The Judgment of the Court was as follows:

Banerjee, J.:— These two appeals were heard together at the instance of the parties. The wife of the respondent is the appellant in both the appeals. F.M.A 159 of 1960 is directed against an order, made under section 24 of the Hindu Marriage Act, 1955, for payment, to the wife, of maintenance pendente lite and expenses of a proceeding for judicial separation. F.M.A 160 of 1960 is directed against an order, made under section 26 of the Hindu Marriage Act, 1955, for payment of interim maintenance and education expenses to the only son of the marriage between the appellant and respondent.

1. The circumstances under which the orders appealed against were made are hereinafter narrated in brief. The appellant, Sm. Pratima Bose, was married to the respondent, Kamal Kumar Bose, on May 8, 1955, according to Hindu rites. Their united matrimonial life was short-lived and the respondent husband filed proceeding for judicial separation on June 19, 1959. It is not disputed that the appellant wife is now living apart from the respondent husband with her father and the only son born in their wedlock, aged about 4 years, is living in her custody.

2. In the proceeding for judicial separation, the appellant wife filed two applications, on November 5, 1959, by one of which she claimed Rs. 400/- per month as maintenance pendente lite for herself and also Rs. 500/- as costs of litigation and by the other application she claimed Rs. 200/- per month as the interim maintenance and costs of education for their only child. The learned Additional District Judge, who heard the applications, allowed the two applications in part. He directed the respondent husband to pay Rs. 150/- per month to the appellant wife, from the month of May 1960 as her maintenance pendente lite and a sum of Rs. 200/- as costs of litigation. He also directed payment of a sum of Rs. 50/- per month as interim maintenance and education charges for the son, from the month of May of 1960.

3. The appellant wife felt aggrieved by the smallness of the amount of maintenance and costs allowed and the period from which the maintenance was made payable and appealed to this court.

4. Mr. Surita, learned Advocate for the appellant, did not, however press the appeal against the amount of litigation expenses allowed to the appellant wife. He confined his arguments to the amount of maintenance allowed to the wife and the maintenance and education costs allowed to the child.

5. The respondent husband is a Pilot under the Indian Airlines Corporation. According to the evidence of Kalipada Pal (P.W.I), an Accounts Assistant in the Indian Airlines Corporation, the respondent gets a salary of Rs. 1550/- per month and after deduction at source for Income-Tax and Provident Fund contributions draws Rs. 1187.50 nP. per month. He also gets some extra payment for extra flying hours. We prefer the evidence of P.W 1 to that given by the respondent husband, who stated that his basic salary was Rs. 1,250/- per month, with extra bonus for satisfactory service.

6. In his petition of objection to the application for maintenance and costs, the respondent husband stated that he has to maintain an aged father suffering from cardiac asthma and high blood pressure and that his monthly expenditure approximated about Rs. 1067/- He, however, stated in his evidence that he was in a position to pay Rs. 200/- per month to his wife and son for maintenance and costs. The learned Additional District Judge appears to have proceeded on the basis of what the respondent husband was prepared to pay, when he directed monthly payment of Rs. 150/- and Rs. 50/- respectively to the wife and son for their maintenance and other costs.

7. Mr. Surita contended, in the first place, that under section 24 of the Hindu Marriage Act, the learned Additional District Judge should have directed payment, so far as the wife was concerned, a reasonable sum as maintenance having regard to the income of the respondent husband. In elaboration of his argument, he invited our attention to the proviso to section 36 of the Indian Divorce Act, which provided “that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the threes years next preceding the date of the order*******” and contended that the same principle should be applied in making the order for payment of interim alimony to the wife under the Hindu Marriage Act. On the basis of Rs. 1187/- as the net income of the husband, such an amount should, he contended, work out at about Rs. 237/- per month. In our opinion, in absence of express provision as to the maximum alimony in the Hindu Marriage Act, we should not curtail the discretion vested in courts in determining a reasonable amount of maintenance, by importation of principles from the Indian Divorce Act. There should not be any hard and fast rule in the matter of assessment of maintenance. Each case must be determined on its own facts. The husband's income shall, of course, be taken as a relevant fact and the maintenance shall be fixed regard being had to the social status, age, education and other requirements of the applicant for maintenance. Even under the Indian Divorce Act, the proportion of one-fifth is fixed as the maximum but, within the maximum, the allowance is entirely at the discretion of the court. If the husband's income is very large, then the proportion may be smaller.

