GUPTA, J.—-This is an appeal against an order passed by a learned Single Judge of this Court on the wifes application under sec. 24 of the Hindu Marriage Act (hereinafter called the Act)

2. The respondent filed a petition for divorce before the District- Judge, Jodhpur in which a decree for divorce was passed on January 4, 1977. The appellant Smt. Priti Parihar filed an appeal in this Court against the aforesaid decree. Along with the appeal she also filed an application under sec. 24 of the Act praying for grant of interim maintenance and expenses of the appeal. The learned Single Judge by his order dated April 15, 1977 directed the respondent to pay to the appellant a sum of Rs. 200/- per month by way of maintenance pendente lite and also awarded her a sum of Rs. 400/- by way of expenses of the appeal. This order has been challenged by the wife in this appeal.

3. A preliminary objection has been raised in respect of the maintainability of the appeal and it has been urged by the learned counsel for the respondent that on account of the provisions of Sec. 39 of the Marriage Laws (Amendment) Act, 1976 (Act No. 68 of 1976) (hereinafter referred to as "the Amending Act"), the newly substituted sec. 28 has been made applicable to all orders passed under Sec. 24 of the Act is no longer appealable. The provisions of sub sec. (b) of Sec 4 of the Act have been relied upon by the learned counsel in support of the submission that Sec. 18 of the Rajasthan High Court Ordinance (hereinafter called "the Ordinance") is excluded from its operation, so far as the matters provided under the Act are concerned Lastly, it has been urged that the order passed by the learned Single Judge is an interim order and even if Sec. 18 of the Ordinance is applicable, no appeal is maintainable against the impugned order. Learned counsel for the appellant, on the other hand, contended that Sec. 28 of the Act confers a right of appeal in certain matters and does not take away the existing right of appeal contained in sec. 18 of the Ordinance and that the amend-ment introduced by the Amending Act did not bring about any change in this respect. It was also urged that the impugned order amounts to a judgment" within the meaning of Sec. 18 of the Ordinance.

4. Sec. 28 of the Act, as it stood prior to its amendment by the Amending Act reads as under: —

"S.28. Enforcement of, and appeal from, decrees and orders,...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 the 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."

After its amendment by the Amending Act No. 68 of 1976, sub-section (2) of Sec. 28, which is relevant for our present purpose, reads as under : —

"28 Appeals from decrees and orders—

(1)............................................

(2) Orders made by the court in any proceedings under this Act, under section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3)................................................"

A bare reading of the provisions of Sec. 28 before and after its amendment by the Amending Act makes it amply clear that although ail decrees and orders made by the court in the proceedings under the Act were appealable, earlier, yet after the amendment only the orders passed by the court under Sec. 25 and 26 in the proceedings under the Act are appealable now, if they are not interim orders, besides all decrees made by the court in the proceedings under the Act, which have been made appealable under sub-section (1) of Sec. 28 of the Act as amended.

5. Now the question which arises for determ

Click Here to Read the rest of this document