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  • Jagdish Sahai
  • Gangeshwar Prasad, JJ.
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  • Gangeshwar Prasad, JJ.
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Smart Summary

Legal Opinion Summary — Appealability of Orders under Section 24 of the Hindu Marriage Act

Factual and Procedural Background

This civil revision concerns an order dated 14-4-1965 passed by Shri Abu Saad, II Additional District Judge, Meerut, exercising appellate jurisdiction under Section 28 of the Hindu Marriage Act. That order set aside an earlier order of the learned Civil Judge, Varanasi, which had granted to Smt. Sarla Devi the expenses of the proceedings and maintenance pendente lite. The revision reached a learned Single Judge who referred the following question of law for decision to the court hearing this opinion:

“Does an appeal lie against an order passed on an application under Sec. 24 of the Hindu Marriage Act?”

The immediate procedural issue before the court was whether the appeal heard by Shri Abu Saad was competent under Section 28 of the Hindu Marriage Act.

Legal Issues Presented

  1. Whether an appeal lies against an order passed on an application under Section 24 of the Hindu Marriage Act.
  2. Whether an order passed under Section 24, being an order for expenses and maintenance pendente lite, falls within the scope of orders appealable under Section 28 of the Act and whether appeals under Section 28 are governed by any "law for the time being in force" as to forum and procedure.

Arguments of the Parties

Arguments presented in the proceedings

  • It was contended (by "learned counsel" in the proceedings) that because Section 21 of the Hindu Marriage Act makes the Code of Civil Procedure (C.P.C.) applicable to proceedings under the Act, the question whether an appeal lies should be determined by reference to the C.P.C. The underlying assertion was that the right of appeal must be derived from the procedural code rather than from Section 28 directly.
  • Learned counsel relied on several single-judge decisions (cited in the opinion) that had taken the view that no appeal lies against orders passed under Section 24. Specific cases relied upon by counsel included Kusum Lata v. Jagdish Prasad Agarwal; Prithvirajsinghji Mansinghji v. Bal Shivprabhakumari; Gopendra Nath Basu Malik v. Prativa Rani Basu Malik; and Andhra High Court decisions Jalsutram Annapurnamma v. Jalasulram Ramakrishna Sastry and Bhamidipati Saraswathi v. Bhamidipati Krishna Murthy.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Smt. Kusum Lata v. Jagdish Prasad Agarwal, F.A.F.O No. 244 of 1959 (19-5-1960) — N.U. Beg, J. Held (by that single Judge) that no appeal lies against an order passed under Section 24 of the Hindu Marriage Act. The court respectfully disagreed with this decision and held that the right of appeal is not governed by the C.P.C. in the sense argued; rather Section 28 itself confers the right to appeal.
Prithvirajsinghji Mansinghji v. Bal Shivprabhakumari, A.I.R. 1960 Bombay 315 — Kokhale, J. View taken that Section 28 does not provide for an appeal and the right of appeal must be culled out from the Code of Civil Procedure. The court disagreed with Kokhale, J., again holding that Section 28 itself provides for appeals against decrees and orders under the Act.
Gopendra Nath Basu Malik v. Smt. Prativa Rani Basu Malik, A.I.R. 1962 Cal. 455 Held that because Section 28 permits appeals "under any law for the time being in force" and there was, as held, no law providing for appeals against Section 24 orders, no appeal lay. The court rejected this interpretation, concluding that Section 28 itself makes orders appealable and the phrase "under any law for the time being in force" refers to which local civil act determines the forum for the appeal.
Jalsutram Annapurnamma v. Jalasulram Ramakrishna Sastry, A.I.R. 1959 Andhra Pradesh 49 One of the Andhra single-judge decisions treating Section 24 orders as non-appealable (as cited in the opinion). The court noted these decisions need not be further noticed because a Full Bench (Kode Kutumba Rao) of that Court has overruled them; the present court follows the Full Bench view which supports appealability.
Bhamidipati Saraswathi v. Bhamidipati Krishna Murthy, A.I.R. 1960 Andhra Pradesh 30 Another Andhra single-judge decision taking the non-appealability view. Overruled by the Andhra Full Bench in Kode Kutumba Rao; the present court aligns with the Full Bench and holds Section 24 orders are appealable.
Kode Kutumba Rao v. Kode Sesharatnamamba, A.I.R. 1967 Andhra Pradesh 323 (Full Bench) Full Bench decision of the Andhra High Court which overruled earlier single-judge Andhra decisions and adopted the view that Section 24 orders are appealable. The court cited this Full Bench as supportive authority for the proposition that Section 24 orders are appealable and followed that approach.
Paras Ram… v. Janki Bai Alias Savitri…, A.I.R. 1961 All. 395 (Full Bench) Cited as authority supportive of the appealability of orders under the Act (Full Bench decision). The court cited this decision as supportive authority for its conclusion that orders under the Act are appealable by virtue of Section 28.
Rukhmanibai v. Kishanlal Ramlal, A.I.R. 1959 Madhya Pradesh 187 Cited among authorities supporting appealability under Section 28. Used by the court as supporting precedent for the proposition that Section 28 makes decrees and orders appealable.
Dr. Tarlochan Singh v. Smt. Mohinder Kuar, A.I.R. 1961 Punjab 508 Cited as a case in which the appealability of orders under the Act was recognized. The court relied on this and similar authorities as supportive precedents for its view.
Sunder Singh v. Smt. Manna Sunder Singh, A.I.R. 1962 Punjab 127 Cited as authority supportive of appealability under the Act. Cited by the court as one of the cases that support the conclusion that Section 28 makes orders appealable.
Smt. Sobhana Sen v. Amar Kanta Sen, A.I.R. 1959 Calcutta 455 Cited among Calcutta decisions supporting appealability. The court included this decision among authorities that support the proposition that Section 24 orders are appealable under Section 28.