8. The question we have to decide in this appeal is whether the amount of maintenance pendente lite ordered by the court was reasonable, having regard to the income of the husband. We proceed, on the basis that, apart from uncertain extra allowance, the respondent husband draws a salary of Rs. 1187/- per month. We do not make much of the allegation made by the respondent husband that he has to spend a good deal upon his aged father. From his own evidence, it appears that his father is an Advocate, having Land Acquisition case practice and, although ailing, is in a position to attend to his practice. If the father has some income of his own, he is not entirely dependent upon the respondent. The respondent should not, therefore, be allowed to make too much of filial piety and escape his just liability to his wife. On the other hand, it appears that the appellant wife has no income of her own and is still a student. She says that she has to employ tutors to coach her for University examinations and has to pay them as much as Rs. 150/- per month. We find that she is now living in her father's place and is entirely dependent upon her father for her maintenance. Regard being had to the income of the respondent husband, the age and aspirations of the appellant wife and the circumstances under which she is at present living and also regard being had to the fact that the husband has principally to spend upon himself alone, we feel that a sum of Rs. 200/- per month would be a reasonable amount of maintenance pendente lite to be paid to the wife.

9. So far as the son is concerned, he is only an infant aged about 4 years, studying in an infant school at a tuition fee of Rs. 5/- per month. We do not think that an amount of Rs. 50/- per month for his maintenance and education expenses, as ordered by the court below, is, for the time being, an unreasonable amount, regard being had to the provision of section 26 of the Hindu Marriage Act, which provides for assessment of such maintenance and costs as may be just and proper.

10. Mr. Surita argued, in the next place, that the amount of maintenance for the wife and the child and the costs of education for the child should have been allowed from the date when the notice of the action for judicial separation was served upon the appellant, that is to say, from July 18, 1959 and not from May 1960, as directed by the court below. There is considerable force in this contention. “Alimony pendente lite is usually ordered to be paid from the date of the service of the principal petition” (see Rayden on Divorce, 5th Edition, page 270). In the case of (1) Sm. Sobhana Sen v. Amar Kanta Sen (A.I.R 1959 Cal. 455) a Division Bench of this court also observed: “The well known rule is that maintenance in such cases is allowed by the court from the date of service of the notice. In giving his reasons for the departure from this rule the learned Judge says, ‘I refuse maintenance from the date of service of the 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”. We, therefore, accept the contention of Mr. Surita that the amount of maintenance to the wife and the child and also education costs of the child should be payable from July 18, 1959.

