SHUBRA BAGCHI Vs. P K BAGCHI

JUDGEMENT

(1.) THE present reference to the Full Bench was necessitated by a preliminary objection taken by the counsel for the respondent before a Division Bench of this court which heard the appeal that the present appeal was not maintainable and did not lie under S. 28 of the Hindu Marriage Act (hereinafter referred to as the Act). Reliance was placed by the counsel for the respondent on an earlier Division Bench decision of this court in Mohan Rani V. Mohan Lai. A.I.R. 1965 J&K 88. The Division Bench which has made the reference to the Full Bench was of the opinion that the Division Bench decision (Supra) required reconsideration in the light of later decision of other High Courts in India and accordingly the point that has been referred to us is as follows : - "Whether an order passed by the District Judge under S. 24 of the Act refusing alimony and litigation expenses and as a consequence thereof closing the evidence of the appellant is appealable to the High Court." It appears that the respondent, P. K. Bagchi, the then Sr. Superintendent of Post Offices, Kashmir division, filed a suit praying for a decree for judicial separation and custody of the minor child against the appellant Mrs. Shubra Bagchi before the District Judge Srinagar on various grounds. When the suit proceeded to hearing the appellant made an application before the court for grant of temporary alimony and litigation expenses. The court below by its order dated 18 -3 -72 ordered that Rs. 2000/ - out of the amount deposited by the petitioner may be paid as alimony and Rs. 500/ - as litigation expenses. This order was passed presumably on the assumption that the application would be decided soon. Unfortunately more than two and a half years have passed and the case has not yet come, to a close. The appellant was asked to produce her evidence and she made an application before the court below that since the proceedings had continued for a period of three years, a fresh amount of litigation expenses So as to enable her to summon witnesses may be directed to be deposited by the respondent husband. No specific order was passed on this application but by virtue of order dated 8 -10 -73 the District Judge rejected the application on the ground that the litigation expenses had already been ordered to be deposited and since the appellant had not produced her evidence, the court closed her evidence. This led to an appeal before the Division Bench which has now referred the question formulated above to the Full Bench.

(2.) IN this case we are not concerned with the merits of the case of the parties which shall have to be gone into by the Division Bench after the reference has been answered and the case is sent back. We have, however, to decide whether the present appeal is maintainable under S. 28 of the Act, or, in other words, whether or not an order passed under S. 24 or for that matter the order closing the evidence of the appellant is appealable under S. 28 of the Act. As before the Division bench, so also before us, the learned counsel for the respondent has relied on a Division Bench decision of this court in AIR 1965 J & K 88 (Supra) and has submitted that this decision lays down the correct law. On the other hand counsel for the appellant has cited a large catena of authorities taking a contrary view and holding that an order under the Act, more particularly under S. 24 is appealable. Before dealing with the Division Bench decision whose correctness or validity we are called upon to decide, it may be necessary to extract the section and the authorities on which the D. B. decision was based. S. 28 of the Act runs thus : -

(3.) IN order to interpret the provisions of S. 28 it will be necessary to examine the scheme and purport of the relevant provisions of the section which is necessary for a decision of the issues before us. It will be seen that the various provisions of the section make a clear distinction between decrees and orders. It is obvious that a decision given on an application under Ss. 9, 10, 12 and 13 would not amount to a decree as envisaged by the provisions of the Civil P.C. but by the statutory force of the Act the decision becomes a decree which is appealable. Thus we find that in Ss. 9, 10, 12, 13, 15, 23 and 27 the statute conspicuously uses the word Ëœdecreeâ„¢ in relation to an application for restitution of conjugal rights, judicial separation, divorce or a declaration of nullity of marriage. Vide the words in S. 9(1) of the Act may decree restitution of conjugal rights accordingly. In S. 10 the words Ëœpraying for a decree for judicial separation.â„¢ In S. 12 the words may be annulled by a decree of nullity". In S. 13 the words "be dissolved by a decree of divorce." In S. 15 the words Ëœwhen a marriage has been dissolved by a decree of divorce." In S. 23(e) the words Ëœthe court shall grant such relief accordingly" and in S. 27 the words Ëœthe court may make such provisions in the decree as it deems just and proper." On the other hand in Ss. 24, 25 and 26 of the Act which relates to maintenance, alimony and custody of children the statute contemplates only orders and not decrees being passed. For instance in S. 24 the relevant provision runs thus: "It may on the application of the wife or the husband, order the respondent to pay to the petitioner." In S. 25 the words run thus : "It may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. Similarly in S. 26 the relevant provisions is as follows : "make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children." Thus it is manifest that the statute contemplates two kinds of proceedings : (1) that culminate in a decree, and (2) that culminate in an order which may be more or less of an interim or an interlocutory type, but at the same time S. 28 makes both the decrees