Court's Reasoning and Analysis

The court's analysis proceeded by textual interpretation of the relevant statutory provisions and the relationship between them:

  1. Textual reading of Section 24 and Section 28:
    • Section 24 authorizes a court, during proceedings under the Act, to order the respondent to pay the petitioner's expenses of the proceedings and monthly maintenance during the proceeding where the petitioner lacks independent income.
    • Section 28 provides that "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 its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force" but excludes appeals "on the subject of costs only."
  2. On the meaning of Section 28:
    • The court identified two functions in Section 28: (a) enforcement of decrees and orders as if they were decrees and orders of the court in its original civil jurisdiction; and (b) the right of appeal from such decrees and orders.
    • The court emphasized that the phrase "may be appealed from…" in Section 28 gives an unqualified right of appeal; there is nothing in the Act excluding orders under Section 24 from that scope.
  3. On the role of Section 21 and the Code of Civil Procedure:
    • Section 21 makes the Code of Civil Procedure applicable "as far as may be" to proceedings under the Act. The court interpreted this as regulating procedure, not creating or denying substantive rights such as a right of appeal.
    • The court explicitly described a right of appeal as a substantive right (not merely a procedural matter) and therefore concluded that Section 21 does not displace the unqualified right of appeal conferred by Section 28.
  4. On the phrase "under any law for the time being in force":
    • The court explained that this phrase pertains to which local civil statute or law determines the proper forum for civil appeals in the State where the appeal arises (for example, Bengal, Agra and Assam Civil Courts Act; Mysore Civil Courts Act; Madras Civil Courts Act; Bombay Civil Courts Act, etc.).
    • The court held that the phrase does not mean that Section 28 is dependent on some other Act to provide the substantive right of appeal; rather, Section 28 makes the orders appealable and the local civil law determines the forum to which such appeals lie.
  5. Consideration of authorities:
    • The court reviewed several single-judge decisions that had held Section 24 orders were not appealable and rejected their reasoning as inconsistent with a plain reading of Section 28.
    • The court noted that some Andhra decisions were overruled by a Full Bench (Kode Kutumba Rao), and it relied on Full Bench and other state decisions that support appealability.
  6. Characterization of Section 24 orders:
    • The court held an order under Section 24 is not a "mere interlocutory order" but an order requiring one party to make payments in favour of another; hence it is the kind of order that falls within "all decrees and orders" in Section 28 and is therefore appealable.
  7. Conclusion of analysis:
    • Given the plain language of Section 28, the court concluded that all decrees and orders made under the Act are appealable by virtue of Section 28 itself (subject only to the explicit exception for costs alone), and the forum for appeal is determined by the applicable local civil appeals law.

Holding and Implications

Holding: The court answered the referred question in the affirmative: an appeal lies against an order passed under Section 24 of the Hindu Marriage Act. The court held that the appeal before Shri Abu Saad was competent.

