1997 Supreme(Guj) 447

Gujarat High Court
Judgename :M.S.Parikh
Sunita Anilkumar Agrawal - Appellant
Versus
Anilkumar Balmukund Agrawal - Respondent
First Appeal 920 of 1991
Decided On : 09/12/1997

Headnote:(a) Hindu Marriage Act, 1955 - Sec. 24 - Maintenance pendente lite & expenses of proceedings - Application for made in second appeal - Maintainability - An appeal & for that matter even a second appeal would obviously relate to the adjudication of the rights of the parties to the main petition - Same could hardly be said not proceedings under the Act - Hence challenge to the maintenance of application on that ground not sustainable - Argument that final relief in the main petition not being maintenance same can not be allowed as interim relief is also without force considering the nature of proceedings.The words proceeding under this Act would assume importance for the purpose of dealing with the submission regarding maintainability of the application.It should be noted that any proceeding under the Act is a proceeding in respect of a right conferred under the Act and touches, in most cases, the marital status of the party to the marriage. Such a proceeding starts in the Trial Court and continues till the rights of the parties are finally decided or, in most cases, the status of the parties is finally adjudicated. Thus, an appeal, and for that matter even a Second Appeal would obviously relate to the adjudication of the rights of the parties to the main petition and it can hardly be said that a First Appeal or even a Second Appeal is not a proceeding under the Act.It has, therefore, to be held that the present application under Sec. 24 of the Act is maintainable.It is not necessary that interim alimony might be claimed only in an application wherein there is a final relief for maintenance, for example under Sec. 25 of the Act. Sec. 24 of the Act confers a defined right to a specified party to the proceedings under the Act. Hence, the submission that the respondents application for interim alimony cannot be entertained as it cannot be said to be for an interim relief in aid of final relief, cannot be accepted.[Para 23](b) Hindu Marriage Act, 1955 - Secs. 24 & 25 - Application for interim relief - Maintainability after final order under Sec. 25 by Trial Court - Order can only be made when a decree is passed granting any substantive relief under the Act & not when the main petition itself is dismissed either on merits or otherwise - In the instant case when learned District Judge reversed the decree of divorce & dismissed the petition for divorce, order of Trial Court passed under Sec. 25 could not remain alive - In the circumstances, application for interim relief made during pendency of second relief held maintainable.The order of permanent alimony and maintenance is required to be passed `at the time of passing any decree or at any time subsequent thereto. These words indicate that the order can only be made when a decree is passed granting any substantive relief under the Act and not when the main petition itself is dismissed either on merits or otherwise. If no request is made at the time of passing of such decree, an application for the same might be made subsequently. Thus, when the learned Joint District Judge reversed the decree for divorce and dismissed the petition for divorce, the question of granting permanent alimony did not remain alive. This is the clear legal position in so far as permanent alimony is concerned.

       [Para 23](c) Hindu Marriage Act, 1955 - Sec. 28 - Civil Procedure Code, 1908 - Sec. 100 (As amended) - Second appeal - Competent on a substantial question of law - Guidelines to determine what is a substantial question of law - Stated - Discussing & appreciating the evidence Court held, that no error of law has been committed by Court in itss findings requiring interference.The right of second appeal conferred by Sec. 28 of the Hindu Marriage Act is limited to the grounds set out in Sec. 100 of the Code of Civil Procedure on the questions of law and not on questions of fact.A bare look at Sec. 100 CPC shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court.One can define it negatively. For instance, if there is a well established principle of law and that principle is applied to a given set of facts, that would certainly not be a substantial question of law. Where the question of law is not well settled or where there is some doubt as to the principle of law involved, it certainly would raise a substantial question of law which would require a final adjudication by the highest Court.[Para 26]The learned Judge has very extensively examined the evidence placed on record and in his well reasoned judgment he has weighed preponderance of probabilities from the evidence on record and not from his own guesswork. It is therefore, clear that no error of law has been committed by him even in respect of the last submission made by the learned counsel for the petitioner.[Para 38](d) Hindu Marriage Act, 1955 - Sec. 13 - Decree for dissolution of marriage - Irretrievable break down of marriage - Scope of - Court observed that there is no provision in the Act for granting a decree for dissolution of marriage on alleged ground of irretrievable break down of marriage - Constitution of India, 1950 - Art. 142 - High Court has no such powers.Court is of the opinion that there is no provision in the Act for granting a decree for dissolution of marriage on the ground of irretrievable break down of marriage. If the prayer in that respect is granted by this Court, it would amount to introducing a ground which does not find its place so far in the Act. There is no power or jurisdiction akin to Art. 142, with the High Court in so far as substantive statutory rights of the parties are concerned.[Para 42]