and orders enforceable and appealable. We are not concerned with the first part of S. 28 relating to the enforceability of appeals but with the second part of that section which relates to appeals. The words Ëœmay be appealed from under any law for the time being in forte clearly contemplate two things. First, that the statute confers the right of appeal against an order or decree in the proceedings under the Act, but the forum and the procedure for the appeal is to be determined by the concerned law, whether it is the Civil P.C. or any other law. In fact S. 28 has to be read with S. 21 of the Act which runs thus: - "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Civil P.C. 1908 (Act 5 of 1908)." S. 21 clearly provides that all proceedings under the Act shall be regulated in accordance with the Civil P.C. unless there are provisions to the contrary in the Act. So far as the right of appeal is concerned, S. 28 contains a clear and specific provision which confers a right of appeal to the aggrieved party against any order or decree in any proceeding under the Act. In these circumstances, therefore, in so far as the conferment of the appellate power which is the creature of the statute is concerned, it is expressly provided for in the second part of S, 28. The forum of appeal, the procedure and the manner in which an appeal is to be entertained or. heard is left to the concerned law which means the Civil P.C. by force or S. 21 of the Act (Supra). In these circumstances we have no hesitation in holding that whatever be the complicated consequence of our interpretation the language of the second part of S. 28 is clear enough to indicate that a right of appeal is expressly conferred against the decrees and orders mentioned therein and there is no justification for putting a narrower interpretation merely to avoid multiplicity of proceedings. Our conclusion is further reinforced by the existence of the proviso to S. 28 which clearly provides that there shall be no appeal on the subject of costs only. This proviso therefore envisages the existence of the right of appeal which has been curbed by it. In other words if there is no right of appeal, the question of placing any limitation on such a right would not arise and therefore the proviso would become redundant if we hold that the second part of S. 28 does not contain or confer any right of appeal. Secondly the Act is a completely self -contained statute and provides for a decree in certain cases and orders in others. It is not reasonable to infer that being a completely self -contained statute, it would leave the right of appeal to the mercy of some other statute. Furthermore it seems to us that the act has revolutionised the ancient Hindu Law and conferred new rights and liabilities on Hindu spouses and the various orders and decrees passed in the proceedings under the Act are matters of moment and therefore it could not have been the intention of the legislature to give a stamp of complete finality to the interim orders passed under the Act, even though some of those orders may touch the Civil rights of the parties, for instance the right to claim alimony, litigation expenses or even custody of the children. The legislature was aware that a civil revision against an order of the District Judge was not maintainable in such cases and in its wisdom it thought that that the best thing was to make all decrees and orders appealable in accordance with the forum laid down by the Civil P.C. Thus it seems to us that the intention was to equate decrees with interim orders, so far as the matter of appeals or for that matter their enforceability was concerned. We are fortified in our view by a large catena of decisions to which we shall now refer. In Harilal V. Lilavati, AIR 1961 Gujrat 202, 204 a Division Bench of the Gujarat High Court observed as follows: - "The right of appeal is a statutory right. In order that a party may have a right of appeal, that right has to be conferred by legislation. If the words used in S. 28â„¢ may be appealed from under any law for the time being in force" mean that an appeal would only lie in those cases where some other law lays down that such appeal can be preferred, then the result would be that we would have to look to the provisions of the Civil P.C. in order to consider whether any appeal is provided under the Code in respect of decrees and orders passed under the H.M. Act, 1955. No other law is pointed out which confers any right of appeal." X X X X X "The orders passed under Ss. 24, 25 and 26 of the Act are not orders falling within S. 104 and O.43 R. 1 of the Civil P.C. If this interpretation is accepted, the result would be that there would not be any decree or any order under any of the aforesaid sections which would be appealable. This could not possibly be the intention of the legislature. The section is intended to deal inter alia with the subject of appeals from decrees and orders passed under the Act. If there was no law under which an appeal would lie from any decree or order passed under the Act, the provision in that connection would be futile and devoid of meaning. By this Act the legislature has conferred special rights and has provided special remedies." X X X X X "It seems to us that the legislature intended to confer a right of appeal by the provisions of S. 28 itself by using the words "All decrees any orders made by the Act in any proceeding under this Act........may be appealed from.........." and that any intention of the legislature was not to refer parties to any other enactment for the purpose of ascertaining whether the decrees or orders passed under the Act were appealable or not. Having regard to the Language used by the legislature which, we are painfully conscious is not very apt, some meaning has to be given to the words Ëœunder any law for the time being in force.