This was a revision application against an order passed under S. 24 of the Hindu Marriage Act 1955 by the learned Civil Judge, Senior Division, Baroda, by which he directed the petitioner to pay to his wife opponent No. 1 Rs. 250/- per month for maintenance pendente lite and Rs. 300/- for the expenses of the proceeding filed by her for judicial separation and permanent alimony under S. 10 of the Hindu Marriage Act. There was a further direction in the order that the petitioner should pay arrears of maintenance upto date and Rs. 300/- for the expenses of the proceedings on or before 15th June 1959 and on his failure to do so his defence was to be struck off.
1. (After stating the facts His Lordship proceeded as follows :) Mr. Thakkar, learned Advocate appearing on behalf of opponent No. 1, has raised a preliminary objection and contended that against the order passed by the learned trial Judge an appeal would be competent to the District Court and if an appeal is competent, then contends Mr. Thakkar, a revision application would not be maintainable. The argument of Mr. Thakkar on this point briefly is that under S. 28 of the Act all decrees and orders made by the Court are expressly declared to be appealable and this being an order directing payment of interim maintenance under S. 24, it would be appealable and the appeal would lie to the District Court. In support of this argument Mr. Thakkar relies on a recent judgment of this court Gangadhar Rakhamaji v. Manjula, 61 Bom LR 442 : (AIR 1960 Bom 42). In that case it was held that when a Court of Civil Judge, Senior Division, notified by the State Government as having jurisdiction in respect of matters dealt with in the Act passes a decree in a petition under the Act, an appeal against the decree lies to the District Court of the district and not to tile High Court. Now, that was a case where an appeal was filed to this Court against the dismissal of the husband’s petition for divorce or judicial separation under the Act. The contention of Mr. Thakkar is that all orders passed by the Court of Civil Judge, Senior Division, under the Act would stand on the same footing as decrees, and appeals from such orders must lie to the District Court. In order to test the correctness of his
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argument, it is necessary to refer to the provisions of S. 28 of the Act which runs as follows :
'All decrees and orders made by the Court in any proceedings 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.'"
This section consists of two parts. The first part of the section deals with the mode or manner of executing decrees and orders passed by the Court in any proceedings and the section provides that such decrees and orders are to be enforced in the same manner as the decrees and orders of the Court exercising original Civil Jurisdiction. The second part of the section deals with the question of appeals from such decrees and orders made by the Court in the proceedings under the Act, and provides that all decrees and orders made by the Court in any proceedings under the Act may be appealed from under any law for the time being in force. Now, the short question that falls for consideration is the interpretation to be put on the second part of the section which deals with appeals from decrees and orders made by the Court under S. 28 of the Act. The argument of Mr. Thakkar is that under S. 28 of the Act all decrees and orders made by the Court in any proceeding under the Act are made subject to an appeal and that the reference to any law for the time being in force is only for the purpose of prescribing the procedure which will govern these appeals, and the forum where the appeal is to be preferred. Thus, according to Mr. Thakkar, if an order is passed by the Court of the Civil Judge, Senior Division, in any proceeding under the Act, the question whether an appeal lies is not to be determined by reference to any law for the time being in force, such as the Code of Civil Procedure. The appeal is provided for by S. 28 itself and the procedure governing that appeal will be the procedure laid down under the Code of Civil Procedure and the law for the time being in force for determining the forum of the appeal is the Bombay Civil Courts Act, as held in 61 Bom LR 442 : (AIR 1960 Bom 42), already referred to above. This argument of Mr. Thakkar, though plausible, cannot be accepted. As I have already indicated, in 61 Bom LR 442 : (AIR 1960 Bom 42), the appeal was against a decree dismissing a petition for divorce or judicial separation and this Court held that 'the law for the time being in force' for determining the forum of appeal was the Bombay Civil Courts Act and, therefore, the appeal lay to the District Court and an appeal was not competent to the High Court. Therefore, that case can be of no assistance to Mr. Thakkar so far as this preliminary objection is concerned. The words 'under any law for the time being in force' apply obviously to both the parts of S. 28. Under the first part, all decrees and orders made by the Court in any proceeding under the Act are to be enforced in like manner as the decrees and orders of the Court made in exercise of the original civil jurisdiction are enforced under any law for the time being in force; and that has obviously a reference to the Code of Civil Procedure. The procedure to be applied in enforcing the decrees and orders made by the Court under the Act is to be the procedure relating to execution of decrees and orders contained in the Code of Civil Procedure. If that be so, in my judgment, the question whether an appeal lies from an order passed by the Court under the Act must be also determined by the provisions of the Code of Civil Procedure. The proviso to S. 28 says that there shall be no appeal on the subject of costs only. To that extent S. 28 provides an exception, and against an order of costs only no appeal will be competent. Under S. 21 of the Act, subject to the other provisions contained in the Act and to such rules as the High Court may make in this behalf, all proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. An appeal, it is well settled, is a continuation of the original proceedings. The Legislature having already provided that the Code of Civil Procedure is to govern all proceedings under the Act, if Mr. Thakkar’s argument were to be accepted it would mean that the Legislature again emphasised in S. 28 that the procedure governing the appeals would be that under the Code of Civil Procedure. In my view, what the Legislature intended by referring to "any law for the time being in force" was that the appealability of decrees and orders should be determined by the provisions of the Code of Civil Procedure. In my judgment, S. 28 of the Act does not provide for an appeal against every order made by the Court in the proceedings under the Act, but only such orders which can fall within the definition of decrees under Section 2(2) of the Civil Procedure Code or with regard to which an appeal is provided under the Code.
