BAWA SUNDER SINGH Vs. SHRIMATI 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 Section 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 she alleged that her husband was a rich man having property worth several lacs and deriving montly 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" ahd 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 compay. The Petitioner then filed replication denying the sale of the shares worth Rs. 96,000 as also the fact of the jewellary 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 Code of Civil Procedure 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 or that he did not possess 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 Messrs Spedding Dinga Singh arid 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 incpine-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 jewellary 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 Code of Civil Procedure 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, Rule 1 of the Code of Civil Procedure. Reliance for this proposition is placed on a Single Bench judgment of the Bombay High Court in Prithviraisinhji Mansinghji V. Bai Shivprabhakwnari and another,1960 AIR(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--

(3.) Two Single Bench rulings of the Lahore High Court in Robert Cameron Chamaretta V. Mrs. Phvllis Ethel Chamarette, 1937 AIR(Lah) 176 and Noble Millicans V. Mrs. Gladvs Millicans, 1937 AIR(Lah) 862 were cited on behalf of the Respondent in that case but they were not relied upon.