Mrs. Shubra Bagchi vs P.K. Bagchi

S.M.F. Ali, C.J.—The present reference to the Full Bench was necessitated by a preliminary objection taken by the counsel for the

respondent before a Division Bench of this court which heard the appeal that the present appeal was not maintainable and did not lie u/s 28 of the

Hindu Marriage Act (hereinafter referred to as the Act). Reliance was placed by the counsel for the respondent on an earlier Division Bench

decision of this court in Mohan Rani v. Mohan Lal, AIR 1965 J & K 88. The Division Bench which has made the reference to the Full Bench was

of the opinion that the Division Bench decision (Supra) required reconsideration in the light of later decisions of other High Courts in India, and

accordingly the point that has been referred to us is as follows:

Whether an order passed by the District Judge u/s 24 of the Act refusing alimony and litigation expenses and as a consequence thereof closing the

evidence of the appellant is appeal able to the High Court.

It appears that the respondent, P.K. Bagchi, the then Sr. Superintendent of Post Offices, Kashmir Division, filed a suit praying for a decree for

judicial separation and custody of the minor child against the appellant Mrs. Shubra Bagchi before the District Judge Srinagnr on various grounds.

When the suit proceeded to hearing the appellant made an application before the court for grant of temporary alimony and litigation expenses. The

Court below by its order dated 18-3-1972 ordered that Rs. 2000/- out of the amount deposited by the petitioner may be paid as alimony and Rs.

500/- as litigation expenses. This order was passed presumably on the assumption that the application would be decided soon. Unfortunately more

than two and a half years have passed and the case has not yet come to a close. The appellant was asked to produce her evidence and she made

an application before the court below that since the proceedings had continued for a period of three years, a fresh amount of litigation expenses so

as to enable her to summon witnesses may be directed to be deposited by the respondent husband. No specific order was passed on this

application but by virtue of order dated 8-10-78 the District Judge rejected the application on the ground that the litigation expenses had already

been ordered to be deposited and since the appellant had not produced her evidence, the court closed her evidence. This led to an appeal before

the Division Bench which has now referred the question formulated above to the Full Bench.

In this case we are not concerned with merits of the case of the parties which shall have to be gone into by the Division Bench after the

reference has been answered and the case is sent back. We have, however, to decide whether the present appeal is maintainable u/s 28 of the

Act, or, in other words, whether or not an order passed u/s 24 or for that matter the order closing the evidence of the appellant is appealable u/s

28 of the Act. As before the Division Bench, so also before us, the learned counsel for the respondent has relied on a Division Bench decision of

this Court in AIR 1965 J&K 88 (supra) and has submitted that this decision lays down the correct law. On the other hand counsel for the

appellant has cited a large catena of authorities taking a contrary view and holding that an order under the Act more particularly u/s 24 is

appealable. Before dealing with the Division Bench decision whose correctness or validity we are called upon to decide, it may be necessary to

extract the section and the authorities on which the D.B. decision was based.

Section 28 of the Act runs thus:

All decrees and orders made by the court in any proceeding under this Act. Shall be enforced in like manner as the decrees and orders of the court

made in the exercise of its original civil jurisdiction 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.

An analysis of this section would show that this provision runs into two parts: (1) that which deals with the enforceability of a decree or orders

passed under the Act; and (2) that which regulates appeals against decrees or orders passed in the proceedings under the Act. The proviso makes

a specific provision prohibiting any appeal op the subject of costs only. On an interpretation of this section, the Division Bench of this Court in the

case (AIR 1965 J.& K. 88) (supra) has held that the section itself did not confer any right of appeal, but it left it to the law con calmed to govern

the right, the forum and the procedure of the appeal. The Division Bench held that as decrees passed under the Act were clearly appealable, only

those orders passed under the Act could be appealable which fell within the ambit of Order 43 Rule 1 of the Civil P.C. In this connection their

Lordships observed as follows:

Therefore the plain meaning of the words in Section 28 of the H.M. Act would be that from such decrees or orders as are appealable under the

Civil P.C. u/s 104 and Order 43 an appeal shall lie to the High Court, Other orders which do not satisfy the definition of a decree or are not

enunciated in Section 104 or Order 43 Civil P.C. cannot be made the subject-matter of an appeal before the High Court but are revisable under

the provisions of Section 115 of the CPC. Section 28 of the H.M. Act presents no difficulty and we do not find that there is any scope for so much

of conflict about its interpretation.

