An order refusing to grant interim maintenance under Section 24 of the Hindu Marriage Act, 1955, is not appealable under the provisions of the Hindu Marriage Act, 1955, or the Civil Procedure Code, 1908.

CHANDRA REDDY, C. J.

( 1 ) THIS is an appeal against an order refusing to grant interim maintenance under Section 24 of the Hindu Marriage Act (Act XXV of 1955) (hereinafter referred to as the Act ).

( 2 ) THE facts that have contributed to this litigation may be briefly set out. The appellant is the wife of the respondent. They were married in April 1953, and thereafter, they lived for some time in the residence of the respondents father. Later on they took up their abode at Visakhapatnam. Till October 1955, the parties lived together -- and there is controversy as to whether they got on amicably and lived a happy life. Whatever that be, the trouble started when the appellant had an attack of small-pox and was sent to her parents house in Rajahmundry at her request according to the respondent, and without her consent, according to the appellant. Subsequently, she would not go back to her husband, whatever might be the reasons with which we are not concerned at present.

( 3 ) IT is the case of the respondent that having made numerous attempts to win her hack to him but unsuccessfully he filed a petition (or restitution of conjugal rights in the Court of the District Judge, Rajahmundry (O. P. No. 70 of 1957 ). This was opposed by the appellant on the grounds which it is not necessary to mention, as they do not have much of a bearing on the present enquiry. Pending that petition, the appellant applied for a declaration of the nullify of the marriage between them, under Section 12 (1) (a) of the Act making several allegations.

( 4 ) SHE also filed I. A. No. 599 of 1957 in O. P. No. 70 of 1957 i. e. , petition by the respondent for restitution of conjugal rights for interim maintenance and for legal expenses. This was resisted by the respondent. The trial Court dismissed the petition with regard to her claim for interim maintenance on the ground that the petitioner was not entitled to any maintenance under the Act as she had refused to go and live with her husband. It is this order that is the subject-matter of this appeal.

( 5 ) A preliminary objection is raised by the learned counsel for the respondent as to the maintainability of the appeal. It is urged by Sri Somasundaram that no appeal lies against an order refusing to giant interim maintenance under Section 24 of the Act. As the decision of this question turns upon the construction to be placed on Section 28 of the Act, it is convenient to read it here. It reads:--"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 the original civil jurisdiction are enforced and may be appealed from under any law for the time being in force. "it is plain that this section by itself does not confer any right of appeal. The expression "may be appealed from under any law for the time being in force" is significant. This conveys the idea that an appeal could be filed against decrees and orders, if there is any provision therefor under any law. We have, therefore, to see if there is any law which gives a right of appeal against the decrees and orders passed under this Act. There is no specific reference to any other law in the enactment which vests such a right of appeal in the aggrieved party.

( 6 ) HOWEVER, Section 21 of the Act gives a clue to the solution of this problem. That Section says.--"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. "it is manifest that, by reason of this Section, the provisions of the Civil Procedure Code are made applicable to proceedings under this Act, subject to other provisions in the Act and the rules made by the High Court. There are no provisions in the Act with regard to right of appeal against orders passed under this Act, nor are there rules made by the High Court gove

Click Here to Read the rest of this document