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Smt. Sobhana Sen v. Amar Kanta Sen
Summary of Legal Opinion
Factual and Procedural Background
The husband instituted divorce proceedings under the Hindu Marriage Act, 1955. The wife (the respondent in the original divorce suit and appellant in this appeal) applied under Section 24 of the Act for maintenance pendente lite and expenses of the proceedings. In her Section 24 application she sought Rs. 650 per month as maintenance during the pendency of the proceedings and Rs. 3,000 (or "such other sum as the Court may think reasonable and sufficient") towards the expenses of the suit.
The learned District Judge, 24-Parganas, ordered maintenance pendente lite at the rate of Rs. 200 per month with effect from 1 May 1956. As to the expenses, the Judge stated a tentative assessment of probable costs at Rs. 500 and directed the petitioner (husband) to pay Rs. 200 towards those costs by 21 June 1956 (the Judge's order contains a notation of the tentative Rs. 500 and a direction to pay Rs. 200).
The wife appealed contending that both the maintenance pendente lite amount and the expenses awarded were inadequate. The husband raised a preliminary objection (argued by Mr. Das Gupta) that no appeal lies against the order made by the learned District Judge.
Legal Issues Presented
- Whether an appeal lies against an order (including orders under Section 24 for maintenance pendente lite and costs) made by a court in proceedings under the Hindu Marriage Act, 1955 — a question of construction of Section 28 of the Act.
- Whether the amounts fixed by the District Judge for maintenance pendente lite and for expenses (maintenance at Rs. 200 per month from 1 May 1956; tentative costs assessed at Rs. 500 with Rs. 200 ordered paid) were inadequate and warranted interference on appeal.
- Whether the commencement date for payment of maintenance pendente lite should be the date of service of notice (here asserted to be 2 February 1956) rather than 1 May 1956 as fixed by the District Judge.
Arguments of the Parties
Appellant's (Wife's) Arguments
- She sought maintenance pendente lite at Rs. 650 per month and Rs. 3,000 (or a court-determined reasonable sum) for expenses, and contended that the sums awarded by the District Judge were inadequate.
- Implicit in her appeal was the contention that the maintenance should be payable from the earlier date of service of notice (alleged to be 2 February 1956).
Respondent's (Husband's) Arguments
- Through Mr. Das Gupta the husband raised a preliminary objection that no appeal lies against the order made by the learned District Judge (challenging the appealability of the District Judge's order under Section 28 of the Act).
- There was a cross-objection praying for reduction of the amount ordered (the opinion records a cross-objection for reduction but finds no substance in it).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Adaikappa Chettiar v. Chandrasekhara Thevar | Principle that if the Act contained no provision for appeal, then appeals would lie under the Code of Civil Procedure (i.e., appealability might be determined by the Code where the statute is silent). | The court noted the principle but held it unnecessary to rely on it because the Hindu Marriage Act contains its own provisions on appeal (Section 28) which required construction; thus the Adaikappa principle was mentioned but not applied to resolve the appeal. |
Court's Reasoning and Analysis
The court addressed the preliminary objection about appealability by analysing Section 28 of the Hindu Marriage Act, 1955. Two constructions of Section 28 were considered:
- A positive construction: the legislature intended that an appeal shall lie against all decrees and orders made by the court in any proceeding under the Act, and that the forum and other procedural matters for such appeals would be determined according to the law for the time being in force.
- A restrictive construction: the section merely states that where an appeal lies under any law then an appeal will lie, but does not itself make orders under the Act appealable — i.e., appealability would depend on other existing law.
The court preferred the first construction for several reasons explicitly given in the opinion:
- It would be unreasonable to conclude that the legislature left the question of appealability entirely to be determined by other laws when the Act itself addresses appeals.
- If appealability were to depend on other law, the proviso in Section 28 (that there shall be no appeal on the subject of costs only) would be unnecessary; thus the proviso supports a positive recognition of appealability in the section itself.
- The legislature, when speaking of "decrees and orders made by the court in any proceeding under this Act," had primarily in mind the specific decrees and orders provided in earlier sections (e.g., decrees for nullity, judicial separation, divorce; orders under Sections 24, 25 and 26). The scheme of the Act indicates that such decrees and orders were meant to be appealable.
- The phrase "under any law for the time being in force" was read as indicating which forum and procedural law would govern appeals (for example, whether appeals lie to the District Judge or the High Court and the applicable procedure), not as negating the appealability of the orders themselves.
On this basis the court concluded that Section 28 was intended to make all decrees and orders made in proceedings under the Act appealable, and rejected the husband's preliminary objection that no appeal lay.
Turning to the merits, the court reviewed the District Judge's factual assessments on income and needs: the learned Judge had assessed the wife's reasonable need as Rs. 225 per month and found her independent income to be about Rs. 25, hence ordering Rs. 200 per month to be paid by the husband. The Judge's assessment of probable costs in the proceedings was Rs. 500 (with an immediate order for Rs. 200 towards costs).
The appellate court found no basis to interfere with these assessments of amounts. There was nothing shown to the appellate court that justified concluding that Rs. 225 was not a reasonable assessment of the wife's needs, nor that Rs. 25 as her net income was incorrect, nor anything to justify upsetting the Judge's estimate of probable costs.