If the interpretation put on this section by such authorities as Smt. Snehalata Dansena Vs. Jagadish Dansana, , Smt. Sobhana Sen Vs. Amar Kanta

Sen, or Kadia Harilal Purshottam Vs. Kadia Lilavati Gokaldas, is accepted, it would lead to ridiculous result. According to these authorities every

order passed in a proceeding under the H.M. Act would be appealable. That would mean that every interim order would be appealed from. For

instance, if a certain plaintiff is directed to deposit process fee for a defendant he could go in appeal against that order. If a witness is not present

on a certain hearing and a fresh summons is issued for that, witness, the order would be appealable. If a counsel for a party wanted time for

argument the order would be appealable. This could never be the intention of the law and would reduce the working of the Act to a farce.

(See page 89 of the Reports) From the observations made by their Lordships it would appear that the learned Judges were swayed by the

consideration that if Sec. 28 is held to have conferred a right of appeal against all decrees and orders, then it would lead to absurd results and even

interim orders regarding deposit of process fee and summoning of witnesses would become appealable to the High Court which would lead to

multiplicity of proceedings. I was also a party to that judgment, but I think at that time we did not consider the question in all aspects having regard

1o the scheme and the contest of the Act. It is well settled that where the language of the provisions of a statute is absolutely clear and

unambiguous, it is not open to interpret it by importing into it something which is not there or by doing violence to the language of the section

merely because certain anomalous results might follow or because the interpretation may lead to complicated consequences. In order to interpret

the provisions of Section 28 it will be necessary to examine the scheme and purport of the relevant provisions of the section which is necessary for

a decision of the issues before us. It will be seen that the various provisions of the section make a clear distinction between decrees and orders, It

is obvious that a decision given on an application under Sections 9, 10, 12 and 13 would not amount to a decree as envisaged by the provisions of

the Civil P. C. but by the statutory force of the Act the decision becomes a decree which is appealable. Thus we find that in Sections 9, 10, 12,

13, 15, 23 and 27 the statute conspicuously uses the word 'decree' in relation to an application for restitution of conjugal rights, judicial separation,

divorce or a declaration of nullity of marriage. Vide the words in Section 9 (1) of the Act ""may decree restitution of conjugal rights accordingly."" In

Section 10 the words 'praying for a decree for judicial separation.' In Sec. 12 the words ""may be annulled by a decree of nullity."" In Section 13 the

words ""be dissolved by a decree of divorce."" In Section 15 the words ""when a marriage has been dissolved by a decree of divorce."" In Section 23

(e) the words: ""the court shall grant such relief accordingly."" and in Sec. 27 the words ""the court may make such provisions in the decree as it

deems just and proper.

On the other hand in Sections 21, 25 and 26 of the Act which relate to maintenance, alimony and custody of children the statute contemplates only

orders and not decrees being passed. For instance in Section 24 the relevant provision runs thus: ""It may on the application of the wife or the

husband order the respondent to pay to the petitioner."" In Section 25 the words run thus: ""It may at the instance of either party, vary, modify or

rescind any such order in such manner as the court may deem just,"" Similarly in Section 26 the relevant provision is as follows: ""make from time to

time, all such orders and provisions with respect to the custody, maintenance and education of such children."" Thus it is manifest that the statute

contemplates two kinds of (sic) that culminate in a decree and 2) that culminate in an order which may be wore or loss of an interim or an

interlocutory type but at the same time S. 28 makes both the decrees and orders enforceable and appealable. We are not concerned with the first

part S. 28 relating to the enforceability of decrees and orders but with the second part of that section which relates to appeals. The words may be

appealed from under any law for the time being in force' clearly contemplate two things. First, that the statute confers the right of appeal against an

order or decree in the proceedings under the Act, but the forum and the procedure for the appeal is to be determined by the concerned law,

whether it is the Civil P. C. or any other law. In fact Section 28 has to be read with Section 21 of the Act which runs thus:

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act

shall be regulated, as far as may be, by the Civil P. C. 1908 (Act 5 of 1908).

