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1977 DIGILAW 20 (HP)

NARAIN SINGH v. RUKMANI

1977-06-15

R.S.PATHAK, T.U.MEHTA

body1977
JUDGEMENT R. S. Pathak, C. J.:- This appeal is directed against an order of the learn­ed District Judge, Solan Division, award­ing litigation expenses and maintenance pendente-lite to the wife for the dura­tion of a petition by the wife under Section 10 of the Hindu Marriage Act. 2. During the pendency of the peti­tion under S. 10 of the Hindu Marriage Act, the wife applied under S. 24 of the Act for an order directing the husband to pay her maintenance and litigation expenses. On April 7, 1977, the learned District Judge, Solan Division made an order awarding Rs. 150/- as litigation expenses and Rs. 30/- per month as maintenance pendente lite. 3. Shri Inder Singh, learned counsel for the appellant, has very fairly pointed out that it is doubtful whether the appeal is maintainable in view of the changed state of law. Having considered the matter, we are of opinion that the appeal must be rejected as incompetent. Until 1976, S. 28 of the Hindu Marriage Act provided: "28. Enforcement of, and appeal from, decrees and orders. All decrees and orders made by Court in any proceeding under this Act shall be enforced in like manner as the decrees and order of the Court made in the exercise of the original Civil jurisdiction are enforced, and may be appealed from under any law for the time being in force: Provided that there shall be no appeal on the subject of costs only." This provision was construed by this Court in Smt. Taranjit Kohli v. Gurbaksh Singh Kohli, ILR (1975) Him Pra 663, to include an appeal against an order under S. 24 of the Act. Subsequently, by the Marriage Laws (Amendment) Act, 1976, S. 28 was substituted by a new provision which reads as follows:- "28. Appeals from decrees and orders- (1) All decrees made by the Court in any proceeding under this Act shall, sub­ject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordi­narily lie from the decisions of the court given in the exercise of its original civil jurisdiction. (2) Orders made by the Court in any proceeding under this Act, under S. 25 or S. 26 shall, subject to the provisions of sub-s. (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its ori­ginal civil jurisdiction. (3) There shall be no appeal under this Section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order." It is apparent that an appeal is now provided against decrees passed under the Hindu Marriage Act and against those orders only which are made under S. 25 and S. 26 of the Act (provided they are not interim orders). A comparison of the new S. 28 with the original S. 28 shows that no appeal is contemplated under the amended law against an order under S. 24. What has not been expressly included in the new S. 28 must be im­plied to have been excluded. Therefore, having regard to the new S. 28, no ap­peal lies now against an order under S. 24. Now, it is true that the application under S. 24 was made before the amend­ment was brought in. But S. 39 (1) (i) of the Marriage Laws (Amendment) Act, 1976 declares that all petitions and pro­ceedings in causes and matters matri­monial which are pending in any court at the commencement of the Amendment Act shall be dealt with and decided by such court, if it is a petition or proceed­ing under the Hindu Marriage Act, then, so far as may be, as if it had been ori­ginally instituted therein under the Hindu Marriage Act, as amended under this Act. Accordingly, the appeal filed by the appellant must now be considered in the light of the amended S. 28 of the Hindu Marriage Act. That being so, on the view taken by us, no appeal lies. 4. We are supported in our opinion by what has been laid down in Smt. Satish Bindra v. Surjit Singh Bindra 79 Pun LR 384 : (AIR 1977 Punj 383) and Gurbaksh Singh v. Taranjit Kohli FAO, No. 7 of 1977 decided by C. R. Thakur, J. on May 31, 1977: (reported in AIR 1977 Him Pra 66). 5. 4. We are supported in our opinion by what has been laid down in Smt. Satish Bindra v. Surjit Singh Bindra 79 Pun LR 384 : (AIR 1977 Punj 383) and Gurbaksh Singh v. Taranjit Kohli FAO, No. 7 of 1977 decided by C. R. Thakur, J. on May 31, 1977: (reported in AIR 1977 Him Pra 66). 5. The appeal is rejected as incom­petent. Appeal dismissed