S.C. Mohapatra, J.
1. This appeal by the wife arises out of an order in a proceeding under Section 9, Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').
2. Respondent filed an application for restitution of conjugal rights. The appellant disputed the application by filing a written statement and later filed an application for amendment of the written statement by incorporating counter-claim for maintenance at the rate of Rs. 300/- per month since the month of October, 1981. The total arrear claim was Rs. 6,900/- and the future claim was Rs. 18,000/- on which it was stated that court-fee payable was Rs. 2,009.25 paise. She was exempted from paying the court-fee under Section 18-A of the Court-fees Act. The trial court dismissed the application for restitution of conjugal rights which being valued notionally at Rs. 100A, appeal was preferred in the court of District Judge, Sambalpur registered as Title Appeal No. 14 of 1985 which is now pending. Trial court not having whispered a word about the counter-claim, the same was treated to have been refused and the wife filed the present appeal in this Court as the counter-claim was in respect of Rs. 24,900/-During pendency of this appeal, an application was filed for interim maintenance under Section 24 of the Act which was registered as Misc. Case No. 633 of 1985. While considering the application it was considered reasonable to direct the spouses to appear in person for an attempt to get them reconciled. As the appellant could not appear on account of paucity of funds, the respondent was directed to pay Rs. 150/- to Mr. J. P. Misra, the learned counsel for the appellant, for the journey expenses of the appellant. Thus, both the parties appeared today and I took up the matter in my chamber. After the reconciliation failed, I had to hear the application under Section 24 of the Act.
3. Mr. K. Patnaik submitted that a counter-claim of this nature is not maintainable in a proceeding under the Act. The appeal has been filed against the order of the trial court under Section 28 of the Act. Such appeal is not maintainable. Power under Section 24 of the Act can be exercised during pendency of proceeding under the Act. As the appeal cannot be maintainable under the Act, the application has no merit and the appeal should also be dismissed as not maintainable.
Mr. J. P. Misra, the learned counsel for the appellant, submitted that the counter-claim was filed under Section 23A of the Act and, therefore, the appeal is competent. He alternatively submitted that counter-claim in the written statement can be treated to be an application under Section 25 of the Act for permanent alimony in respect of which order appeal lies. Since a preliminary objection relating to maintainability of the appeal was raised, 1 have considered the same with consent of both the parties.
4. Appeal is a creature of the statute. The right of appeal under the Act is provided in Section 28. It reads as follows.
"28. Appeal from decrees and orders--(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceeding under this Act, under Section 25 or Section 26 shall, subject to the provisions of Sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decision of the Court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal u nder this section shall be preferred within a period of thirty days from the date of the decree or order."
On the face of the provision, an appeal is not provided for against an order under Section 23A. However, Section 23A is not an independent provision. It only authorises a respondent to claim any of the reliefs available under the Act which could have been claimed independently by a petition to be claimed in the proceeding. Therefore, an appeal under Section 28 of the Act would be entertainable against un order under Section 23A, if the same is in respect of the reliefs available under the Act, against which an appeal lies.
5. Section 23A reads as follows : --
"23A. Relief for respondent in divorce and other proceedings -- In any proceeding for divorce or judicial separation or restitution of conjugal rights the respondent may not only oppose the relief brought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground".
6. The counter-claim in. the written statement is as follows : --
''6(a). That the petitioner is liable to maintain the respondent which he has neglected to do. The respondent has no income of her own. So she is unable to maintain herself. The petitioner is a cooperative Inspector with a salary of Rs. 1,000/- (one thousand) per month. The respondent therefore claims Rs. 300/-(Rupees three hundred) per month as maintenance. She also claims arrears of maintenance since the month of October, 1981 at the above rate which comes to Rs. 6900/- (six thousand nine hundred). 6(b) That for purpose of court-fee and jurisdiction her claim is valued at Rs. 24,900/-(Twenty four thousand nine hundred), Rs. 18,000/- (eighteen thousand) being the amount which is five times the amount claimed to be payable for one year and Rs. 6,900/- (six thousand nine hundred) being the amount claiming arrears of maintenance. So a court-fee of Rs. 2,009.25 (two thousand nine and twenty-five paise) is payable on the claim. But the respondent claims exemption of court-fee under Section 18-A (eighteen(A)) of the Court-fees Act."
They are essentially for arrear and future maintenance. Under the Act there is no scope for recovery of arrear of maintenance. The language of the relief sought in the counterclaim extracted above indicates that the appellant exercised her right under the Hindu Adoptions and Maintenance Act, 1956 in respect of which a regular suit is entertainable and not a petition under the Act Therefore, the counter-claim was not entertainable by the trial court in the proceeding at the instance of the husband. The appeal not being in respect of any decree made under the Act is not entertainable.
7. The alternative submission of Mr. Mishra that the counter-claim can be treated to be one under Section 25 of the Act now requires consideration. Sub-section (1) which is material for the purpose reads as follows : --
"25. Permanent alimony and maintenance -- (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto on application made to it for the purpose by either the wife or the husband as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property of the applicant the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary by a charge on the immovable property of the respondent.
xxxx xxxx xxxx xxxx"
This section lays down that at the time of passing the decree or thereafter the Court is competent to pass an order for maintenance or support. This is to be on the basis of an application. Sections 9 to 13 and 23A use the word 'petition'. Sections 24 and 25 use the word 'application'. Thus, the Legislature made a distinction between a petition and an application. Section 25 does not envisage arrear of maintenance. This deals with the future. Moreover, the Legislature intends that the power under Section 25 is to be exercised on the basis of an application. Application to a Court requires proper fee to be paid. The mandatory provision of Section 6, Court-fees Act, provides that no Court shall receive a document which is not supported by proper fee. Written statement does not require any fee. The assertion is that court-fee of about Rs. 2,000/- is payable. All these factors indicate that the claim is not one under Section 25 of the Act Being a benevolent provision the prayer could have been considered liberally to convert the same to one Section 25 of the Act. This relief is available to the appellant even now before the trial court.
8. Merely because a prayer can be made subsequently to the same court would not defeat the right of appeal of a party. Therefore, it is to be considered whether this appeal is maintainable. An appeal lies against an order under Section 25 as provided in Section 28(2). An order under Section 25 of the Act envisages either refusal of the relief or grant of the same. The certified copy of judgment accompanying the memorandum of appeal does not breathe a word about it. Ground No. 2 clearly indicates that the claim has been completely ignored. When a Court has power to deal with an application subsequent to the decree in a proceeding, ignoring the same cannot be said to be an order, In the circumstances, there being no order under Section 25 of the Act, the appeal is not maintainable.
9. In the result, the appeal in this Court is not maintainable which is dismissed. There shall be no order as to costs. However, dismissal of the appeal will not bar any relief if such a right is available to the appellant.