Section 21 clearly provides that all proceedings under the Act shall be regulated in accordance with the Civil P. C. unless there are provisions to

the contrary in the Act So far as the right of appeal is concerned, Section 28 contains a clear and specific provision which confers a right of appeal

to the aggrieved party against any order or decree in any proceeding under the Act. In these circumstances, therefore, in so far as the conferment

of the appellate power which is the creature of the statute is concerned, it is expressly provided for in the second part of Section 28. The forum of

appeal, the procedure and the manner in which an appeal is to be entertained or heard is left to the concerned law which means the Civil P. C. by

force of Section 21 of the Act (Supra). In these circumstances we have no hesitation in holding that whatever be the complicated consequence of

our interpretation the language of the second part of Section 28 is clear enough to indicate that a right of appeal is expressly conferred against the

decrees and orders mentioned therein and there is no justification for putting a narrower interpretation merely to avoid multiplicity of proceedings.

Our conclusion is further reinforced by the existence of the proviso to Section 28 which clearly provides that there shall be no appeal on the

subject of costs only. This proviso therefore envisages the existence of the right of appeal which has been curbed by it.

In other words if there is no right of appeal, the question of placing any limitation on such a right would not arise and therefore the proviso would

become redundant if we hold that the second part of Section 28 does not contain or confer any right of appeal. Secondly the Act is a completely

self-contained statute and provides for a decree in certain cases and, orders in others. It is not reasonable to infer that being a completely self-

contained statute it would leave the right of appeal to the mercy of some other statute. Furthermore it seems to us that the act has revolutionised the

ancient Hindu Law and conferred new rights and liabilities on Hindu spouses and the various orders and decrees passed in the proceedings under

the Act are mailers of moment and therefore it could not have been the intention of the legislature to give a stamp of complete finality to the interim

orders passed under the Act, even though some of those orders may touch the Civil rights of the parties, for instance the right to claim alimony,

litigation expenses or even custody of the children. The legislature was aware that a civil revision against an order of the District Judge was not

maintainable in such cases and in its wisdom it thought that the best thine was to make all decrees and orders appealable in accordance with the

forum laid down by the Civil P. C. Thus it seems to us that the intention was to equate decrees with interim orders so far as the matter of appeals

or for that matter their enforceability was concerned. We are fortified in our view by a large catena of decisions to which we shall now refer.

In Kadia Harilal Purshottam Vs. Kadia Lilavati Gokaldas, , at p. 204 a Division Bench of the Gujarat High Court observed as follows:

The right of appeal is a statutory right. In order that a party may have a right of appeal, that right has to be conferred by legislation. If the words

used in Sec. 28 ""may be appealed from under any law for the time being in force."" mean that an appeal would only lie in those cases where some

other law lays down that such appeal can be preferred, then the result would he that we would have to look to the provisions of the Civil P. C. in

order to consider whether any appeal is provided under the Code in respect of decrees and orders passed under the H.M. Act, 1955. No other

law is pointed out which confers any right of appeal.

X X X X

The orders passed under Secs. 24, 25 and 26 of the Act are no orders falling within Section 104 and Order 43 Rule 1 of the Civil P.C. If this

interpretation is accepted, the result would be that there would not be any decree or any order under any of the aforesaid sections which would be

appealable. This could not possibly be the intention of the legislature. The section is intended to deal inter alia with the subject of appeals from

decrees and orders passed under the Act. If there was no law under which an appeal would lie from any decree or order passed under the Act the

provision in that connection would be futile and devoid of meaning. By this Act the legislature has conferred special rights and has provided special

remedies.

X X X X

It seems to us that the legislature intended to confer a right of appeal by the provisions of Section 28 itself by using the words ""All decrees and

orders made by the Act in any proceeding under this Act.....may be appealed from.........."" and that the intention of the legislature was not to refer

parties to any other enactment for the purpose of ascertaining whether the decrees or orders passed under the Act were appealable or not. Having

regard to the language used by the legislature which, we are painfully conscious is not very apt, some meaning has to be given to the words 'under

any law for the time being in force.' Those words, on a true construction of the Act, are intended to provide for the forum before which the appeal

is to be preferred. They may well relate to the procedure in connection with the appeals which may be filed u/s 28.