Implications

  • Direct effect on the parties: The order setting aside the Civil Judge's grant to Smt. Sarla Devi was subject to appeal, and the appeal heard by Shri Abu Saad was competent. The court directed that the papers be returned to the learned Single Judge with this answer.
  • On appellate rights under the Act: The decision makes clear (per the court's interpretation) that Section 28 itself confers an unqualified right of appeal from "all decrees and orders" under the Act, with the only statutory limitation being the proviso excluding appeals relating to costs only.
  • On forum and procedure: While Section 28 makes orders appealable, the applicable local civil statute (referred to as "the law for the time being in force") determines the proper forum for such appeals in the State where the appeal arises; Section 21's reference to the C.P.C. governs procedure but does not negate the substantive right of appeal conferred by Section 28.
  • Precedential effect: The court relied on and distinguished a number of single-judge decisions, followed Full Bench authority where applicable, and adopted the position that Section 24 orders are appealable. The opinion therefore aligns with Full Bench and other state decisions cited that recognize appealability, rather than the single-judge decisions taking the contrary view.

Question answered and papers to be returned to the learned Single Judge.

Show full summary ...

    Sarla Devi v. Balwan Singh

    Jagdish Sahai, J.:— This civil revision is directed against an order passed by Shri Abu Saad, II Additional District Judge, Meerut, on 14-4-1965, in exercise of the appellate jurisdiction conferred by Sec. 28 of the Hindu Marriage Act (hereinafter referred to as the Act), setting aside the order passed by the learned Civil Judge, Varanasi, granting to Smt. Sarla Devi, applicant before us, the expenses of the proceedings and maintenance pendente lite. The learned single Judge before whom the revision application came up for hearing has referred the following question of law to us for decision:—

    “Does an appeal lie against an order passed on an application under Sec. 24 of the Hindu Marriage Act?”

    2. The question, therefore, is whether the appeal before Shri Abu Saad was competent under the provisions of Sec. 28 of the Act.

    3. Sec. 24 of the Act reads:—

    “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.”

    4. Sec. 28 of the Act reads:—

    “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 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.”

    5. Sec. 28 of the Act provides for two things; firstly that all orders made by the court in any proceeding shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction and secondly all these orders may be appealed from. It is not disputed that the order passed under Sec. 24 of the Act if not complied with shall be enforced as an order of the court. The words “may be appealed from…” clearly make all orders appealable. There is nothing in the Act to show that an order passed under Sec. 24 of the Act is excepted from the scope of the words mentioned above. (Italicised by us).

    6. It has been contended that under Sec. 21 of the Act the provisions of the Code of Civil Procedure have been made applicable to all proceedings and, therefore, whether or not an appeal would lie must be culled out from the provisions of the Code of Civil Procedure. Sec. 21 of the Act reads:—

    “Subject to the 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.”

    7. All that Sec. 21 of the Act provides for is that the proceedings under the Act shall be regulated by the Code of Civil Procedure. In other words the provision requires that the procedure to be followed in proceedings under the Act would be the one contained in the Civil Procedure Code. A right of appeal is a substantive right and is not a mere matter of procedure. The use of the words “shall be regulated, as far as may be, by the Code of Civil Procedure, 1908” in Sec. 21 of the Act clearly indicate that it is the procedure only which is to be regulated by the Code of Civil Procedure. Sec. 28 of the Act confers an unqualified right of appeal. The words used “and may be appealed from” in Sec. 28 of the Act clearly give a person aggrieved the right to file an appeal. In our opinion, therefore, an order passed under Sec. 24 of the Act is appealable at the instance of a party aggrieved.

    8. The words “under any law for the time being in force” occurring in Sec. 28 of the Act, in our opinion, only mean that the appeal shall be governed by the provisions contained in the Act which deals with forums of civil appeals in that area. The necessity for using this expression arose because of the circumstance that in different States there are different statutes in respect of civil appeals. The Code of Civil Procedure does not provide the forum to which appeals would lie from decrees or orders. All that it does is to confer a right of appeal under certain circumstances. The forum to which an appeal would lie would be determined by the particular Act which applies to the State in which the appeal arises. For instance, for the purposes of Uttar Pradesh, Bihar, Orissa, Assam and Bengal it would be the provisions of the Bengal, Agra and Assam Civil Courts Act which would determine the forum to which the appeal would lie. Similarly in Mysore State, it is the Mysore Civil Courts Act, in Madras State, it is the Madras Civil Courts Act and in Bombay State, it is the Bombay Civil Courts Act which would be the “law for the time being in force.” The legislature has used the words aforesaid because different States have different Acts dealing with forum for civil appeals. In our opinion, therefore, the second part of Sec. 28 of the Act makes every decree or order passed under the provisions of the Act appealable as of right, but the appeal would be regulated and governed by that particular local civil Act which rules in the State in which the appeal arises.