2. The order passed by the trial Court is an order granting interim relief under S. 24 of the Act and it will have to be distinguished from an order granting permanent alimony and maintenance, which the Court can pass under Sec. 25. Such an order cannot amount to a decree as defined in S. 2 (2) of the Civil Procedure Code and, therefore, would not be appealable as decree. Mr. Thakkar concedes, and rightly, that the present order does not fall within S. 104 nor under O. 43, R. 1 of the Code. It would not be, therefore, appealable under the Civil Procedure Code. But Mr. Thakkar argues that it is appealable by virtue of S. 28 of the Act. If this argument were to be accepted, it would mean that all interlocutory orders passed by the Court in any proceeding under the Act, which proceeding is to be regulated by the Code of Civil Procedure by virtue of S. 21 of the Act would be appealable even though such orders may not be appealable under the Code itself. Such a result could not have been intended by the Legislature.
3. In support of his contention, Mr. Thakkar has invited my attention to two rulings of the Lahore High Court. In R.C. Chamarette v. Mrs. P.E. Chamarette, AIR 1937 Lah 176, during certain proceedings under the Indian Divorce Act pending in the Court of an Additional District Judge, the Court had held that the husband’s evidence relating to the illegitimacy of his two children was inadmissible. The husband appealed under S. 55 of the Indian Divorce Act. The opposite party contended that the appeal was not competent and it was held by the Lahore High Court that an appeal lay from such an order under S. 55 of the Act. This was a decision of a single Judge. Now, S. 55 of the Indian Divorce Act provides that 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. It is not necessary to refer to the provisos to this section, though the second proviso is similar to the proviso under S. 28 of the Act viz., that there shall be no appeal on the subject of costs only. It is true that the wording of S. 55 of the Indian Divorce Act is similar to the wording of S. 28 of the Act and the decision of the Lahore High Court would undoubtedly favour the construction which Mr. Thakkar urges should be placed on S. 28. But in deciding that an appeal lay from the order of the Additional District Judge holding the husband’s evidence to be inadmissible, the learned Judge of the Lahore High Court observed as follows :
'There may be some order of a formal character against which an appeal would not lie, but this is an order which was passed by the Court after hearing the arguments of the parties, and I am inclined to think that this appeal is competent.'
I fail to see how such a distinction can be drawn in case once it is held that an appeal lies under S. 55 of the Act itself which must necessarily mean that all orders passed under S. 55 would be appealable. The second decision of the Lahore High Court on which Mr. Thakkar relies is Millicans v. Millicans, AIR 1937 Lah 862, which is also a decision of a single Judge. In that case, the District Judge of Delhi had granted a decree subject to confirmation by the High Court dissolving a certain marriage and the learned District Judge had also passed an order in the suit directing the husband to pay to the wife an amount of Rs. 120/-and given the custody of the three children of the parties to the wife. An appeal was filed against the decree and an objection was raised that no appeal lay either against the decree dissolving the marriage or the order regarding the custody of the children and their maintenance. But it was admitted on behalf of the appellant that no appeal lay against the decree. The only question which was agitated before the Lahore High Court by the appellant was as regards the amount fixed by an order of the District Judge of Delhi granting maintenance allowance for the children. It was held by Mr. Justice Coldstream that the language of S. 55 of the Divorce Act provides expressly for an appeal from all orders passed by the District Judge. According to him, the words
'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'
in S. 55 of the Divorce Act must be held to apply only to the procedure to be followed and the Court to which the appeal is filed. This decision is undoubtedly in favour of Mr. Thakkar’s contention. But, with respect, it appears that the attention of the learned Judge was not drawn to S. 45 of the Divorce Act, which provides that the procedure under the Code of Civil Procedure is to apply to all the proceedings under the Act which is similar to S. 21 of the Act. In my judgment, therefore, S. 28 of the Act cannot be construed as providing for appeals against all orders of the Court in any proceeding under the Act as contended by Mr. Thakkar. Under S. 28 of the Act only such orders as are made by the Court in any proceeding under the Act against which an appeal is provided in the Code of Civil Procedure would be appealable orders, and not others.
