Bombay High Court
Vera Aranha vs Jacob Harlad Aranha on 26 June, 1987
Equivalent citations: (1987)89BOMLR402, AIR 1987 BOMBAY 317, (1987) MAH LJ 849
JUDGMENT Guttal, J.
1. This Appeal has been placed before us upon a reference made by Daud, J., made on 13th March, 1987, The facts giving rise to this reference are as under:--
The appellant, who is the wife of the respondent to this appeal, instituted M.J. Petition No. 714 of 1977 for divorce on the grounds that the respondent husband was guilty of adultery and cruelty. The parties are Indian Christinas and are governed by the Indian Divorce Act (hereinafter referred to as the "Act"). During the pendency of the M.J. Petition No. 714, the appellant made a petition viz., No. 77 of 1982 for alimoney pendente lite under S. 36 of the Act. On 25th January 1983, the Bombay City Civil court, lwhere M.J. Petition No,. 714 of 1977 was sent for trial and disposal , made an order awarding a sum of Rs.100/- to the appellant as interim alimony. On 28th January 1983, the same Court allowed a sum of Rs.750/- towards the expenses to prosecute the petition. On the same day, M.J. Petition No. 714 of 1977 was disposed of by a decree of divorce in favour of the appellant. In this appeal, the order of the Bombay City Civil Court dated 25th January, 1983 awarding interim alimony of Rs.100/- p.m. is impugned. This first appeal was filed on 21st March, 1983. An appeal by the respondent challenging the decree of divorce is pending in this Court. The petitioner-appellant claims that the amount of Rs.100/- is not commensurate with the income of the respondent.
2. When the appeal was called out for hearing before Daud, J, the respondent urged that in view of S. 55 of the Act and the judgment by a single Judge of this Court in Prithvirasinghji v. Bai jShiva Prabhakumar, AIR 1960 Bom 315 the order granting interim alimony was not appealable. On consideration of S. 28, Hindu Marriage Act, as it then stood, and which is pari materia with S. 55 of the Act,Gokhle, J. held that the appeal against an order of interim alimony was not maintainable. In Lallubhai v. Nirmalaben a contrary view was taken and it was held that the order of interim alimony was appealable. Daud, J. who was inclined to accept the view of the Gujarat High Court, found it difficult to do so in view of the judgment delivered by Gokhale, J. He, therefore, referred this appeal to the Division Bench by his order dated 13th March, 1987.
3. Daud, J, has not formulated the question referred to us. In order to focus attention on the exact question referred to us, we formulate the question as under:--
"Having regard to the provisions of S. 55, Divorce Act, is an order of alimoney pendente lite, made under S. 36 of the Act, appealable?"
4. Three sections of the Act are relevant for the consideration of the question that has been referred to us. We will briefly set out the substance of these sections. Section 36 provides that in any suit under the Act, the wife may present a petition for alimony pending the suit. Section 45, which appears in Part XII under the caption "Procedure" reads thus:
"Subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure."
5. The relevant part of S. 55, the languageof which we are called upon to construe reads as under :
"All decrees and orders made by the Court in any suit or proceeding under this Act...... may be appealed from in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction ............ may be appealed from under the laws rules and orders for the time being in force."
6. Section 28, Hindu Marriage Act, as it stood in 1960, has employed identical words. It reads:--
"All decrees and orders made by the Court in any proceedings under this Act shall be enforced in like manner as the decree orders of the Court made in the exerted of its 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."
7. The judgements that have been cited before us, with the exception of A. v.B (1898) ILR 22 Bom. 612, are under the Hindu Marriage Act, written with reference to S. 28 of the Act.
8. According to the appellant, S. 55 of the Act creates a substantive right of appeal, not only against all the decrees, but "all orders". The words "under the laws, rules and orders for the time being in force', which occur at the end of the first part of that section do not curtail the right of appeal, but merely prescribe the procedure, such as institution of and the forum for appeals. Thus, all orders are appealable, even if they are interim orders irrespective of the provisions of other laws, rules and orders which may be in force. According to the respeondent, "the laws, rules and orders for the time being in force" refer, in the context of this case, to the Code of Civil Procedure. They quality the right of appeal. Therefore, if the order is not appealable under the provisions of the Code of Civil Procedure, no appeal against such an order lies, S. 55 of the Act notwithstanding.
9. Before referring to the judgements cited before us, certain consequences of the construction advocated before us by Mr. Arbanha, who appears in person, may be borne in mind. The argument is that though "all" orders are appealable under the first part of s. 55, in order that such order is appealable, O. LXIII and S. 104, Civil P.C. must also make the order appealable. In other words, the right of appeal under S. 55 may be curtailed by the provisions of any other law which may be in force. Secondly, though the right of appeal is apparently unqualified and unlimited, it depends upon what the Code of Civil Procedure enacts. The argument of the respondent, if accepted, would mean that what is created by S. 55, can be limited by another law. In other words, by our construction we are asked to limit or curtail the right of appeal granted by s. 55.
