and the Respondent on 3.7.2008 had filed a petition under Section 13 of the Hindu Marriage Act against Dr. Deepak Gajwani for divorce, in the Court below which was registered as Regular Suit No. 339/2008 (supra). The Respondent also preferred an application (8C2) under Section 24 of the Hindu Marriage Act seeking maintenance, pendente lite and expenses of the proceedings in accordance with the provisions of Section 24 of the Hindu Marriage Act. Objection (12C2) against the said application was filed by the Appellant. The Appellant also moved an application (14C2) under Section 24 of the Hindu Marriage Act against which Respondent Smt. Seema Gajwani filed her objection (15C2). The Appellant had also filed his written statement before the Court below. The learned Court below after hearing the parties, allowed the application (8C2) moved by Smt. Seema Gajwani awarding Rs. 2,500 per month as maintenance pendente lite and Rs. 2,500 as expenses of the proceedings pending between the parties in the Court. Thereafter, the Appellant moved an application (34C2) for recalling the order dated 20.8.2009, passed on application under Section 24 of the Hindu Marriage Act moved by Smt. Seema Gajwani. Learned Court below rejected application (34C2) holding that the maintainability of the petition under Section 13 of the Hindu Marriage Act, shall be decided as preliminary issue after framing of the issues. Feeling aggrieved with the above two orders, the Appellant has preferred this appeal. 3. The Appellant was heard at length on the maintainability of this appeal. 4. Learned Counsel for the Appellant has contended that an order passed by the Court below under Section 24 of the Hindu Marriage Act is an independent proceeding, and order disposing this application is an appellable order under the provisions of Section 28 of the Hindu Marriage Act. He further contended that the learned Court below has also committed illegality in not recalling the said order and in not deciding the maintainability of the petition as a preliminary issue. He in support of his contentions relied on Ceylon Biscuits Ltd. v. Bakeman Industries (P.) Ltd. and Ors. (2004) 13 SCC 575; Arul Agarwal v. Nagreeka Exports (P.) Ltd. and Anr. MANU/SC/1350/2001 : (2002) 10 SCC 101; K. Kamraj Nadir v. Kunju Thevar and Anr. MANU/SC/0096/1958 : AIR 1958 SC 687. 5. I have carefully considered the submissions made by the learned Counsel for the Appellant and perused the record of the case. In order to appreciate the contentions raised by the learned Counsel for the Appellant on the maintainability of the appeal, it is necessary to go through the provisions of Sections 24 and 28 of the Hindu Marriage Act. 6. Section 24 of the Hindu Marriage Act under which order in question was passed reads as under: "Maintenance pendente lite and expenses proceedings.-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,

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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: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be Section 28 of the Hindu Marriage Act, reads as under: 28. Appeals from decrees and orders.(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction. (2) Orders made by the Court in any proceeding under this Act under Section 25 or Section 26 shall, subject to the provisions of Sub-section (3) be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction. (3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of ninety days from the date of decree or order. 7. It reveals from the perusal of the above Section 24 that the right to maintenance, pendente lite or litigation expenses arise from the start of the proceedings and such order does not survive after the proceeding terminates. The intention of the Legislature in enacting the said section is that if one party to the matrimonial proceeding has no independent income sufficient for her or his support and necessary expenses of the proceedings, the Court may award interim maintenance and litigation expenses to such party so that he may not suffer due to paucity of fund. 8. It is settled law that appeal and revision is a creature of the statute. It reveals from the perusal of the above provisions of Section 28 that the Legislature has excluded preference of an appeal under this Act against an order passed under Section 24 of the Act. Before coming into force of the Amending Act of 1976, there was difference of opinion amongst the High Courts on the question whether an appeal lie against an order passed by the Court of first instance on application for maintenance, pendente lite and expenses of the proceedings. Now Section 28 has been amended and it is abundantly clear that now no appeal can lie against an order passed under Section 24 of the Hindu Marriage Act awarding interim maintenance and litigation expenses. 9. In case of Ram Avtar Verma v. Smt. Chinta Mani and Ors. MANU/MP/0490/2003 : AIR 2004 MP 137, considering similar question, Hon'ble Madhya Pradesh High Court held as under: It has also been argued that application for maintenance pendente lite and litigation expenses is an independent proceedings in itself. However, this view cannot also be upheld by this Court. As already seen question of

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maintenance pendente lite and litigation expenses arises with the filing of an application for matrimonial reliefs under the Act. It ends as the proceedings terminate. It has no separate existence and cannot stand by itself. No application for maintenance pendente lite or litigation expenses can exist independently unless lis is there. Admittedly, no appeal lies against such order. 10. Furthermore, order passed under Section 24 of the Hindu Marriage Act is interlocutory in nature. Thus, the appeal is not competent against this order. In so far as the ruling cited by the learned Counsel for the Appellant is concerned, they do not pertain to Section 24 or 28 of the Hindu Marriage Act. In the instant case, learned Court below has not refused to decide issue of maintainability of petition under Section 13 of the Hindu Marriage Act as preliminary issue. A perusal of the order makes it clear that it has been clearly mentioned in the order dated 25.11.2009 that issue of maintainability of the petition, after framing issue shall be decided as preliminary issue. In the facts and circumstances of the case stated above, ruling cited by the learned Counsel for the Appellant referred to above are not applicable to the facts of the present case and is not helpful to Appellant on the maintainability of this appeal. 11. The appeal, therefore, deserves to be rejected in limine. 12. In view of what has been stated above, this appeal is not maintainable and is accordingly, it is rejected in limine.

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