â„¢ Those words, on a true construction of the Act, are intended to provide for the forum before which the appeal is to be preferred. They may well relate to the procedure in connection with the appeals which may be filed under S. 28." This view was reiterated in another Division Bench of the same High Court in Umiyabhen V. Ambalal, AIR 1966 Gujarat 139, 144 -145 wherein their Lordships observed as follows: - ËœIf the words Ëœdecrees and orders made by the courtâ„¢ include not only original decree and orders but also appellate decrees and orders, it is clear that the provision enacted in the second part of S. 28 makes such decrees and orders appealable. It has already been held by this court in AIR 1961 Guj. 202 that S. 28 itself confers a right of appeal by using the words Ëœmay be appealed from Ëœ and a right of appeal against an appellate decree or order made by the court in any proceeding under the Act is therefore clearly provided by the section." X X X X X "The section undoubtedly confers a right of appeal by using the words Ëœmay be appealed fromâ„¢ but that right of appeal is to be exercised Ëœunder any law for the time being in force.â„¢ The procedure for filing the appeal and the jurisdiction and powers of the court in dealing with the appeal are governed by the law for the time being in force which would include inter alia the Civil P. C. X X X X X "We may amplify this statement by saying that these words provide not only the procedure for filing the appeal and the forum in which the appeal must be filed but also the jurisdiction and power of the court in dealing with the appeal, so filed. The right of appeal is conferred by the section but the nature and extent of the right of appeal which depend on the procedure, jurisdiction and power of the court in dealing with the appeal are governed by the law for the time being in force which includes inter alia the code." A similar view was taken by a Division Bench of the Allahabad High Court in Sarla Devi V. Balwant Singh, AIR 1969 All. 601, 602 wherein the following observations were made : - "A right of appeal is a substantive right and is not a mere matter of procedure. The use of the words Ëœshall be regulated as far as may be, by the Civil P.C. 1908â„¢ in S. 21 of the Act clearly indicate that it is the procedure only which is to be regulated by the Civil P. C. S. 28 of the Act confers an unqualified right of appeal. The words used Ëœand may be appealed fromâ„¢ in S. 28 of the Act clearly give a person aggrieved the right to file an appeal. In our opinion, therefore, an order passed under S. 24 of the Act is appealable at the instance of a party aggrieved." The MP High Court in Rukhamanibai V. Kishanlal, AIR 1959 MP 187 observed as follows ; - S. 28 of the Act has been enacted with the intention of giving a right of appeal. If the right of appeal is to be inferred from the provision of any other law, the section so far as it relates to appeal would be meaningless and the words underlined would be superflous. It cannot be accepted that a right of appeal from orders which are passed under specific provisions of the Act should be provided for in any other law." In this case Shrivastava J. held that S. 28 clearly conferred a substantive right of appeal against an order passed under S. 24 of the Act. To the same effect is a Division Bench decision of the Calcutta High Court in Smt. Sobhana V. Amar Kanta, AIR 1959 Cal. 455, 457 wherein their Lordships observed as follows : - "On consideration of all these, I have come to the conclusion that the intention of the legislature in a proceeding under the act shall be appealable and that the words Ëœunder any law for the time being in forceâ„¢ were added to indicate that the forum where the appeal would lie, viz, to the D.J. or to the High Court, and such other matters as regards procedure for the hearing of the appeals would be decided by the law on the subject for the time being in force," There are two Full Bench decisions which have also affirmed the view that orders passed under S. 24 are appealable S .28 which confers a right of appeal. In Kumtumba Rao V. Sesharatamamba, AIR 1967 A.P. 323, 331 their lorships of the full Bench pointed out as follows : - ËœBe that what it may, it is clear from our discussion that the expression Ëœunder any law for the time being in forceâ„¢ must be referable not to the substantive right of appeal which is conferred by S. 28 itself in relation to all decrees and orders specified as such in the relevant provisions of the Act; viz, Ss. 9 to 13 and Ss. 24 to 27, but to the procedure, forum and other relevant matters for the enforcement of the right of appeal......... "It is this interpretation which ought to be preferred to the other interpretation sought to be put as it, removes absurdity, repugnancy and inconsistency which the other interpretation gives rise to and further gives effect to the intention of the legislature apparent from the statute without straining or doing violence to the language used and by putting that construction as the words employed admit of." X X X X X "We are of the view that S. 28 by itself gives the right of appeal and the enforcement thereof is made subject to the laws in force relevant thereto. That is what is contemplated by the second part of S. 28 of the Act." Similarly in Paras Ram V. Janki Bhai, AIR 1961 All. 395, 396, the Full Bench observed as follows : - "S. 28 lays down that anâ„¢ order made by the court in any proceeding under the Act Ëœmay be appealed from under any law for the time being in force.