10. Section 28, Hindu Marriage Act, as it stood in 1960, also provides that "all decrees and orders" may be appealed from "under any law for the time being in force". Prithvirajsinghji v. Bai Shiva Prabhakumari, AIR 1960 Bom 315 lays down tow propositions:
Firstly, the words "any law for the time being in force" occurring in S. 28, refer to the laws such as the Code of Civil Procedure and that such laws determine the appealability of the such laws determine the appealability of the orders made under the Hindu Marriage Act;
Secondly, S. 104 and O. LXIII, R. 1 Civil P.C., which set out orders appealable under the Code of Civil Procedure, do not list the orders of alimony pendent lite made under the Hindu marriage Act. Therefore, order of interim alimony made under S. 24, Hindu Marriage Act is not appealable.
11. As against this, in three decisions of the Gujarat High Court, lallubhai v. Nirmalaben, , Harilal Purshottam v. Lilavati Gokaldas, and bai Umiyabhen v. Ambalal Laxmidas, a contrary view has been taken.
12. The law laid down by Gujarat High Court may be sumarised as under :--
Section 28, Hindu Marriage Act, does not intend to create right of appeal against decrees and orders passed under that Act by reference to what is enacted by the Coe of Civil Procedure. There is no provision in the jcode of Civil Procedure or in any other law under which any appeal could be filed from orders made under the Hindu Marriage Act. Harilal Purshaottam v. Lilavati Gokaldas, . Lallubhai v. Nirmalaben, .
13. A right of appeal against "all decrees and order" is created by jS. 28, Hindu Marriage Act.
Harilal Purshottam v. Lilavati Gokalas .
(c) The words "under any law for the time being in force" employed in S. 28, are intended to provide procedure for and the forum of such appeals and do not determine appealability of the orders. Harilal Purshottam v. Lilavati Gokaldas, , Bai Umiyabhen v. Ambalal Laxmidas, .
14. Two more decisions are of importance they are D. S. Seshadri v. Jayalakshmi, and Kode Kutumbha Rao v. Kode Sesharathnamamba, . The madras High Court, as also the Andhra Pradesh High Court laid down that the right of appeal created by S. 28, Hindu Marriage Act cannot be subject to limitation that such a right should be shown to have existed under some other law, such as Code of Civil Procedure. The held that the word "any law for the time being in force" regulate the forum and procedure and do not restrict the right of appeal created by the Hindu Marriage Act. A similar view was taken in Sushila Devi v. Dhani Ram, and Smt. Snehlkata Dansena v.l Jagdish Dansena, .
15. We now proceed to consider the question referred to us.
16. Under S. 55 "all" decree and orders may be "appealed from". Since "all" orders may be "appealed from" under S. 55, the question is whether the words "all......... orders" mean every order or such order as may be appealed from under the provisions of the Code of Civil Porcedure, If the decision of Gokhale, J in Printhvirasinghji's case (AIR 1960 Bom 315) is accepted, it would mean that what is given by the first part of S. 55, is taken away by the latter words "under any law for the time being in force" used in the same section.
17. Words have meaning. They mean what they say. Therefore, when S. 55 says "all orders" may be appealed from, it means that every order made under the Act is appealable.
18. Consider the consequences of the decision in Printhvirajsinghji's case (AIR 1960 Bom 315). The first part of S. 55 grants a right of appeal. That the first part of S. 55 itself confers the right of appeal from all decrees and orders was recognised as early as 1898 in "A" (hsband-plaintiff) v. "B (wife-defendant) (1898) ILR 22 Bom 612. The latter part "under any law for the time being in force" of the same section is supposed to say "whether you have a right of appeal will be determined by S. 104 and O. LXIII, R.1, Civil P.C.". such a construction is not only meaningless, but is destructive of the right granted by the same section.
19. The legislative purpose is to make "all orders" appealable. In order to determine whether a particular order is appealable, one has to turn to the other laws, thereby introducing absurdity in the construction. It is an established rule of interpretation of statutes that a construction which would reduce the legislation to futility should be avoided. To quote, maxwell on Interpretation of Statutes, Twelfth Edition, p. 45:--
"If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislative, we should avoid a construction which could reduce the legislation to futility and should rather accept...... the construction based on the view that Parliament would legislature only lfor the purpose of bringing about an effective result."
20. Thus, with respect, the construction adopted in Printhvirajsinghji's case renders the legilative intent of conferring an unqualified righth of appeal futile. We prefer the construction adopted by the decisions of the Gujarat, Madras and Andhra dPradesh High Courts, lbecause they effectuate the Legislative intent by creating right of appeal and achieves the manifest purpose of the legislation.
21. The second consequence is this: A right of appeal is made to depend upon and limited by another law like the code of Civil Procedure. This would introduce the words to the effect "if the Code of Civil Procedure permits appearls against such decrees and orders" to equalify the right of appeal. Suchc a consequence, which would limit the right of appeal by the provisions of another laws, was not intended by the Partiament.