The court did, however, find fault with the District Judge's decision on the date from which maintenance should be paid. The general rule (as stated in the opinion) is that maintenance in such cases is allowed from the date of service of notice. The District Judge had departed from that rule and fixed the commencement as 1 May 1956, stating that he refused maintenance from the date of service because of delay on the respondent's part in presenting the maintenance petition. The memorandum of appeal asserted that notice was served on 2 February 1956 and that statement was not denied. The appellate court held that it was arbitrary for the District Judge to refuse maintenance from the date of service (2 February 1956) on the ground of delay in coming to court on 1 May 1956, and therefore the Judge acted improperly in exercising his discretion in that respect.
Consequently, while the substantive amounts were left undisturbed, the appellate court modified the order to make maintenance pendente lite payable from 2 February 1956 instead of from 1 May 1956. The appeal was allowed in part. The cross-objection seeking reduction of the amount ordered was dismissed as without substance. The parties were directed to bear their own costs.
Holding and Implications
The appeal is allowed in part: the preliminary objection that no appeal lies under the Hindu Marriage Act was rejected; the maintenance pendente lite fixed at Rs. 200 per month is to be paid with effect from 2 February 1956 (the date of service of notice), and the cross-objection for reduction is dismissed.
Direct consequences for the parties:
- The husband must pay maintenance pendente lite at Rs. 200 per month to the wife, effective from 2 February 1956.
- The District Judge's assessments of the amounts (maintenance and probable costs) remain undisturbed except for the modification of the commencement date for maintenance.
- Each party bears their own costs of the appeal.
- The cross-objection seeking reduction of the amount ordered was dismissed.
Broader legal implication reflected in the opinion:
The court construed Section 28 of the Hindu Marriage Act to mean that all decrees and orders made by the court in proceedings under the Act are appealable, and that the phrase "under any law for the time being in force" relates to the forum and procedural law for hearing such appeals. The opinion explains the legislative purpose behind Section 28 but does not purport to set out any novel procedural rule beyond this statutory construction. No separate precedent beyond the statutory construction was created by the court's conclusions stated in the opinion.
Panel and Disposition
The opinion was delivered by Debabrata Mookerjee, J. The judgment records "I agree." indicating concurrence by the other member of the bench.
1. This appeal is against an order made by the District Judge, 24-Parganas on an application by tile wife for maintenance pendente lite and expenses of proceedings, under Section 24 of the Hindu Marriage Act, 1955. The husband started the proceedings under the Hindu Marriage Act and prayed for a decree of divorce. In the application under Section 24 of the Act, the wife, who is the appellant before us made a prayer for a sum of Rs. 3000 "or such other Bum as the Court may think reasonable and sufficient'' for the expenses of this suit and Rs. 650/-per month for her maintenance during the pendency of the proceedings. The learned District Judge has made an order directing the husband to pay maintenance pendente lite at the rate of Rs. 200/-per month with effect from the 1-5-1956. As regards the prayer for expenses of the proceedings, e passed the following order :
"I tentatively assess the probable cost of the respondent in this divorce proceeding at Rs. 500/-. The petitioner is directed to pay the respondent in this divorce proceeding at Rs. 500/-. The petitioner is directed to pay the respondent Rs. 200/- towards the aforesaid costs. This cost must be paid by 21-6-56."
2. The wife now contends in appeal against the order that the amount of the maintenance pendente lite or the expenses for the proceeding are inadequate.
3. A preliminary objection was taken by Mr. Das Gupta on behalf of the husband. His contention is that no appeal lies against the order made by the learned Judge. This is an important question which requires careful consideration.
4. If the Act itself had contained no provision for appeal, appeal would lie against orders or decrees made in the proceedings under the Hindu Marriage Act, 1955, if under the Code of Civil Procedure an appeal would have lain. This would be the result of the principle laid down in the case of Adaikappa Chettiar v. Chandrasekhara Thevar . The Act, however, has made definite provisions as regards appeals and it is not necessary for us to consider the principle laid down in Adaikappa's case.
The provisions as regards appeals are contained in Section 28 of the Act which is in these words :
"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 ok the court made in the exercise of the 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. The question before us is one of construction of the words used by the legislature in this section. Two rival constructions require consideration. One is that by this section the legislature has provided that an appeal will lie against all decrees and orders made by the court in any proceeding under the Act and that the forum and other matters in connection with the hearing of the appeal would be, decided in accordance with the laws that may be in force for the time being. The other construction which is suggested is that this section does not say anything positive itself as regards appealability of decrees and orders but merely says that if an appeal lies against decrees an3 orders made in any proceeding under this Act under some law that may be in force at the time, then an appeal will lie and not otherwise.
6. In my opinion, the first construction should be preferred to the other construction that has been suggested. In the first place, it seems to me unreasonable to hold the legislature guilty of leaving the matter of appealability entirely at large, as it would be, if appealability was to depend on any law for the time being in force. It is much more reasonable in my opinion, to think that when the legislature took upon itself the task of making provisions as regards appeals, it intended to make definite provisions.