    9. Our attention has been invited to a single Judge decision of this Court in Smt. Kusum Lata v. Jagdish Prasad Agarwal F.A.F.O No. 244 of 1959 decided on 19-5-1960. by N.U Beg, J. wherein the learned single Judge held that no appeal lies against an order passed under Sec. 24 of the Act. With great respect to N.U Beg, J. we are of the opinion that the right of appeal would not be governed by the provisions of the Code of Civil Procedure. In fact the C.P.C does not deal with forums to which appeals would lie.

    10. Learned counsel has next placed reliance upon a single Judge decision of Bombay High Court in Prithvirajsinghji Mansinghji v. Bal Shivprabhakumari A.I.R 1960 Bombay 315.. In that case Kokhale, J. took the view that Sec. 28 of the Act does not provide for an appeal and the right of appeal must be culled out from the Code of Civil Procedure. We have already held above that Sec. 28 of the Act does provide for an appeal against every decree or order passed under the Act. Therefore, with great respect to Gokhale, J. we are unable to agree with him.

    11. Learned counsel has next placed reliance upon a single Judge decision of the Calcutta High Court in Gopendra Nath Basu Malik v. Smt. Prativa Rani Basu Malik A.I.R 1962 Cal. 455.. The learned Judge has held that all that Sec. 28 of the Act provides in that the decrees or orders passed under the Act may be appealed from under any law for the time being in force and inasmuch as there is no law under which an appeal would lie against an order passed under Sec. 24 of the Act, no appeal lay against such an order. With great respect to the learned Judge we are unable to hold that the correct meaning of Sec. 28 of the Act is that the appeal must lie under the provisions of some other Act. We have already said that the language of Sec. 28 of the Act leads to the conclusion that it is that section which makes every decree or order appealable and all that the words “under any law for the time being in force” mean is that the forum to which the appeal would lie would be determined by the civil law applicable to the particular area in which the order sought to be appealed is passed. Again with great respect to the learned Judge we can treat the words “and may be appealed from” occurring in Sec. 28 of the Act as mere surplusages which would be the result if the Calcutta view is accepted.

    12. Learned counsel has also placed reliance upon Jalsutram Annapurnamma v. Jalasulram Ramakrishna Sastry A.I.R 1959 Andhra Pradesh 49. and Bhamidipati Saraswathi v. Bhamidipati Krishna Murthy A.I.R 1960 Andhra Pradesh 30.. We need not notice these decisions because a Full Bench of the same Court in Kode Kutumba Rao v. Kode Sesharatnamamba A.I.R 1967 Andhra Pradesh 323. has overruled these cases and taken the same view which we are taking in this case.

    13. In our opinion the meanings of the words used are unambiguous and plain. The words “and may be appealed from” occurring in Sec. 28 of the Act clearly mean that all the decrees and orders mentioned in Sec. 28 of the Act are appealable by virtue of that provision. The word “and” clearly relates to the words “all decrees and orders” with which Sec. 28 of the Act opens and the words “may be appealed from” clearly indicate that “all decrees and orders” mentioned in the opening part of Sec. 28 are appealable as of right. If the section is read after deleting words unnecessary, for our purposes, it would run as follows:

    “All decrees and orders made by the Court in any proceeding under this Act…. may be appealed from under any law for the time being in force.”

    14. No decree or order is excepted from this rule. An order passed under Sec. 24 is not a mere interlocutory order. It is an order passed in favour of a party requiring the other party to make certain payments. The only exception made by Sec. 28 of the Act is in respect of an appeal relating to costs only. That being the legal position, we are satisfied that in the present case the appeal before Shri Abu Saad was competent.

    15. We would answer the question referred to us in the affirmative and say that an appeal lies against an order passed under Sec. 24 of the Act. The view that we are taking finds support from Kode Kutumba Rao v. Kode Sesharatnamamba (F.B), Paras Ram… v. Janki Bai Alias Savitri…. A.I.R 1961 All. 395 F.B., Rukhmanibai v. Kishanlal Ramlal A.I.R 1959 Madhya Pradesh 187., Dr. Tarlochan Singh v. Smt. Mohinder Kuar A.I.R 1961 Punjab 508., Sunder Singh v. Smt. Manna Sunder Singh A.I.R 1962 Punjab 127. and Smt. Sobhana Sen v. Amar Kanta Sen A.I.R 1959 Calcutta 455..

    16. Let the papers be returned to the learned Single Judge with the answer given above.

    Question answered.

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    Comments

    Sarla Devi v. Balwan Singh
    (Mar 2, 1968)