â„¢ The court of a Civil Judge in the state is created under the Bengal, Assam and Agra Civil Courts Act. 1887. S. 21 of the Act lays down that an appeal from an order of a civil judge shall lie to (a) the District Judge where the value of the original suit in which......the order was made does not exceed ten thousand rupees and (b) the High Court in any other case." It is true that in this case the point was not fully discussed ; but the clear and unequivocal view expressed by the Full Bench no doubt fortifies the view that we have taken in this case. There is another Division Bench decision of the Bombay High Court in MT Ghisad V. Malti AIR 1973 Bom. 141 which has taken the same view after over -ruling its previous decision in Prithiviraj Singhji Vs. Bai Shivprabha kumari, AIR 1960 Bom. 315 which was relied upon by the Division Bench decision of this court in AIR 1965 J&K 88 (Supra). In this connection their Lordships of the Bombay High Court observed as follows : - "We have heard the counsel for the parties at considerable length and on a proper construction of provisions of S. 28 of the Act we are inclined to take the view that the right of appeal against a decree or an order made in a proceeding under the Act is given by the provisions of S. 28 itself." X X X X X "In our view a right of appeal against decrees and orders passed under this Act is given by the provisions of S. 28 itself. There has to be some law to which one can look for the purpose of deciding the forum where an appeal can be filed. The Civil P.C. does not provide for forum though it may provide for the procedure to be adopted while deciding the appeal." X X X X X "It also appears to us that the legislature having given a right of appeal in S. 28 it also provided in the latter part of that section for the procedure for filing the appeal and the forum for the appeal as also the jurisdiction and power of the court in dealing with the appeal filed, by enacting the latter part of S. 28 using the words Ëœunder any law for the time being in force." X X X X X "Since S. 28 is a self contained provision regarding the right of appeal the forum for and the procedure applicable to such an appeal, we are not inclined to agree with the observations made in Prethvirajsinghjiâ„¢s case, AIR 1960 Bom. 315 that having made a reference in S, 21 of the Act to the Civil P.C. accepting the argument of the opponents counsel in that case, would mean that the legislature again emphasised in S. 28 that the procedure governing the appeal would be that under the Civil P.C. which the legislature did not intend to do." X X X X X "We may also usefully refer the provisions of the proviso to S. 28. The proviso provides that no appeal shall lie on the subject of costs only. It is now well settled that a proviso deals with a topic which would, but for the proviso, have fallen into the main provisions of the section. The proviso to S. 28 also indicates that the legislature intended to carve out certain orders in respect of which no right of appeal was given. If the effect of the proviso is that no right of appeal was to be given in respect of the subject of costs, then construing the proviso and the main section together it must be held that if the proviso was not there a right of appeal could be exercised even in respect of an order with regard to costs. This could only be done if the substantive provision in S. 28 itself gave a right of appeal." ËœIn enacting the proviso to S. 28 the intention of the legislature was that an order ¢with regard to costs was not to be the subject matter of an appeal. The proviso also, therefore, indicates to us that S. 28 gives a substantive right of appeal in respect of decrees or orders passed under the Act" (See pp. 143 -146 of the Reports). A Division Bench of the Patna High Court was also of the same view in Suresh Prasad V. Manarama Debi, AIR 1973 Patna 321, 325 wherein their Lordships observed as follows: - "Having regard to the discussion made above, I am of the opinion that all decrees and orders passed in a proceeding under the H.M. Act are appealable by virtue of the provisions of S. 28 itself. The words Ëœmay be appealed from under any law for the time being in forceâ„¢ have to be understood as meaning that although the right of appeal is derived from this section itself, so far as the procedural aspect of the appeal is concerned, it will be governed by the Civil P.C. 1908, and the Rules prescribed for matters relating to the Act by the respective High Courts, in this case the Civil court Rules of the High Court of Judicature of Patna (Civil). Since an appeal lies against the impugned order, the petition in revision is not maintainable. It has therefore to be dismissed." In paragraph 14 however the DB observed as follows: - "I may, in passing, observe that the appealable orders are only those which have been made by a court in any proceeding under the Act and not all orders having connection with any proceeding under the Act. In other words, only such orders are appealable which have been passed under Sa 24 to 27 of the Act." We, however, find ourselves Ëœunable to agree with the view expressed by their Lordships in para 14 of the judgment. (Supra). The distinction made by their Lordships between orders passed in any proceeding under the Act appears to be, with due respect, a distinction without any difference. An order passed under the provisions of the Act, whether under Ss. 24, 25 or 26 would undoubtedly be an order in the proceeding under the Act and therefore the said distinction made by their Lordships appears to be purely artificial and illusory. Furthermore, the interpretation is not borne out by the clear language of S. 28 which does not distinguish the kind of orders passed under the Act and makes all kinds of orders passed under the Act appealable. With due deference, therefore, we express our respectful dissent from the view expressed by their Lordships in para 14 (Supra). On the other point, however, the decision fully supports our view that an appeal against an order under S. 24 lies under S, 28 of the Act.