11. Before we close this judgment we desire to deal with a technical objection raised by Mr. Ghosh, learned Advocate for the respondent. Mr. Ghosh relied on the language of section 28 of the Hindu Marriage Act, which 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 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,” and argued that an order under section 24 of the Hindu Marriage Act was not appealable order under section 28 of the Hindu Marriage Act, there being no law in force which made such an order appealable. He relied upon a decision by P.N Mookerjee, J. sitting singly, in (2) Gopendra Nath Basu Mallick v. Sm. Prativa Rani Basu Mallick (66 C.W.N 388) in support of his contention, in which in dealing with a preliminary objection against maintainability of an application, under section 115 of the Civil Procedure Code, against an order under section 24 of the Hindu Marriage Act, His Lordship observed, “that section” (namely section 28) “contains no provision, making any decision appealable under it. All that it says is that the decisions under this Act, or, in other words, decrees and orders hereunder, may be appealed from under any law for the time being in force. For the appeal, therefore, reference must be made to some other law which makes the particular decree or order appealable. There is a proviso to the section, which forbids appeals in the matter of costs only, even though an order in that behalf may be appealable under some other law. The proviso, thus, restricts the right of appeal, which might have been available under some other law under the main part of the section. For purposes of appeal, therefore, reference must be made to some other law under which such appeal would lie. Mr. Ghosh could not draw my attention to any other law under which the order in the present case would be appealable. In these circumstances, his preliminary objection to the competency of the Rule must fail and is rejected.” We are unable to agree with the above judgment and to uphold the technical objection of Mr. Ghosh. The view expressed in the case of (2) Gopendra Nath Basu Mallick (supra) is opposed to the view expressed by a Division Bench of this court in (1) Sm. Sobhana Sen's case (supra) and also by a single Judge of this court in (3) Anita Karmakar v. Birendra Chandra Karmakar (65 C.W.N 786). The Division Bench observed, (i) that it would be unreasonable to hold that the Legislature was 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 and that it would be much more reasonable to think that when the Legislature took upon itself the task of making the provision as regards appeals, it intended to make definite provision, (ii) that if appealability was to depend upon the law for the time being in force, say for example, upon the Civil Procedure Code or the Letters Patent, there would be no point in making a provision in the proviso to section 28 to the effect that there shall be no appeal on the subject of costs only, (iii) that the intention of the Legislature was that all decrees (namely, decrees of nullity or judicial separation or divorce) as well as all orders for which special provision was made in the Act (namely, orders under sections 24, 25 or 26) shall be appealable, (iv) that the words “under any law for the time being in force” were added to indicate the forum, where the appeal would lie, namely, the court of the District Judge or the High Court and also the procedure for the hearing of such appeals. That an order under section 24 is an appealable order was also laid down in the case of (3) Anita Karmakar (supra). The Division Bench decision we respectfully follow. That Division Bench decision was not referred to in the case of (2) Gopendra Nath Basu Mallick (supra). We therefore, cannot agree with the view expressed in the case of (2) Gopendra Nath Basu Mallick (supra). Thus we overrule the technical objection of Mr. Ghosh.

12. In the result F.N.A 159 of 1960 is allowed in part. The appellant will get maintenance pendente lite at the rate of Rs. 200/- per month from July 18, 1959 and the order of the court below shall be modified accordingly. F.M.A 160 of 1960 is also allowed in part. The amount of maintenance to the child will stand at the figure of Rs. 50/- per month but the amount shall be payable from July 18, 1959 and the order of the court below shall stand modified accordingly.

13. The appellant is entitled to costs, which we assess at two gold mohurs in each appeal.

D. Basu, J.:— Agreeing with the judgment just pronounced by my Lord, I would like to add a few words of mine on the question of appealability of an order for maintenance pendente lite, under sec. 24 of the Hindu Marriage Act, 1955.

14. Though, as pointed out by my Lord, the Division Bench decision of this court in (1) Sobhana Sen v. Amar Kanta, A.I.R 1959 Cal. 455 is a direct authority on this point, the question is not entirely free from difficulty. We do not, however, consider it necessary to refer the question to a larger Bench as there are certain broad grounds by reason of which we agree with the view taken therein, in favour of appealability.

15. It is beyond controversy that right of appeal is a creation of statute and that where there is no express statutory provision for such right, there is no appeal. The question before us is whether such right has been conferred by sec. 28 of the Hindu Marriage Act, 1955 which is as follows:—

“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.”

16. It has been contended that this section confers no substantive right of appeal, but leaves that to be determined by ‘any law for the time being in force’. The result of this contention would be that if a decree or order is not appealable by virtue of the provisions of some other law, it is not appealable solely by virtue of the above section of the Hindu Marriage Act, 1955. But, the opening words of sec. 28 of the Hindu Marriage Act, “gives a general right of appeal” from all decrees and orders made in any proceeding under that Act. This view was taken by the Bombay High Court in the case of (4) A. v. B., I.L.R 22 Bom. 612 (614), in interpreting the corresponding language in sec. 55 of the Indian Divorce Act, 1869, to which I shall advert more fully hereafter. If we hold that the substantive law conferring the right of appeal is to be found from any law other than the Hindu Marriage Act, the words ‘all orders’, in sec. 28, at least, would be meaningless at the time when this section was enacted, for, at that time, there was no other law which made any order under the Hindu Marriage Act appealable. So far as decrees are concerned, one might fall back upon the provision of sec. 96 of the Code of Civil Procedure which makes all decrees made by a court exercising original jurisdiction appealable and decrees made under the Hindu Marriage Act might come under the purview of sec. 96 of the Code, by reason of sec. 28 of the Hindu Marriage Act.

