SUNDER SINGH Vs. MANNA SUNDER SINGH

JUDGEMENT

(1.) THIS appeal arises out of an unfortunate litigation between a husband and his wife. Mrs. Munna Sunder Singh wife of Shri Bawa Sunder Singh filed an application for judicial separation against her husband under Sec. 10 of the Hindu Marriage act, 1955, in the Court of the learned District Judge at Delhi. She also moved an application for maintenance pendente lite and for expenses of the proceedings under Section 24 of the Hindu Marriage Act 1955. She claimed that her husband should be ordered to pay her a sum of Rs. 3,000/- for expenses of the proceedings and a sum of Rs. 2,500/- per mensem for her maintenance during the pendency of the proceedings. In this application the alleged that her husband was a rich man having property worth several lacs and deriving monthly income of not less than rs. 15,000/- from various sources. She also alleged that she herself had no source of income and owned no movable or immovable property except share scrips valued at about Rs. 90,000/-, which were in the possession of her husband and which could not be availed of by her at the moment. This application was opposed by her husband Shri Bawa Sunder Singh, who repudiated her claim in its entirety. In his reply he stated that it was false to suggest that his monthly income was Rs. 15,000/- or that he owned property to the extent alleged by the petitioner. He himself, however, did not give any idea either of the value of property owned by him or of the income earned by him every month. He alleged that the petitioner had sold certain shares of the value of rs. 96,000/- some two years before the petition and that she was in possession of the said amount. He further alleged that there was jewellery in her possession worth rupees three lacs and that she was the daughter of a wealthy person who was supporting her in her "frivolous litigation" and was in a position to support her. He also alleged that she was having an income of Rs. 500 per mensem in her capacity as a director of a company. The petitioner then filed replication denying the sale of the shares worth Rs. 96,000 as also the fact of the jewellery worth rupees three lacs being in her possession. She repudiated the suggestion that her parents were supporting her in the litigation and denied that she was earning Rs. 500 as a director. She at the same time filed an application under section 151 of the Civil Procedure Code requesting the Court to order the respondent to make specific denials or admissions with regard to the extent of his property, as also of the monthly income, and stated in that application that the reply filed by the respondent was absolutely vague and that the respondent had evaded to give clear facts. A reply to this application was filed by Shri Bawa Sunder Singh who, along with it, filed a sworn affidavit dated the 9th of December, 1960. It is rather curious that in this reply or affidavit also the respondent did not give a very clear position about the extent of his property or his income and did not make a clear denial that his monthly income was not Rs. 15,000/- that he did not posses property worth several lacs. The affidavit, referred to above, consists of five pages but the respondent has not chosen to state anywhere in this affidavit what sources of income he had and what monthly income he was making from each of these sources. In paragraph 12 of the same he has admitted that he was a partner of Messers Spedding Dinga Singh and Company, which was doing timber business, but has stated that the said business had made no profit for the last many years. He has also stated that neither the firm nor he were paying any income-tax for the last several years. With regard to the property or wealth that he possessed, he has simply stated that the figures given by his wife were highly exaggerated. The petitioner filed another affidavit on 5th of January. 1961, in reply to that of her husband and in this affidavit she stated with clarity the various sources of income which the respondent had and the earnings that he was having from the same. Along with it she filed annexure 'a' giving the details of her husband's wealth and wealth tax figures. The respondent asked for an opportunity of filing an affidavit in reply to the affidavit of his wife dated 5th January, 1961,but he chose not to file the same. The learned District Judge went into the matter and by his order dated 25th of January, 1961, he came to the conclusion that the petitioner was entitled to Rs. 3,000 as expenses of litigation and was also entitled to a maintenance allowance of Rs. 2,500 per mensem for as long as the litigation lasted. In this order he found that the petitioner had never sold the shares worth rs. 96,000/-, and did not, therefore, possess the said amount. He also found that she was not possessed of jewellery as alleged by her husband and that she was not getting any income from the Directorship of Messrs Bawa Timber Private limited. It was not contested before the learned Additional District judge that the father of the petitioner was a wealthy gentleman, but he came to the conclusion that this matter was of no consequence at all in deciding whether the petitioner was or was not entitled to the relief under section 24 of the Hindu Marriage Act. Aggrieved against the aforesaid decision of the learned Additional District Judge the respondent, Shri Bawa Sunder Singh, has come up to this Court in first appeal.

(2.) A preliminary objection is taken on behalf of the respondent that no appeal lies against the order in question. It is contended that an order under section 24 of the hindu Marriage Act cannot be deemed to be a decree as defined in section 2 (2) of the Civil Procedure Code and cannot be appealed against as such. It is further contended that such an order does not also fall within the category of any of the appealable orders which are mentioned in detail in section 104 and Order 43, rule1 of the Civil Procedure Code. Reliance for this proposition is placed on a Single bench judgment of the Bombay High Court in Prithyirajsingji Mansinghji v. Shivaprabha Kumari, AIR 1960 Bom 315. There a petition for revision had been filed against an order of a Subordinate Judge made under section 24 of the Hindu marriage Act. At the hearing a preliminary objection was taken that the order was appealable under section 28 of the said Act and that the petition for revision, therefore, was not maintainable. This preliminary objection was repelled by gokhale J. who decided that case and it was held that-" what the Legislature intended by referring to the words 'any law for the time being in force in section 28 was that the appealiability of decrees and orders should be determined by the provisions of the Code of Civil procedure. Thus section 28 does not provide for an appeal against every order made by the Court in the proceedings under the Act, but only such orders which can fall within the definition of decrees under section 2 (2)of the Civil Procedure Code or with regard to which an appeal is provided under the Code An order granting interim relief under section 24 has to be distinguished from an order granting permanent alimony and maintenance, which the Court can pass under section25. Such an order cannot amount to a decree as defined in section 2 (2) of the Civil procedure Code and, therefore would not be appealable as decree, such an order does not fall also within section 104 nor under Order 43, rule 1 of the Code. It would not be therefore, appealable under the Civil procedure Code. Hence revision application will be maintainable against such order. " two Single Bench rulings of the Lahore High Court in R. C. Chamarette v. Mrs. P. E. Chamarette, AIR 1937 Lah 176, and Noble Millicons v. Mrs. Gladys Millicans, air 1937 Lah 862, were cited on behalf of the respondent in that case but they were not relied upon.

(3.) THE counsel for the appellent urges that the order in question is an appealable one by reason of section 28 of the Hindu Marriage Act and for this proposition he places reliance on a Division Bench ruling of the Calcutta High Court in Smt. Sobhana Sen v. Amar Kanta Sen, AIR 1959 Cal 455, and a Single Bench judgment of the Madhya Pradesh High Court in Rukhmambai v. Kishanlal Ramlal, AIR 1959 madh Pra 187. Both these cases are direct authorities on the point and do support the contention of the learned counsel. Reliance is also placed by him on the two lahore ruling, referred to above, which also support his contention. Language of section 55 of the Divorce Act, under which those rulings were given, and that of section 28 of the Hindu Marriage Act is identically the same.