Court: Punjab-Haryana High Court
Equivalent citations: AIR 1962 P H 127
Bench: JUSTICE K Gosain
Sunder Singh vs Manna Sunder Singh on 28 July, 1961
Maintenance not based on Arthmetic Calculation
(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 104and 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 insection 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 24has to be distinguished from an order granting permanent alimony and maintenance, which the Court can pass under section 25. 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 55of the Divorce Act, under which those rulings were given, and that of section 28 of the Hindu Marriage Act is identically the same.
(4) Now section 28 of the Hindu Marriage Act reads as under:
“All decrees and orders made by the Court in any proceedings under this Act shall be enforced in like manner as the decrees and orders 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 cots only.”
The contention of the learned counsel for the respondent is that the words “under any law for the time being in force” clearly show that every order is not made appealable and that for the purpose of finding whether any particular order is or is not appealable, a reference has to be made to the Civil Procedure Code to find whether such an order is a decree as defined in the said Code to find whether such an order is a decree as defined in the said Code or whether such an order is expressly made appealable under any of the two provisions of the Civil Procedure Code in which such orders are mentioned, namely, section 104 and Order 43, rule 1. His argument is that unless an order is a decree or is expressly made appealable under any of the provisions of the Civil Procedure Code no appeal is competent against the same. AIR 1960 Bom 315, referred to above, no doubt supports this contention.
The argument of the learned counsel for the appellant, on the other hand, is that all decrees and orders made by a court in any proceedings under the Act are liable to be appealed against and that the words “under any law for the time being in force” can be interpreted only to mean that the appeal shall be made in accordance with the Procedure provided for such appeals in any law which relates to the said procedure. His argument is that an appeal lies under section 28 itself but that the procedure for that appeal is prescribed by the provisions of the Civil Procedure Code Calcutta and Madhya Pradesh authorities, quoted above, do support this contention.
(5) After giving my careful consideration to the matter I am of the opinion that the preliminary objection has no force and that the order in question can be appealed against under section 28 of the Hindu Marriage Act. It is difficult to conceive that the Legislature left the matter of maintainability of appeals on wholly uncertain grounds and that for finding whether a particular order under this Act was or was not appealable the Legislature intended to leave the parties to have recourse to the provisions of other laws. The proviso to the section that there shall be no appeal on the subject of costs only shows that the Legislature intended that all other orders (which, of course, mean the final orders) would be appealable and it is only an order on the subject of costs which would be non-appealable. This proviso shows that the entire law with regard to the maintainability of the appeals under this Act is contained in section 28 of the Hindu Marriage Act. With great respect, I prefer to agree with the view taken by the Division Bench of the Calcutta High Court and the Single Bench of the Madhya Pradesh High Court in the rulings quoted above and hold that an order under section 24 of the Hindu Marriage Act is appealable under section 28 of the said Act. The preliminary objection is accordingly overruled.
(6) On merits, it is conceded that the fact of the father of Shrimati Munna Sunder Singh being a wealthy man and being able to support her in her litigation is immaterial and irrelevant for the decision of this case. It is, however, urged that the other findings of the learned Additional District Judge, namely (1) on the point of sale of shares by her, (2) on the point of her possessing Jewellery worth rupees three lacs, and (3) on the point of her earning Rs.500/- per mensem from the Directorship of a company are erroneous on facts and are liable to be quashed. After going carefully into the matter I find myself wholly unable to agree with this contention. These findings prima facie seems to be correct, but it will not be proper for me to give a considered opinion on these matters as they will have to decided again in the main case in which evidence has yet to be recorded. There does not appear to be any reason for me to disturb any of these findings at this stage.
(7) I cannot, however, persuade myself to agree with the finding that the quantum of maintenance allowance should be Rs.2,500/- per mensem. It is true that Shri Bawa Sunder Singh has not made a clear denial of the fact that he possessed property worth several lacs or that he is earning Rs.15,000/- per mensem. An opportunity was given to him to make a clear admission or denial of the aforesaid facts but even then he filed a vague type of affidavit on the 9th of December, 1960. His wife filed another affidavit on the 5th of January, 1961, and he asked for an opportunity to file an affidavit in reply to the same. He did not avail of that opportunity also with the result that the affidavit of his wife dated the 5th of January, 1961, practically stands unrebutted on the record. It is urged before me that a person having wealth of several lacs of rupees and earning as much as Rs.15,000/- a month will certainly be paying heavy taxes and that this matter has not been taken into consideration. It is not clear from the record whether the statement of his income as given by his wife related to his gross or his net income, but it appears to me that the taxes paid by him do not seem to have been taken into consideration. Moreover the said statement from its very nature seems to be based on rough estimates and not on any real material, for example balance-sheets etc. In these circumstances, it is difficult to arrive at a figure of monthly maintenance by any arithmetical calculations, but taking into consideration the whole material on the record and the fact that the present appellant, who was presumably in possession of facts and figures regarding his income and who was further in possession of the account books evidencing the same, has not chosen to place proper material before the Court, it seems to be reasonable to put the figure of monthly maintenance at Rs.1500/- per mensem. I would accordingly allow the appeal to the extent of reducing the maintenance allowance of Shrimati Hunna Sunder Singh from Rs. 2500/- to Rs.1500/- per mensem. The order under appeal is confirmed in all other respects. In view of their divided success and of the peculiar circumstances of the case the parties are left to bear their own costs, in this appeal.