This view was reiterated in another Division Bench of the same High Court in Umiyabhen v. Ambalal, AIR 1966 Cuj 139, (sic)45 wherein their

Lordships observed as follows:

If the words 'decrees and orders made by the court' include not only original decrees and orders but also appellate decrees and orders, it is clear

that the provision enacted in the second part of Section 28 makes such decrees and orders appealable. It has already been held by this court in

Kadia Harilal Purshottam Vs. Kadia Lilavati Gokaldas, that Section 28 itself confers a right of appeal by using the words 'may be appealed from'

and a right of appeal against an appellate decree or order made by the court in any proceeding under the Act is therefore clearly provided by the

section.

X x x x

The section undoubtedly confers a right of appeal by using the words 'may be appealed from but that right of appeal is to be exercised 'under any

law for the time being in force.' The procedure for filing the appeal and the jurisdiction and powers of the court in dealing with the appeal are

governed by the law for the time being in force which would include inter alia the Civil P. C.

X X X X

We may amplify this statement by saying that these words provide not only the procedure for filing the appeal and the forum in which the appeal

must be filed hut also the jurisdiction and power of the court in dealing with the appeal so filed. The light of appeal is conferred by the section but

the nature and extent of the right of appeal which depend on the procedure, jurisdiction, and power of the court in dealing with the appeal are

governed by the law for the time being in force which includes (sic) the Code.

A similar view was taken by a Division Bench of the Allahabad High Court in Smt. Sarla Devi Vs. Shri Balwan Singh, , at p. 602 wherein the

following observations were made:

A right of appeal is a substantive right and is not a mere matter of procedure. The use of the words shall be regulated as far as may he, by the Civil

P. C. 1908' in Section 21 of the Act clearly indicate that it is the procedure only which is to be regulated by the Civil P. C. Section 28 of the Act

confers an (sic)ed right of appeal. The words used and may be appealed from in Section 28 of the Act clearly give a person aggrieved the right to

file an appeal. In our opinion, therefore, an order passed u/s 24 of the Act is appealable at the instance of a party aggrieved.

The M.P. High Court in Rukhmanibai Vs. Kishanlal Ramlal, observed as follows:

Sec. 28 of the Act has been enacted with the intention of giving a right of appeal. If the right of appeal is to be inferred from the provisions of any

other law the section so far as it relates to appeal would be meaningless and the words underlined would be superfluous. It cannot be accented that

a right of appeal from orders which are passed under specific provisions of the Act should be provided for in any other law.

In this case Shrivastava J. held that Section 28 clearly conferred a substantive right of appeal against an order passed u/s 24 of the Act.

To the same effect is a Division Bench decision of the Calcutta High Court in Smt. Sobhana Sen Vs. Amar Kanta Sen, , 457 wherein their

Lordships observed as follows:

On consideration of all these, I have come to the conclusion that the intention of the legislature was that all decrees and orders made by the court in

a proceeding under the Act shall be appealable and that the words 'under any law for the time being in force were added to indicate that the forum

where the appeal would lie, viz. to the D.J. or to the High Court, and such other matters as regards procedure for the hearing of the appeals would

be decided by the law on the subject for the time being in force."" There are two Full Bench decisions which have also affirmed the view that orders

passed u/s 24 are appealable u/s 28 which confers a right of appeal.

In Kode Kutumab Rao Vs. Kode Sesharatnamamba, , at p. 331 their Lordships of the Full Bench pointed out as follow:

Be that what it may, it is clear from our discussion that the expression 'under any la. for the time being in force must be referable not to the

substantive right of appeal which is conferred by Section 28 itself in relation to all decrees and orders specified as such in the relevant provisions of

the Act viz. Section 9 to 13 and Sections 24 to 27, but to the procedure, forum and other relevant matters for the enforcement of the right of

appeal.........It is this interpretation which ought to be preferred to the other interpretation sought to be put as it removes absurdity, repugnancy and

inconsistency which the other interpretation, gives rise to and further gives effect to the intention of the legislature apparent from the statute without

straining or doing violence to the language used and by putting that construction as the words employed admit of.

