Radheshyam Gupta Vs. Smt. Laxmi Bai - Court Judgment

Singh, J.

1. This is an appeal by the husband against an order dated 26th July 1976 by which the trial court has allowed maintenance at the rate of Rs. 100 per month to the wife under Section 24 of the Hindu Marriage Act, 1955. By the same order, the trial Court has also allowed Rs. 200 for expenses of the suit.

2. Shri Jha, learned counsel for the respondent raised a preliminary objection before us that this appeal is not maintainable in view of the amendments made in the Hindu Marriage Act by Act 68 of 1976. Act 68 of 1976 came into force on 27th May, 1976. Section 28, as amended by this Act, does not provide for any appeal against an order made under Section 24. The application under Section 24 in this case was, however, made sometime in 1975 before coming into force of the amending Act. Section 28 as it then stood permitted an appeal against all decrees and orders and, therefore, an order made under Section 24 was then appealable. It is well settled that the right of appeal accrues on the date of institution of the originalproceeding and is presumed to be not affected by a subsequent change in law jmless a contrary intention is expressed by the legislature (Garikapati v. Subbiah Choudhry, AIR 1957 SC 540 at p. 553). The right of appeal accrued in this case in 1975 when the application under Section 24 was made. The question to 'be decided by us is whether the amending Act expresses the intention to take away this right.

3. Section 39 of the amending Act (Act 68 of 1976), which is relevant on this point, reads as follows:

'39, Special provision as to pendingcases-

(1) All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such Court-

(i) 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 by this Act;

(ii) If it is a petition or proceeding under the Special Marriage Act, then so far as may be, as if it had been originally instituted therein under the Special Marriage Act, as amended by this Act.

(2) In every petition or proceeding to which Sub-section (1) applies, the court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the pleadings, in so far as such amendment is necessary to give effect to the provisions of Sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, as the case may be for divorce.'

4. It will be seen that because of Section 39 (1) (i) a proceeding pending at the time when the amending Act came into force is to be 'dealt with and decided as if it had been originally instituted' under the Hindu Marriage Act as amended by the amending Act. A proceeding pending at the time when the amending Act came into force was not in fact originally instituted under the Hindu Marriage Act as amended by the amending Act. However, because of the fiction created by Section 39 (1), it has to be dealt with and decided as if it had been instituted under the Hindu Marriage Act as amended by the amending Act. The mandate contained in this provision is in terms directed to the Court where the proceeding is pending, but when an order made in any such proceeding is taken up in appeal, the appellate Court must naturally decide the appeal on the same basis because the appellate Court has to apply the same law which the trial Court was bound to apply. We have earlier stated that a right of appeal vests in a suitor at the institution of original proceeding in accordance with the law then in force. Now when Section 39 requires a pending proceeding to be dealt with and decided as if it had been instituted under the Hindu Marriage Act as amended by the amending Act, we have to see the Act as amended for the purpose of seeing what right of appeal vested in a party. As noticed before, Section 28 as substituted by the amending Act does not provide for any appeal against orders passed under Section 24. The proceeding under Section 24 with which we are concerned is to be treated as instituted under the Hindu Marriage Act as amended, therefore the new Section 28 will govern the rights of appeal of the parties and as this section provides no appeal against orders passed under Section 24, the appellant cannot appeal to this Court. It is true that factually when the application under Section 24 was made, the right of appeal did accrue to the appellant in accordance with old Section 2fi, but Section 39 of the amending Act read with new Section 28 has taken away that right. For these reasons, the preliminary objection raised by the learned counsel for the respondent succeeds.

5. The appeal fails and is dismissed but without any order as to costs.