TARANI KUMAR GAUTAM Vs. DISTRICT JUDGE MATHURA

JUDGEMENT

(1.) THIS is a husband's petition for the issue of a writ of certiorari to quash the order dated the 9th April, 1979 of the court of the Civil Judge, Mathura, directing the Petitioner to pay the sum of Rs. 1200/ -for litigation expenses and Rs. 1500/ - per month as maintenance allowance to his wife on an application 10C made by her Under Section 24 of the Hindu Marriage Act in a suit, being Suit No. 15 of 1975 in that court, by the Petitioner for restitution of conjugal rights Under Section 9 of the Hindu Marriage Act against his wife who has been impleaded as the third Respondent to the writ petition. The court of the District Judge Mathura, who has been impleaded as the first Respondent, refused, by his order dated the 22nd April, 1980 to entertain an appeal from the aforesaid order, as not maintainable, and also refused the prayer for the conversion of the said appeal into, or hearing it as a revision Under Section 115 of the Code of Civil Procedure. That order has also been sought to be quashed. Undaunted, the Petitioner preferred a civil revision Under Section 115 of the Code of Civil Procedure in the court of the District Judge from the very same order of the court of the Civil Judge, being Civil Revision No. 162 of 1981. Despite the rejection of the appeal as not maintainable and refusal to hear it as a revision, or to allow it to be converted into a civil revision by the District Judge's order dated the 22nd April, 1980, the Third Additional District Judge, Mathura, appears to have condoned the delay in filing the revision by an order dated the 3rd August, 1981, Under Sections 5 and 14 of the Limitation Act. But the District Judge, Mathura, who ultimately heard the revision, dismissed it by an order dated the 22nd September, 1981, as not maintainable. The Petitioner has sought the quashing of this order also. It is now well settled that Under Section 28 of the Hindu Marriage Act, as it now stands amended by the Marriage Laws (Amendment) Act, 1976, an order passed Under Section 24 is not appealable. Apart from the decrees passed under the Act which are made appealable under Sub -section (1) of Section 28, only orders passed Under Section 25 or Section 26 of the Act have been made appealable by Sub -section (2) of Section 28. It is also well settled by the decisions of this Court that an order Under Section 24 is an interim order passed summarily, without deciding the rights of the parties: first, to enable an indigent spouse to prosecute or defend a proceeding under the Act by an order directing the other spouse, if he or she has the means to pay to the indigent spouse the necessary expenses of the proceedings, and secondly to enable the indigent spouse to live through the proceedings by an order directing the other spouse, if he or she has the means, to pay a reasonable sum monthly during the proceedings for the support of the indigent spouse. That being so, it has also been held by this Court that an occasion to interfere on a revision under Section 115 of the Code of Civil Procedure, even where the order suffers from some jurisdictional defect, could arise only if the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made, and such occasions would be rare indeed.

(2.) PRIMA facie, therefore, the procedural hurdles in the way of the Petitioner in this Court appeared at first sight to be insurmountable, but when I looked at the impugned order of the learned Civil Judge and the reasons given, therefore, I felt that it was one of these cases in which a part of the amount of maintenance pendent lite ordered to be paid by the Petitioner -husband to the Respondent -wife could not be supported Under Section 24 of the Hindu Marriage Act at all and that part of the order which purported to award maintenance for education expenses of the two daughters of the parties, who were living with the wife, through her, could be based only in Section 26 of the Act, and if that were so, that part of the order was clearly appealable Under Section 28(2). The appeal was treated as an appeal from an order Under Section 24 simpliciter and rejected as not maintainable. In the result, it could be said that the learned District Judge refused to exercise the jurisdiction which he had of considering the order passed by the learned Civil Judge on the appeal which was filed by the Petitioner. The subsequent attempt by the Petitioner of approaching the learned District Judge Under Section 115 of the Code of Civil Procedure, may have been a futile attempt, but the fact remains that the Petitioner could well say that the learned District Judge shut him off and did not hear his appeal on a wrong view of the law about his jurisdiction. In this view of the case, the only remedy available to the Petitioner was to approach this Court under Article 226/227 of the Constitution for correcting the error committed by the learned District Judge by refusing to exercise the jurisdiction of entertaining and hearing the appeal from that part of the order which granted maintenance for educational expenses of the two daughters as part of the maintenance allowed to the wife.

(3.) I could have, in this view of the matter, quashed the two orders of the learned District Judge and directed him to rehear the appeal which was dismissed as not maintainable by his first order dated the 22nd April, 1980. But having perused the impugned order of the learned Civil Judge, and keeping in view the paramount necessity of deciding matrimonial cases as speedily as possible, I thought it desirable, in the interest of justice, to hear counsel on the merits of the matter and to dispose of the summary proceedings Under Section 24 so that the main case for restitution of conjugal rights Under Section 9 is proceeded with and heard and decided at the earliest, rather than stalled by the kind of dilatory and fruitless proceedings which have been indulged in so far by the parties only to spite each other, aided, of course by ingenuity of counsel from both the sides, of which there appears to have been no dearth.