A substantial question of law as to the interpretation of the Constitution must be involved and its determination must be necessary for the disposal of the case in order to invoke the jurisdiction of the High Court under Article 228 of the Constitution.

( 1 ) THIS Rule under Article 228 of the Constitution has been issued at the instance of the defendant-husband in a proceeding for divorce under section 27 of the Special Marriage Act, 1954 filed in the Court of the District Judge, Alipore, by the opposite-party/wife. Divorce has been asked for by the opposite party on the ground as mentioned in Clause (d) of Section 27 (1) of the Special Marriage Act, that is, that since the solemnization of the marriage her husband treated her with cruelty.

( 2 ) AFTER filing the divorce proceeding, the opposite party filed an application before the learned District Judge praying for alimony pendente lite under Section 36 of the Special Marriage Act. That application was opposed by the petitioner husband. The application came up for hearing before the 9th Additional District Judge, Alipore. The learned Additional District Judge, after hearing the parties, by an order dated October 3, 1977 allowed the said application and directed the petitioner to pay a monthly maintenance of Rs. 165/- to the opposite party with effect from the date of the petitioner's appearance in the proceeding and further directed to pay a sum of Rs. 300/- on account of cost of the litigation. Being aggrieved by the said order of the learned Additional District Judge, the petitioner preferred an appeal to this Court, being F. M. A. T. No. 319 of 1977. The appeal was, however, withdrawn by the petitioner subsequently on the ground that no appeal lay to this Court against an order granting alimony pendente lite. Thereafter, the petitioner filed an application before the learned Additional District Judge under Sections 151, 152 and 153 of the Code of Civil Procedure. In that application the petitioner prayed that the order of alimony pendente lite should be recalled as it was ultra vires the Constitution of India. The learned Additional District Judge, however, dismissed the said application of the petitioner. Thereafter, the petitioner filed an application under Article 228 of the Constitution before this Court praying for the transfer of the said divorce proceeding to this Court on the ground that it involved substantial questions of law as to the interpretation of the Constitution. Upon the said application, the present Rule was issued.

( 3 ) MR. Arun Kumar Dutt, learned Advocate appearing on behalf of the petitioner, submits that Section 36 of the Special Marriage Act in providing for granting alimony pendente lite to the wife makes a discrimination on the ground of sex and, as such, it is ultra vires the provision of Article 15 of the Constitution. Further, it is submitted that Section 36 also puts unreasonable restrictions on the exercise of the right of the male sex, who are the husbands and, accordingly, it is also ultra vires Article 19 (1) (f) of the Constitution. Mr. Dutt has relied on a number of decisions in order to persuade us that a substantial question of law relating to the interpretation of the Constitution is involved. The said decisions are (1) Phulmani Dibya v. State of Orissa and Others, AIR 1974 Orissa 135 (F. B.), (2) In re : the Special Court Bill 1978, 1979 (1) S. C. C. 380, (3) State of Gujarat v. Shri Ambica Mills, AIR 1974 SC 1300; (4) M. R. Balaji v. The State of Mysore, AIR 1963 SC 649; (5) K. A. Abbas v. Union of India, AIR 1971 SC 481 apart from the above decisions, Mr. Dutt has also placed reliance on two decisions of the American Supreme Court in (6) Regents of the University of California v. Allan Bakke, 57 L. Ed. 2d. 750 and (7) Orr. V. Orr. , 440 U. S. 268.

( 4 ) THE scope of the present Rule under Article 228 of the Constitution is limited. Article 228 provides as follows: -?if the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for disposal of the case, it shall withdraw the case and, subject to the provisions o