JAYANTI Vs. KUNJABEHARI

JUDGEMENT

(1.) This appeal by the wife arises out of an order in a proceeding under S.9, Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').

(2.) Respondent filed an application for restitution of conjugal rights. The appellant disputed the application by filing a written statement and later filed an application for amendment of the written statement by incorporating counter-claim for maintenance at the rate of Rs. 300/- per month since the month of October, 1981. The total arrear claim was Rs. 6,900/- and the future claim was Rs. 18,000/- on which it was stated that court-fee payable was Rs. 2,009.25 paise. She was exempted from paying the court-fee under S.18-A of the Court-fees Act. The trial court dismissed the application for restitution of conjugal rights which being valued notionally at Rs. 100/-, appeal was preferred in the court of District Judge, Sambalpur registered as Title Appeal No. 14 of 1985 which is now pending. Trial court not having whispered a word about the counter-claim, the same was treated to have been refused and the wife filed the present appeal in this Court as the counter-claim was in respect of Rs. 24,900/- During pendency of this appeal, an application was filed for interim maintenance under S.24 of the Act which was registered as Misc. Case No. 633 of 1985. While considering the application it was considered reasonable to direct the spouses to appear in person for an attempt to get them reconciled. As the appellant could not appear on account of paucity of funds, the respondent was directed to pay Rs. 150/- to Mr. J.P. Misra, the learned counsel for the appellant, for the journey expenses of the appellant. Thus, both the parties appeared today and I took up the matter in my chamber. After the reconciliation failed, I had to hear the application under S.24 of the Act.

(3.) Mr. K. Patnaik submitted that a counter-claim of this nature is not maintainable in a proceeding under the Act. The appeal has been filed against the order of the trial court under S.28 of the Act. Such appeal is not maintainable. Power under S.24 of the Act can be exercised during pendency of proceeding under the Act. As the appeal cannot be maintainable under the Act, the application has no merit and the appeal should also be dismissed as not maintainable. Mr. J.P. Misra, the learned counsel for the appellant, submitted that the counter-claim was filed under S.23A of the Act and, therefore, the appeal is competent. He alternatively submitted that counter-claim in the written statement can be treated to be an application under S.25 of the Act for permanent alimony in respect of which order appeal lies. Since a preliminary objection relating to maintainability of the appeal was raised, I have considered the same with consent of both the parties.