We are of the view that Section 28 by itself gives the right of appeal and the enforcement thereof is made subject to the laws in force relevant

thereto. That is what is contemplated by the second part of S. 28 of the Act.

Similarly in Paras Ram Vs. Janki Bai, , at p. 396, the Full Bench observed as follows:

Section 28 lays down that an order made by the court in any proceeding under the Act ""may be appealed from under any law for the time being in

force."" The court of a Civil Judge in the State is created under the Bengal, Assam and Agra Civil Courts Act, 18S7. Section 21 of the Act lays

down that an appeal from an order of a Civil Judge shall lie to (a) the District Judge where the value of the original suit in which the order was

made does not exceed ten thousand rupees and (b) the High Court in any other case.

It is true that in this case the point was not fully discussed, but the clear and unequivocal view expressed by the Full Bench no doubt fortifies the

view that we have taken in this case.

There is another Division Bench decision of the Bombay High Court in Madhukar Trimbakrao Ghisad Vs. Malti Madhukar Ghisad and

Another, which has taken the same view after overruling its previous decision in Prithvirajsinhji Mansinghji Vs. Bai Shivprabhakumari, which was

relied upon by the Division Bench decision of this Court in AIR 1965 J & K 88 (Supra). In this connection their Lordships of the Bombay High

Court observed as follows:

We have heard the counsel for the parties at considerable length and on a proper construction of provisions of Section 28 of the Act we are

inclined to take the view that the right of appeal against a decree or an order made in a proceeding under the Act is given by the provisions of

Section 28 itself.

X X X X

In our view a right of appeal against decrees and orders passed under this Act is given by the provisions of Section 28 itself. There has to be some

law to which one can look for the purpose of deciding the forum where an appeal can be filed. The Civil P.C. does not provide for forum though it

may provide for the procedure to be adopted while deciding the appeal.

X X X X

It also appears to us that the legislature having given a right of appeal in Section 28 it also provided in the latter part of that section for the

procedure for filing the appeal and the forum for the appeal as also the jurisdiction and power of the court in dealing with the appeal filed, by

enacting the latter part of Section 28 using the words 'under any law for the time being in force,'

X X X X

Since Section 28 is a self contained provision regarding the right of appeal the forum for and the procedure applicable to such an appeal, we are

not inclined to agree with the observations made in Prithvirajsinhji Mansinghji Vs. Bai Shivprabhakumari, that having made a reference in Section

21 of the Act to the Civil P.C. accepting the argument of the opponents' counsel in that case, would mean that the legislature again emphasised in

Section 28 that the procedure governing the appeal would be that under the Civil P.C. which the legislature did not intend to do.

X x x x

We may also usefully refer to the provisions of the proviso to Section 28. The proviso provides that no appeal shall lie on the subject of costs only.

It is now well settled that a proviso deals with a topic which would but for the proviso, have fallen into the main provisions or the section. The

proviso to Section 28 also indicates that the legislature intended to carve out certain orders in respect of which no right of appeal was given. If the

effect of the proviso is that no right of appeal was to be given in respect of the subject of costs, then construing the proviso and the main section

together it must be held that if the proviso was not there a right of appeal could be exercised even in respect of an order with regard to costs. This

could only be done if the substantive provision in Section 28 itself gave a right of appeal.

In enacting the proviso to Section 28 the intention of the legislature was that an order with regard to costs was not to be the subject-matter of an

appeal. The proviso also, therefore, indicates to us that Sec. 28 gives a substantive right of appeal in respect of decrees or orders passed under the

Act.