7. In the second place, it seems to me that the second construction suggested, viz., that appealability will depend on the law for the time being in force, would make the proviso wholly unnecessary. The proviso is that there shall be no appeal on the subject of costs only. If appealability was to depend on the law for the time being in force that is, in the absence of any other law, the provisions as regards appeals in the Code of Civil Procedure from decrees and orders and in cases heard on the Original Side of the High Court from judgments within the meaning of the Letters Patent there would be no point in making a provision that there shall be no appeal on the subject of costs only.
8. In the third place, I am of opinion that in speaking of decrees and orders in Section 28 the legislature had primarily in mind the different decrees for which provision had been made in the earlier sections, viz., a decree for nullity, a decree for judicial separation and a decree for divorce and also the different orders for which special provision had been made in the previous sections of the Act, viz., orders under Section 24 in the matter of maintenance pendente lite and expenses of proceedings, orders under Section 25 for permanent alimony and maintenance and orders as regards custody of children under Section 26. While the words "all decrees and orders made by the court in any proceeding under this Act" may be wide enough to embrace certain other orders, it seems reasonable to me on examining the scheme of the Act as a whole that the legislature had in mind, when providing for decrees and orders made, those decrees and orders which are specially contemplated in proceedings under the Act. In the first place, it provides that these decrees and orders shall be enforced in like manner as decrees and orders of the court made in the exercise of original civil jurisdiction. Then it takes up the question of appealability and after saying "may be appealed from" adds the words "under any law for the time being in force." It seems to me fair to think that these words, "under any law for the time being in force," used in respect of appeals, serves the same purpose as the words, 'in like manner as the decrees and orders of the court made in the exercise of the original civil jurisdiction are enforced", in the previous part of the section. Viewed from this angle, the position is that just as orders and decrees made in any proceeding under the Act shall be enforced in a particular manner, they will also be appealable but the appeals will be dealt with in a particular manner.
9. If the second construction suggested, viz., that appealability will depend on the law for the time being in force, and does not result directly from the section itself, is accepted, there will be obviously a great distinction between the finality of the decrees made by the court, such as, decrees for divorce, judicial separation or nullity and orders made by the court as provided under the special provisions of sections 24, 25 and 26. It is, in my opinion, unreasonable to think that the legislature would make this distinction between the decrees made under the special provisions of the Act and the orders made under the special provisions of the Act in the matter of appeal while in the earlier part of this very section it has provided the same mode for the enforcement of the orders.
10. On consideration of all these, I have come to the conclusion that the inteintion of the legislaure was that all decrees and orders made by the court in a proceeding under the Act shall be appealable and that the words 'under any law for the time being in force" were added to indicate that the forum where the appeal would lie, viz. to the District Judge or the High. Court, and such other matters as regards procedure for the hearing of the appeals would be decided by the law on the subject for the time being in force.
11. The preliminary objection raised by Mr. Das Gupta is, therefore, rejected. On the merits, I am unable to find anything that will justify our interference with the orders passed as regards the amount. The learned Judge has considered the probable income of the husband and the probable income of the wife and has also considered the amount reasonably required by the wife for her maintenance. He came to the decision that she cannot manage to live on less than Rs. 225/-, and as her own independent income is about Rs. 25/-, he has ordered the husband to pay Rs. 200/-. On the question of costs, what he calls his tentative decision is that the probable cost of the respondent is Rs. 500/-. Nothing has been shown to us that would justify us in coming to a conclusion that Rs. 225/- is not on the whole a reasonable assessment of the wife's need for maintenance, nor that the learned Judge's assessment that Rs. 25/- is the net income of the wife is wrong, nor have we been shown anything which justifies interference with the learned Judge's assessment of the probable costs in the divorce proceedings at Rs. 500/-.
12. As already indicated, the learned Judge has ordered that the payment of the maintenance would be with effect from 1st May 1956. The well-known rule is that maintenance in such cases is allowed by the court from the date of service of notice. In giving his reasons for departure from this rule, the learned Judge says,
"I refuse maintenance from the date of service of notice in view of the delay on the respondent's part in coming up with the maintenance petition."In my opinion, the learned Judge has acted arbitrarily in this matter. The notice was served, according to the statement in the memorandum of appeal, on the 2nd February 1956. The correctness of this statement in the memorandum of appeal has not been denied. When notice was served on the 2nd February 1956, it cannot be reasonably said that the wife made undue delay in coming to court on the 1st May 1956 for an order for maintenance. It is well-known that orders for maintenance are passed even at a very late stage of the proceedings. In my judgment, the learned Judge acted arbitrarily in the exercise of his jurisdiction in refusing to order payment of maintenance with effect from the date of service of notice.
13. I would, therefore, allow this appeal in part and order in modification of the order passed by the learned Judge, that the maintenance pendente lite must be paid by the husband at the rate of Rs. 200/- per month with effect from the 2nd February 1956.
14. The parties will bear their own costs.
15. There is a cross-objection praying for reduction of the amount ordered. We can find no substance in the prayer. The cross-objection is dismissed.
Debabrata Mookerjee, J.
16. I agree.
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