22. There is one more reason which supports the construction which we propose to adopt. The effect of the decision in Prithvirajsinghji's case is to deny the right of appeal to litigants aggrieved by orders which do not find a place in S. 104 and O. LXIII, R. 1, Civil P.C. If the Legislature intended such a result, it would have so enacted. Where it did intend to deny the right of appeal, it has clearly asserted such intention. For example, the first proviso to S. 55 expressly takes away the right of appeal from a decree of disoolution of marriage or nullity of marriage made by the District Judge or a decree of the High Court confirming or refusing to confirm such a decree. Similarly, the second proviso exlcudes appeals from orders for costs only. In our opinion, lthe Parliament did not intend to limit the right of appeal created by S. 55 by referring to the Code of Civil Procedure, for if it did, it would have said so, as indeed it said so in the cases referred to in the proviso.
23. It was pointed out to us that S. 45 of the Act lays down that "all proceedings under this Act between party and party shall be regulated by the Code of Civil Porcedure". This Section was relied upon to urge that the appealability of the orders made under S. 36 depends upon the provision of the orders made underS. 36 depends upon the provisions of the Code of dCivil procedure. It is not possible to accpet this submission, because the words of significance are "shall be regulated". Section 45, which makes the Coe of Civil Procefure applicable, intends to regulate the proceedings under the Act. The Act itself does not prescribe the procedure either for the trial or for the appeals. It was, therefore, necessary to provide the manner in which the trial and the appeals should proceed. That is why the Legislature has imported the procedure of the Code of Civil Procedure for the purpose of regulating proceedings under the Act. Merely, because the procedure of the Code of civil Procedure has been made applicable, it does not follow that the right of appeal, which is a substative right created by S. 55, is restricted by application of the Code of Civil Procedure. The application of the procedure prescribed by the Code of Civil Procedure cannot be construed to mean that the enqualilfied right of appeal created by S. 55 of the Act is controlled by the Code of simple. Right of appeal is substantive right. It is not a matter of procedure. The grant of right of appeal is signified by the words "all decrees and orders........ may be appealed from". What is sought to be regulated under the Code of Civil Procedure are the matter of procedure like the institution and forum. This view finds support from the judgement of the allahabad High Court in Sarla Devi v. Balwan Singh, .
24. There are two other decisions in which the view taken by Gokhale, J. was followed by two other High Courts. They are : Mohan Rani v. Mohanlal, AIR 1965 J & K 88 and Gopendra Nath Basu Malik v. Prativa Rani, . In our opinion, S. 55, which creates a substative right of appeal, cannot be so construed as to negative that right by making it dependent upon the provisions of the Code of Civil Procedure, which makes only certain orders appealable. The words "any law for the time being in force" in S. 55 of the Act clearly refer to the matters of procedure and do not indicate curtailment of the right granted in respect of all the orders. We do not, therefore, follow these two decisions.
25. 16-17. As already stated, the result of the acceptance of the view taken by Gokhale, J. (supra) is to unto what is granted by S. 55. We cannot construe the provisions of a Statute to mean that the Legislature, which created a substantive right of appeal by one clause of the section intended to take away such a right by refrring to a matter of procedure. Such a construction would be clearly opposed to the plain intendment of the Legislature. A statute should be so construed as to advance a remedy created by the law and not to curtail it. Significantly, S. 55 has referred to the appealability of 'all orders:" which means every order. We accept the view of the Gujarat High Court, Andhra Pradesh High Court and the Madras high jCourt in the decisions earlier cited that the words "under any law for the time being in force" are not intended to curtail or take away the right of appeal granted by first clause of S. 55. Any other view attributes to the Legislature the intention to curtail ro limit the right of appeal granted in so clear words. Such a construction is plainly inconsistent with the grant of unqualified right of appeal by S. 55.
26. In our opinion, the right of appeal created by S. 55 is unqualified and absolute. No words of limitation of this right of appeal dare discernible to us. The words "under any law for the time being in force" in the first clause of S. 55 refer to the procedure and do not relate to the right of appeal. Similarly, the language of S. 45, which imports the regulation of the proceedings by the Code of Civil Proceddure, does not suggest that the substantive right of appeal created by S. 55 is controlled or restricted by such procedure. Section 45 is intended to regulate the proceedings and is not intended to limit the right of appeal.
27. We, therefore, hold that Printhvirajsinghji's case was not correctly decided. For the reasons tated in the foregoing paras, we hold that the decisions of the single Judge in Printhvirajsinghji v. Bai Shiva Prabhakumar, AIR 1960 Bom 315 does not correctly interpret S. 55 of the Act.
28. We, therefore, answer the reference as under:--
The order of alimony pendente lite made under S. 36, Divorce Act, is appealable under S. 55 of the Act.
29. The appeal may now bee placed before the learned single Judge for disposal in accordance with law.
30. Ordered accordingly.