4. Mr. Thakkar also invited my attention to a case of this Court in Kamala Shama v. Shama Rupchand, 60 Bom LR 633 : (AIR 1958 Bom 466), in which a Division Bench of this Court decided an appeal under S. 24 of the Act, where it was held that under S. 24 the parties standing in need of relief, whether the husband or the wife, can obtain relief, irrespective of the fact whether he or she had initiated the proceeding or not. In that case, the wife had filed an application under S. 24 claiming Rs. 50/- per month as maintenance allowance and costs of the proceedings from the husband who had filed a petition under S. 12 of the Act for a decree of nullity of his marriage. The trial Judge had dismissed that application for interim relief and the wife filed an appeal to this Court before the Nagpur Bench and that appeal was numbered as Misc. (First) Appeal No. 197 of 1956. Now, undoubtedly in that case the appeal was entertained against the order of the trial Court dismissing the application for interim maintenance filed by the wife. But the question as to whether an appeal was competent was not raised in that case nor was it decided. In my view, therefore, that case also will not be of any assistance to Mr. Thakkar.
5. Mr. Thakkar also referred me to a decision in Annapurnamma v. Ramakrishna Sastry, AIR 1959 Andhra Pra 49, where the High Court was dealing with a Letters Patent Appeal against an order of a Single Judge granting the wife’s petition for interim maintenance under S. 24 of the Act and the question was whether the appellate Court had power to make an interim order under S. 24 of the Act in the appeal by the wife against an order for dissolution of marriage obtained by the husband. It was observed by K. Subba Rao, C. J., that S. 28 conferred a right of appeal by reference to any law, and that the right of appeal was one conferred under the Act and, therefore, it was a proceeding under the Act. Explaining this, he observed:
'That proceeding starts in the original Court and continues till it is disposed of by the appellate Court. It is common place that an appeal is a continuation of the original proceeding. The fact that an appeal lies under the Civil Procedure Code against an order in proceeding under the Act, will not make the appeal any-the-less a proceeding under the Act, for, the appeal also relates to the adjudication in respect of the rights conferred under the Act.' That is why it was held that the appellate Court had jurisdiction to make an order under S. 24. This decision does not, in my opinion, help Mr. Thakkar. On the contrary, it shows that K. Subba Rao C. J. referred to S. 28 conferring a right of appeal by reference to any law and stated that an appeal lay under the Civil Procedure Code against an order in a proceeding under the Act and consequently the appeal also would be a proceeding under the Act.
6. I am of the view, therefore, that the preliminary objection raised by Mr. Thakkar against the maintainability of this revision application must fail.
7. On the merits, Mr. Patel, learned advocate appearing on behalf of the petitioner, has raised two objections to the order passed by the learned trial Judge. In the first instance, he says that no proper opportunity was given to the petitioner to place before the trial Court all the facts about his financial position. I have already indicated some of the irregularities which seem to affect the record in this case. It appears from the allegations in the petition, which are supported by an affidavit of the learned advocate appearing on behalf of opponent No. 1 in the trial Court, that when search was taken on 6-4-1959 and also on 19-4-1959 some documents were not on record. It is apparent from the learned trial Judge’s order that he relied on the facts contained in Exhibit 65, the additional affidavit filed on behalf of opponent No. 1. Mr. Patel contends that the affidavit was not on the record when opponent No. 1"s advocate took a search on 29-4-1959, though that affidavit appears to be of the date 6-4-1959 and seems to have been filed on 6-4-1959. It is significant that there is no mention of Exhibit 65 in the roznama of the case. As already indicated, the endorsement on Exhibit 65 in red ink does not bear the signature or the initials of the Civil Judge, and it is Mr. Patel’s allegation that Exhibit 65 though it is dated 6-4-1959 was not filed on that day but must have been placed on the record some time thereafter. In view of what the petitioner alleges, a part of which appears to be borne out by the record, I propose to remand this case to the trial Court for a fresh hearing of the application made by opponent No. 1 for interim maintenance. The trial Court on receipt of the papers must give an opportunity to the petitioner to answer the allegations made in Exhibit 65. Both the parties will be allowed to lead such evidence as they deem proper in support of their respective cases on the application (Exhibit 5).