(See pp. 143-146 of the Reports). A Division Bench of the Patna High Court was also of the same view in Suresh Prasad v. Manorama Debi,

AIR 1978 Pat 321 at p. 325 wherein their Lordships observed as follows-

Having regard to the discussion made above, I am of the opinion that all decrees and orders passed in a proceeding under the H.M. Act arc

appealable by virtue of the previsions of Section 28 itself. The words 'may be appealed from under any law for the time being in force' have to be

understood as meaning that although the right of appeal is derived from this section itself, so far as the procedural aspect of the appeal is

concerned, it will be governed by the Civil P. C. 1908 and the Rules prescribed for matters relating to the Act by the respective High Courts, in

this case the Civil Court Rules of the High Court of Judicature of Patna (Civil). Since an appeal lies against the impugned order, the petition in

revision is not maintainable. It has therefore to be dismissed.

In paragraph 14 however the observed as follows:

I may, in passing, observe that the appealable orders are only those which have been made by a court in any proceeding under the Act and not all

orders having connection with any proceeding under the Act. To other words, only such orders are appealable which have been passed under

Sections 24 to 27 of the Act.

We, however, find ourselves unable to agree with the view expressed by their Lordships in para 14 of the judgment (Supra). The distinction made

by their Lordships between orders passed in any proceeding under the Act and orders having connection with any proceeding under the Act

appears to be, with due respect, a distinction without any difference. An order passed under the provisions of the Act, whether under Sections 24,

25 or 26 would undoubtedly be an order in the proceeding under the Act and therefore the said distinction made by their Lordships appears to be

purely artificial and illusory. Furthermore, the interpretation is not borne out by the clear language of Section 28 which does not distinguish the kind

of orders passed under the Act and makes all kinds of orders passed under the Act appealable. With due deference, therefore, we express our

respectful dissent from the view expressed by their Lordships in para 14 (Supra). On the other point, however, the decision fully supports our view

that an appeal against an, order u/s 24 lies u/s 28 of the Act.

There are some other decisions of other High Courts also which have taken the same view.

In Smt. Snehalata Dansena Vs. Jagadish Dansana, , at p. 123 G.K. Misra J. (as he then was) observed as follows:

The legislature was quite aware of the position that there is no other law for the time being in force under which an appeal can lie from any order in

any proceeding under the Act. If no appeal is provided u/s 28, there would be no meaning in saying in the proviso that no appeal lies against costs

only. In that case the language used should have been that no appeal lies against any order in any proceeding under the Act. The right of appeal is a

substantive right which is always a creature of the statute and is not a mere matter of procedure. Garikapatti Veeraya Vs. N. Subbiah Choudhury, .

The proper construction is that the expression 'may be appealed from' confers substantive right of appeal against all decrees and orders made by

the Court in any proceeding under the Act. This substantive right is created by the Act u/s 28. The expression 'under any law for the time being in

force', refers to the forum and the procedure to be followed under any other law for the time being in force which includes Civil P.C. and the Rules

framed by the High Court.

To the same effect is a decision of the Punjab High Court in Dr. Tarlochan Singh Vs. Smt. Mohinder Kaur, at p. 309 wherein Mahaian J.

observed as follows:

I am inclined to follow the view of the Calcutta and the Madhya Pradesh High Courts in preference to the view propounded by the Andhra

Pradesh High Court. If I accept the view of the Andhra Pradesh High Court, the provision of appeal in Section 28 of the Act becomes wholly

meaningless, for no appeal against an order would be competent and this will lead to far-reaching consequences. The language of the section is

somewhat defective, but the intention seems to be clear that an appeal against the orders under the Act was sought to be provided for I would,

therefore, repel the pre-liminary objection.

The Madras High Court has taken the same view in Valliammal Ammal Vs. Periaswami Udayar, . To the same effect is a decision of the

Rajasthan High Court in Govind Ram Vs. Smt. Lila Devi and Another, . at p. 254 wherein Jagat Narayan J. has observed:

The difficulty arises in the case of orders made under the Act under Sections 24, 25 and 26. Section 24 provides for the grant of maintenance

pendente lite and expenses of proceedings. Section 25 for grant of permanent alimony and maintenance and Sec. 26 for the custody of children. It

seems to me that the legislature intended that orders under these sections should be appealable although the language of the section is undoubtedly

not happy.

The Judicial Commr. of Himachal Pradesh also took the same view in Smt. Shushila Devi Vs. Dhani Ram and Another, .

