1976 JTR(HP) 41
1977 AIR(HP) 83 ; 1977 KHC 1818
High Court Of Himachal Pradesh
R.S.PATHAK
DHANI RAM - Appellant
Versus
SUSHILA DEVI - Respondent
M. F. A. No. 27 of 1971
Decided On : 10/30/1976
The appealability of orders under the Hindu Marriage Act is limited to specific decrees and orders mentioned in the Act itself, and certain other orders made appealable under the Code of Civil Procedure.
Act Referred :HINDU MARRIAGE ACT : S.21, S.28
APPEAL - Hindu Marriage Act - Appealability of order staying proceedings in divorce petition
Fact of the Case:
The husband filed a petition for divorce under S. 13 of the Hindu Marriage Act. The wife applied for maintenance and litigation expenses pendente lite under S. 24 of the Act and also applied for stay of the proceedings in the divorce petition.
Finding of the Court:
The court found that the appeal was not maintainable as the order staying the proceedings in the divorce petition was not appealable under the Hindu Marriage Act.
Issues: The main issue was the appealability of the order staying the proceedings in the divorce petition during the pendency of the wife's application under S. 24 of the Act.
Ratio Decidendi: The court relied on the interpretation of S. 28 of the Hindu Marriage Act and previous case law to determine that the order staying the proceedings was not appealable.
Final Decision: The appeal was rejected as the court found that no appeal lies against the order staying the proceedings in the divorce petition.
APPEAL - Hindu Marriage Act - Appealability of order staying proceedings in divorce petition
Fact of the Case:
The husband filed a petition for divorce under S. 13 of the Hindu Marriage Act. The wife applied for maintenance and litigation expenses pendente lite under S. 24 of the Act and also applied for stay of the proceedings in the divorce petition.
Finding of the Court:
The court found that the appeal was not maintainable as the order staying the proceedings in the divorce petition was not appealable under the Hindu Marriage Act.
Issues: The main issue was the appealability of the order staying the proceedings in the divorce petition during the pendency of the wife's application under S. 24 of the Act.
Ratio Decidendi: The court relied on the interpretation of S. 28 of the Hindu Marriage Act and previous case law to determine that the order staying the proceedings was not appealable.
Final Decision: The appeal was rejected as the court found that no appeal lies against the order staying the proceedings in the divorce petition.
R.K. Punshi, for Petitioner
JUDGMENT
1. This is a husbands appeal against an order of the learned Senior Subordinate Judge, Bilaspur staying the proceedings in a petition under S. 13 of the Hindu Marriage Act during the pendency of the wifes application under S. 24 of the Act.
2. The husband, Dhani Ram, filed a petition for divorce under S. 13 of the Hindu Marriage Act. During the pendency of the petition, the wife applied for maintenance and litigation expenses pendente lite under S. 24 of the Act. While that application was pending, she applied for stay of the proceedings in the divorce petition. On July 15, 1971 the learned Senior Subordinate Judge, Bilaspur made an order accordingly. The husband appeals.
3. In my opinion this appeal is not maintainable. In a recent case: Smt. Taranjit Kohli v. Gurbaksh Singh Kohli, ILR (1975) Him Pra 663, a Division Bench of this Court laid down that the decree and orders mentioned in S. 28 of the Hindu Marriage Act, which provides for appeals, are the decrees and orders specifically referred to by the Act itself, such as a decree for restitution of conjugal rights under S. 9, a decree for judicial separation under S.10, a decree of divorce under S.13, orders made for maintenance pendente lite and expenses of proceedings under S. 24, and for permanent alimony and maintenance under S. 25. Certain other orders, it was held, were also appealable. Those are orders made under the Code of Civil Procedure by virtue of S. 21 of the Hindu Marriage Act. Those orders are appealable if they have been made appealable expressly under the Code itself. No other order made in the course of trying a petition under the Hindu Marriage Act is appealable. The order impugned in this appeal is an order staying the proceedings in the divorce petition until the application under S. 24 of the Act is disposed of. No appeal lies against such an order. I am obliged to Shri R. K. Punshi learned counsel for the appellant, for placing very fairly the relevant case law before me, and I find from those cases that the Calcutta High Court in Sm. Anita Karmokar v. Birendra Chandra Karmokar AIR 1962 Cal 88, has also come to the view that an application made for stay of further proceedings in a matrimonial action is not an appealable order under the Hindu Marriage Act.
4. In the circumstances, the appeal fails and is rejected. As the respondent has not entered appearance, there is no order as to costs. Appeal dismissed