An order made under Section 24 of The Hindu Marriage Act by a civil court is not appealable.

S. Nagamuthu, J.

An important question as to whether an order for maintenance pendente lite passed under Section 24 of The Hindu Marriage Act, by a civil court [other than Family Courts constituted under The Family Courts Act, 1984] is appealable or not, has come up for consideration in this revision petition.

2. The petitioner is the wife of the respondent. The respondent has filed HMOP No. 119 of 2009 on the file of the learned Subordinate Judge, Ranipet, Vellore District, for divorce. Pending the said case, the petitioner filed an interlocutory application in I.A. No. 39 of 2010 seeking maintenance pendente lite at Rs.6,000/- per month and litigation expenses of Rs.15,000/- from the respondent. The learned Subordinate Judge, by his order dated 28.03.2011, dismissed the same. Aggrieved over the same and contending that the said order is not appealable, the petitioner has come up with this revision under Article 227 of the Constitution of India.

3. I have heard the learned counsel on either side and perused the records carefully.

4. At the outset, the learned counsel for the respondent raised a preliminary objection in respect of the maintainability of this revision. According to him, an order made under Section 24 of The Hindu Marriage Act, 1955 [hereinafter referred to as "The HM Act"], is appealable under Section 28 of The HM Act and, therefore, the present revision is not maintainable. In support of his contention, the learned counsel for the respondent has relied on a number of judgments of various High Courts about which I would make reference hereinbelow.

5. Contrary to that, the contention of the learned counsel for the petitioner is that as against an order made under Section 24 of The HM Act, either allowing or dismissing an application for maintenance pendente lite, there is no appeal remedy available under Section 28 of The HM Act. According to him, there is conscious omission of an order made under Section 24 of The HM Act in sub-section (2) of 28 of The HM Act.

6. Since an objection regarding the maintainability has been raised, I deem it appropriate to deal with the same, at the first instance. Section 28 of The HM Act, upon which much reliance has been placed by the learned counsel for the respondent, deals with decrees and orders against which appeals would lie. The said provision reads as follows :-

28. Appeals from decrees and orders. - (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub- section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding 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) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.

7. A plain and comparative reading of sub-section (1) and (2) of Section 28 of The HM Act would make it apparent that sub-section (1) provides for appeals against decrees, whereas sub-section (2) provides for appeals against orders. Under Sections 9, 10, 11, 12, 13, 13(A) and 13(B) of The HM Act, a civil court has been empowered to pass a decree of the nature envisaged in the respective provision. Under Sections 24, 25 & 26, a civil court has been empowered to pass orders. Thus, in respect of any decree passed under any of the provisions under Sections 9, 10, 11, 12, 13, 13 (A) and 13(B) of The HM Act, the aggrieved has got right of appeal under Section