8. The other objection raised to the order by Mr. Patel is that the trial Court had no jurisdiction to order that in case the petitioner failed to pay the arrears of maintenance upto date and Rs. 300/- for expenses of the proceedings on or before 15-6-1959 his defence was to be struck off. This, says Mr. Patel, is an order not warranted by the provisions of the Code of Civil Procedure. Under O. 11, R. 21 of the Cade the Court has the power to strike off defences in case of failure of a party to comply with any order to answer interrogatories or for discovery or inspection of documents. An order passed under O. 11, R. 21, is appealable under O. 43, R. 1 (f). Obviously the present order is not an order under O. 11, R. 21. It is contended by Mr. Thakkar that the Court can strike off defences by virtue of its inherent power under S. 151 of the Code. Now, in the present case, the order that the petitioner’s defence will be struck off if he did not carry out the trial Court’s order on or before 15-6-1959 is contained in the order for interim maintenance itself. There is no question of any contumacious conduct on the part of the petitioner. In W. Codd v. B. E. Codd, 25 Bom LR 339 : (AIR 1924 Bom 132), Mr. Justice Marten, as he then was, expressed his view that if, in a matrimonial suit, the husband is ordered by the Court to give security for the wife’s costs and fails to give it, then where the husband is the petitioner his petition should be stayed and not dismissed; and where the wife is the petitioner, the husband’s defence should not be struck out but he should be proceeded against for contempt if he is proved to be able to pay but contumaciously refuses to do so. Normally, therefore, it appears that the Court in the exercise of its matrimonial jurisdiction cannot order that the defence of a party should be struck off for failure to pay interim maintenance unless the refusal is contumacious. As I have already indicated, the question of any contumacious conduct on the part of the petitioner has not arisen at the present stage. In Tara Singh v. Jaipal Singh, ILR (1946) 1 Cal 604, it was held by the Calcutta High Court that where the husband was not guilty of contempt of Court, his failure to comply with the Order of the Court for payment of alimony did not disentitle him from being heard on a petition for divorce by the wife. Mr. Thakkar relied on a decision of the Madras High Court, Mahalingam Pillai v. Ansavalli, (1956) 2 Mad LJ 289, where it was observed that the orders granting alimony pendente lite could not only be executed by the wife but where these payments are made a condition precedent for the taking up of the trial of the petition or hearing of an appeal therefrom, if these orders are not complied with, the petition or appeal can be dismissed. Now, the actual facts in the Madras case were that there was an order of Mr. Justice Basheer Ahmed Sayeed directing the husband to pay alimony pendente lite and that order had been contumaciously disobeyed by the husband and it was urged in appeal on behalf of the wife that the appeal should be straightway dismissed. That was not accepted by the appellate Court which decided to give an opportunity to the husband to pay up within a reasonable time, because the payment had not been made a condition precedent for the hearing of the appeal. I do not think that the observations of their Lordships of the Madras High Court in that case would affect the general principle which has been laid down by Mr. Justice Marten in 25 Bom LR 339 : (AIR 1924 Bom 132) referred to above.
9. As I propose to set aside the order of the trial Court, Mr. Thakkar has requested me that I should give some relief to opponent No. 1 pending the hearing of her application for interim maintenance and costs of the proceedings in the trial Court. Mr. Patel agrees that his client would deposit in the trial Court, within a month from today, an amount of Rs. 300/- which may be withdrawn by opponent No. 1, without any security and that amount would be taken into account in any final order that may be passed in the application of opponent No. 1.
10. I, therefore, set aside the order passed by the learned trial Judge and direct the trial Court to hear the application (Exh. 5) of Opponent No. 1 after giving an opportunity to the petitioner to answer the allegations in Exhibit 65 and an opportunity to both the parties to lead such evidence as they think proper in support of their respective cases. An amount of Rs. 300/- should be deposited by the petitioner in the trial Court, within one month from today, and opponent No. 1 will be at liberty to withdraw that amount without any security and that amount will be taken into account at the time final orders are passed on Exhibit 5. Both the parties should be allowed to lead evidence at the hearing of Exhibit 6 before the end of September 1959. Liberty to apply to opponent No. 1 in case the petitioner does not pay Rs. 300/- within the time specified. The application (Exh. 5) will be disposed of by the end of September 1959. Costs of this revision application will be costs in the proceedings.