17. The position regarding orders is, however, just to the contrary. Section 104 of the Code lays down:—

“(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:—

19. [(a) to (f) repealed by the Arbitration Act, 10 of 1940.]

(ff) an order under section 35A;

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:

Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

(2) No appeal shall lie from any order passed in appeal under this section.”

18. It is evident that an order under the Hindu Marriage Act is not appealable under the provisions of the Code and not appealable at all, unless we are prepared to hold that sec. 28 of the Hindu Marriage Act itself is “a law for the time being in force”, as referred to in sub-sec. (1) of sec. 104 of the Code which confers the right of appeal. We thus come back to the point from where we started, namely, whether sec. 28 of this special Act confers the right of appeal as regards orders made in proceedings under the Act which are not otherwise appealable under the Code.

19. The view taken by Mookerjee, J. in (2) Gopendra v. Prativa, (1961) 66 C.W.N 388, lays stress upon the words ‘under any law for the time being in force’ in sec. 28 and presumes that such law must be a law other than the Hindu Marriage Act. Such interpretation, however, as I have already stated, renders meaningless the words ‘all orders’ at the beginning of sec. 28. It must, of course, be said that the drafting of the section is not happy. But, as the courts of the highest authority have repeatedly observed, a statute or any part thereof is not to be condemned or rendered nugatory, unmeaning or redundant because of the draftsman's unskilfulness,—if it is possible to give the language used a meaning which will sustain the statute. As the House of Lords said in (5) Salmon v. Duncombe, (1886) 11 A.C 627 (634):—

“It is a very serious matter to hold that when the main object of a statute is clear it should be reduced to a nullity, by the draftsman's unskilfulness or ignorance of law. It may be necessary to a court of justice to come to such a conclusion, but nothing can justify it except necessity, or the absolute intractability of the language used.”

20. In my opinion, it is possible to interpret the word ‘any’ in sec. 28 of the Hindu Marriage Act to include the Hindu Marriage Act itself. If so interpreted, the right of appeal as well as the other incidents of appeal may be derived not only from the Civil Procedure Code, the Letters Patent and similar law of Procedure, but also from those of the Hindu Marriage Act itself, in so far as they go. Such interpretation is supportable by the legislative history of the section as well as the interpretation given to the corresponding section of the Indian Divorce Act which is on the statute-book since 1869 and must have served as a model to the draftsman who drafted the Special Marriage Act of 1954 and the Hindu Marriage Act of 1955. I shall now set out the parallel provisions of sec. 55 of the Indian Divorce Act, 1869, sec. 39 of the Special Marriage Act, 1954 and of sec. 28 of the Hindu Marriage Act of 1955.

sec. 55 of the Indian Divorce Act, 1869. Sec. 39 of the Special Marriage Act, 1954. sec. 28 of the Hindu Marriage Act, 1955. “All decrees and orders made by the court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the 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 the laws, rules and orders for the time being in force: “All decrees and orders made by the court in any proceeding under Chapter V or Chapter VI 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 the law for the time being in force: “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 from a decree of a District Judge for dissolution of marriage or of nullity of marriage: nor from the order of the High Court confirming or refusing to confirm such decree: Provided that every such appeal shall be instituted within a period of ninety days from the date of the decree or order.” Provided that there shall be no appeal on the subject of costs only. Provided also that there shall be no appeal on the subject of costs only.

21. It will be seen that the provision in section 28 of the Hindu Marriage Act differs from that in sec 55 of the Divorce Act only on two points:

(i) Firstly, the article ‘the’ in the expression “the laws……” has been substituted by the article ‘any’. Grammatically, it means no change. Both these expressions may be interpreted so as not to exclude the Hindu Marriage Act itself.