The view taken by a single Judge of the Madras High Court in Valliammal Ammal Vs. Periaswami Udayar, was reiterated by a D.B. in D.S.

Seshadri Vs. Jayalakshmi, , at p. 285 wherein their Lordships observed as follows:

In our opinion Section 28 in terms confers a right of appeal against all decrees an orders passed by the court in any proceeding under the Act,

X X X X

'The learned Judges held that the words 'under any law for the time being in force' in Section 28 of the Act were intended to provide for the forum

of appeal and that they did not qualify or restrict the right of appeal given under the statute. A different note has however been struck by Gokhale

J. in Prithvirajsinhji Mansinghji Vs. Bai Shivprabhakumari, , who was inclined to interpret the words 'any law for the time being hi force' in S. 28 as

regulating the appealability of decrees and orders passed under the Act. In our opinion the view taken in Smt. Sobhana Sen Vs. Amar Kanta Sen,

is consistent with the principles stated above and we accept the same.

It would thus appear that the High Courts of Calcutta, Bombay. Madras. Allahabad, Rajasthan, Gujarat, Orissa, Patna, Punjab. Andhra Pradesh

and Madhya Pradesh have taken the view that an order u/s 24 is appealable u/s 28. In other words this appears to be the general consensus of

judicial opinion on this point.

The Division Bench of this court in AIR 1965 J & K 88 (Supra) relied on Prithvirajsinhji Mansinghji Vs. Bai Shivprabhakumari, and Gopendra

Nath Basu Malik Vs. Sm. Prativa Rani Basu Mallik, . There is, however, a decision of the Mysore High Court in AIR 1962 Mys 172 which

supports the view taken by the aforesaid Division Bench decision of this Court. So far as Bhamidipati Saraswathi Vs. Bhamidipati Krishna Murthy,

is concerned it was specifically overruled by a Full Bench of the Andhra Pradesh High Court in Kode Kutumab Rao Vs. Kode Sesharatnamamba,

which also dissented from the view taken in Prithvirajsinhji Mansinghji Vs. Bai Shivprabhakumari, and the Division Bench decision of our own High

Court. So far as Prithvirajsinhji Mansinghji Vs. Bai Shivprabhakumari, is concerned it was also specifically overruled by a latter Division Bench

decision of the Bombay High Court in Madhukar Trimbakrao Ghisad Vs. Malti Madhukar Ghisad and Another, . Thus the Bombay case on which

the Division Bench of this court relied is no longer good law.

As regards Gopendra Nath Basu Malik Vs. Sm. Prativa Rani Basu Mallik, it is undoubtedly a single Bench decision but it is contrary to the

earlier Division Bench decision of the same High Court in Smt. Sobhana Sen Vs. Amar Kanta Sen, . The Mysore High Court is therefore the

solitary court which has consistently held the view that no appeal would lie against an interim order passed under the Act.

For the reasons that we have given above and in view of the general preponderance of the authorities in favour of the view that an appeal

against an order under S. 2-4 lies under S. 28 we express our respectful dissent from the view taken by a single Judge of the Mysore High Court.

On a careful consideration therefore, of the plain language employed in Section 28 of the Act and the authorities of almost all the High Courts

interpreting Section 28 as conferring a right of appeal, the conclusion is irresistible that an order passed by the District Judge in the instant case

refusing litigation expenses and alimony to the appellant was clearly appealable to the High Court and therefore the preliminary objection taken by

the counsel for the respondent that the appeal is not maintainable is completely devoid of force. Consequently we hold that the Division Bench

decision of this Court in AIR 1965 J & K 88 (Supra) was not correctly decided and is hereby overruled. We, therefore, answer the reference in

the affirmative and hold that the present appeal is maintainable. The appeal will now go back to the Division Bench which had made the reference

to the Full Bench for decision on merits.

Jaswant Singh, J.

I have had the advantage of going through the elaborate judgment prepared by the Hon'ble Chief Justice and find myself in complete agreement

with the views expressed by his Lordship after an exhaustive review of the authorities bearing on the matter.

Mian Jalal-Ud-Din, J.

I agree.