Report No. 59
8.36. Section 28.-
Under section 28, so far as is material, "all decrees and orders made by the Court in any proceedings under this Act may be appealed from under any law for the time being in force:
Provided that there shall be no appeal on the subject of cost only."
A controversy arose in the past with reference to this part of the section, the question being whether this section itself confers a right of appeal, or whether the reference to "any law for the time being in force" implies that a right of appeal must be sought in some other law. As the language of the section is not very clear on this point, and has been criticised judicially1 the matter requires examination. Almost all High Courts now take the view that the right is conferred by section 28. The case law on the subject is reviewed exhaustively in the Andhra Pradesh Full Bunch decision2 and in a recent Bombay case3.
1. For an analysis of orders see para. 8.38, infra.
2. Kutumbrao v. Sesharatnamamha, AIR 1967 AP 323 (328) (Full Bench).
3. Madhukar v. Malhi, (April 1973) 75 Born LR 311 (DB).
8.37. It would appear that most of the remedies conferred by the Hindu Marriage Act (to be pursued by a petition) being of a special character, it would be meaningless to expect that the right of appeal in relation to orders under the Act would be available in any other law. The Code of Civil Procedure1 could not have anticipated the subsequent passage of the Hindu Marriage Act. The narrower view would make it difficult to apply section 28. Similar language is used in the Indian Divorce Act2, and the uniform interpretation on that section is that Act itself creates the right of appeal3. The Special Marriage Act4, uses also similar language, and does not seem to have been interpreted differently from the provision in the Divorce Act. At the same time, it appears to us that an omnibus right of appeal against orders is not necessary, and is likely to delay the proceedings. Generally speaking, an appeal against orders of an interim nature should be excluded.
1. Section 104 and Order 43, C.P.C.
2. Section 55, Indian Divorce Act, 1969.
3. A. v. B., 1898 ILR 22 Born 612.
4. Section 39, Special Marriage Act, 1954.
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