(ii) Secondly, the first Proviso to sec. 55 of the Divorce Act has been omitted from the corresponding provisions of both the Acts of 1954 and 1955. It is clear that the intention of the Legislature was to make appealable a decree for dissolution of marriage or nullity, passed by a District Judge as well as the order of the High Court confirming or refusing such decree; which were not appealable under the Divorce Act. Now, to say that such decree and order were not appealable in view of the Proviso to sec. 55 of the Divorce Act is to hold that the first paragraph of that section conferred a substantive right of appeal from all decrees and orders made in any suit or proceeding under that Act, to which the first Proviso constituted an exception, and so it has been held by the courts in interpreting that Act, as we shall see presently. Again, to hold that this Proviso has been omitted from the Acts of 1954 and 1955 deliberately in order to take away the exception, is to presume, logically, that the first paragraph of sec. 28 of the Act of 1955, as of sec. 39 of the Act of 1954, deals with the substantive right of appeal from all decrees and orders made under these Acts, to which the only exception is contained in the remaining Proviso which engrafts a special period of limitation in the case of the Act of 1954 and excepts a decree or order for costs only, in the case of the Act of 1955, with which we are concerned.

22. The decisions on this point under sec. 55 of the Indian Divorce Act, 1869 are not, of course, many, but it appears that it has never been held that the first paragraph of sec. 55 of that Act did not confer the right of appeal from decrees and orders made under that Act and that the right of appeal had to be derived, if at all, from enactments other than that Act. We have already referred to the observation in (4) I.L.R 22 Bom. 612 (614), which, though directly concerned with a ‘decree’, proceeded upon the view that the words ‘under the laws, rules and orders’ were words restrictive of the right of appeal conferred by the preceding words of the first paragraph of the section. Hence, the right of appeal conferred by sec. 55 was subject to the law of limitation but the court held that “there is nothing …. in the Limitation Act which interferes with the full scope of section 55 of the Divorce Act.” These observations of the Division Bench of the Bombay High Court, thus, throw much light upon the intention of the Legislature that lay at the back of sec. 55 of the Divorce Act.

23. Consistently with this interpretation, two Single Judges of the Lahore High Court have held that sec. 55 of the Divorce Act itself confers the right to appeal from decrees and orders made under the Act except those which come under the Provisos thereto. In (6) Chamerette v. Chamerette, A.I.R 1937 Lah. 177, thus, Jai Lal, J., held that an interlocutory order relating to the admissibility of a piece of evidence in a matrimonial proceeding was appealable under sec. 55 of the Act and in (7) Noble v. Gladys, reported at p. 862 of the same Report, Coldstream, J. held that sec. 55 itself made appealable all orders including an order for maintenance under sec. 41 of the Act.

24. As stated before, no dissentient voice has ever been raised against the above interpretation, namely, that it was the intention of the Legislature, in enacting sec. 55 of the Divorce Act, to provide for the substantive right of appeal from decrees and orders made in suits and proceedings under that Act, subject to the exceptions engrafted in that section.

25. If this be admitted to have been the intention of the Legislature with respect to the Divorce Act, that intention is not only continued but broadened while enacting the statutes of 1954 and 1955, which, as pointed out earlier, omitted to adopt the first Proviso of sec. 55 of the Divorce Act in order to eliminate the exceptions referred to in that Proviso.

26. In the result, we respectfully agree with the view taken by the Division Bench of this court in (1) Sobhana Sen v. Amar Kanta Sen, A.I.R 1959 Cal. 455.

27. Nevertheless, we consider it necessary to draw the attention of the Legislature to the unsatisfactory nature of the language used in the three enactments referred to above, so that a suitable opportunity may be availed of in order to improve the language in order to obviate any controversy such as is referred to in this judgment and, for this purpose, a copy of this judgment may be forwarded to the Legislative Department of India, in the Ministry of Law.

S.K.B