VERA ARANHA Vs. JACOB HARLAD ARANHA

JUDGEMENT

(1.) This Appeal has been placed before us upon a reference made by Daud, J. made on 13th March, 1987. The facts giving rise to this reference are as under :-

(2.) The appellant, who is the wife of the respondent to this appeal, instituted M.J. Petition No. 714 of 1977 for divorce on the grounds that the respondent husband was guilty of adultery and cruelty. The parties are Indian Christians and are governed by the Indian Divorce Act (hereinafter referred to as the "Act"). During the pendency of the M.J. Petition No. 714, the appellant made a petition viz., No. 77 of 1982 for alimony pendente lite under S.36 of the Act. On 25th January, 1983, the Bombay City Civil Court, where M.J. Petition No. 714 of 1977 was sent for trial and disposal, made an order awarding a sum of Rs. 100/- to the appellant as interim alimony. On 28th January 1983, the same Court allowed a sum of Rs. 750/- towards the expenses to prosecute the petition. On the same day, M.J. Petition No. 714 of 1977 was disposed of by a decree of divorce in favour of the appellant. In this appeal, the order of the Bombay City Civil Court dated 25th January, 1983 awarding interim alimony of Rs. 100/- p.m. is impugned. This first appeal was filed on 21st March, 1983. An appeal by the respondent challenging the decree of divorce is pending in this Court. The petitioner appellant claims that the amount of Rs. 100/- is not comensurate with the income of the respondent.

(3.) When the appeal was called out for hearing before Daud, J, the respondent urged that in view of S.55 of the Act and the judgement by a single Judge of this Court in Prithvirajsinghji v. Bai Shiva Prabhakumari, AIR 1960 Bom 315 the order granting interim alimony was not appealable. On consideration of S.28, Hindu Marriage Act, as it then stood, and which is pari materia with S.55 of the Act, Gokhale, J. held that the appeal against an order of interim alimony was not maintainable. In Lallubhai v. Nirmalaben AIR 1972 Guj 174 a contrary view was taken and it was held that the order of interim alimony was appealable. Daud, J, who was inclined to accept the view of the Gujarat High Court, found it difficult to do so in view of the judgement delivered by Gokhale, J. He, therefore, referred this appeal to the Division Bench by his order dated 13th March, 1987.