Smt. Lata
Kamat Vs. Vilas [1989] INSC 106 (29 March 1989)
Oza,
G.L. (J) Oza, G.L. (J) Pandian, S.R. (J)
CITATION:
1989 AIR 1477 1989 SCR (2) 137 1989 SCC (2) 613 JT 1989 (3) 48 1989 SCALE
(1)867
ACT:
Hindu
Marriage Act 1956: Sections 11, 12, 13 and 28---Decree of nullity and decree of
divorce--Distinction between--Marriage declared nullity--Wife filing
appeal--Husband marrying after trial Court decree but before the filing of the
appeal--Appeal whether rendered infructuous Indian Limitation Act 1963: Sections
4, 24 and 29--Applicability of provisions of Act to an appeal under section 28
Hindu Marriage Act 1956--Time required for obtaining copies of judgment to be
excluded.
HEAD NOTE:
A
decree in favour of the respondent-husband was grant ed by the Trial Court
declaring his marriage with the appellant to be a nullity under section
12(1)(d) of the Hindu Marriage Act, 1956 on the ground that the wife at the
time of marriage was pregnant by some one other than the respondent.
In the
appeal filed by the appellant, the respondent raised a preliminary objection
contending that the appeal was n ot tenable and had been rendered infructuous
because he h ad re-married before the filing of the appeal. The Appellate Court allowed the preliminary objection
and dismissed t he appeal, and the High Court dismissed the second appeal.
Before
this Court it was contended on behalf of t he appellant that
(i) the
word 'divorce' has been used in section 15 in a broader sense and, in view of
the language used in that section, it is not possible to distinguish between a
decree of nullity under section 11 or 12 and decree of divorce under section
13;
(ii)
the interpretation put by the lower courts, on the basis of judgments of so me
of the High Courts, that section 15 will not apply to a decree under section 12
but would only apply when there is a decree under section 13, does not appear
to be correct as the scope and language of section 15 coupled with the language
of section 28, had not been considered by any one of these courts; and
(iii)
even if it is held that section 15 applies to a decree under section 12, the
respondent h ad re-married after the period of limitation had expired, as the
provisions of the Limitation Act will not apply in vi ew of the section 29(3)
of that Act, and therefore the period 138 for obtaining copies of the judgment
excluded under secti on 12 clause will not be available to the appellant.
Allowing
the appeal, it was,
HELD:
(1) It is no doubt true that section 12 and section 13 have different phraseology.
In section 12 it is said that the "marriage may be annulled by a decree of
nullity" whereas in section 13, the phraseology used is "dissolved by
a decree of divorce". Though in substance the meaning of t he two may be
different under the circumstances and on the facts of each case, but the legal
meaning or the effect, is that by intervention of the court the relationship
between two spouses has been severed either in accordance with t he provisions
of section 12 or in accordance with the provisions of section 13. Probably it
is because of this reas on that the phrase 'decree of nullity' and 'decree of
divorce' have not been defined. [143A-B] (2) Under the provisions of section 28
all decrees ma de by the Court in any proceeding under this Act are appealable.
In order to provide an appeal against all decrees section 28 has used a very
wide terminology which includes decrees under sections 11, 12 and 13, and so
far as this is concerned it could hardly be contested as the language of
section 28 itself is so clear. [143G-H] (3) If it is accepted that section 15
will not apply to cases when a decree is passed under section 11 or 12, it will
mean that as soon as a decree is passed the party aggrieved may appeal but the
other party by remarriage would make the appeal infructuous and therefore the
right of appeal of one of the parties to the decree under section 28 will be
subject to the act of the other party in cases where decree is passed under
section 11 or 12. But if it were s o, the Legislature would have provided a
separate provision f or appeal when there is a decree under section 13 and a
different provision for appeal when there is a decree under section 11 or 12 as
the right of appeal against a decree under section 11 or 12 could only be a
limited right subject to the desire of the other party. [144H; 145A-B] (4) The
Legislature in its wisdom had enacted section 28 conferring a right of appeal
which is unqualified, unrestrictive and not depending on the mercy or desire of
a party against all decrees in any proceeding under the Ac t.
Hence,
the only interpretation which could be put on t he language of section 15
should be that which will be consistent with section 28. Therefore, the phrase
'marriage h as been dissolved 139 by a decree of divorce' in section 15 will
only mean where the relationship of marriage has been brought to an end by the
process of court by a decree, which will include a decree under section 11, 12
or 13. The view taken by t he courts below is accordingly not sustainable.
[145C-D; 147F ] Chandra Mohini Srivastava v. Avinash Prasad Srivastava
Anr.,
[1967] 1 SCR 864; Tejinder Kaur v. Gurmit Singh, A IR [1988] SC 839; Vathsala
v. N. Manoharan, AIR (1969) Madr as 405, referred to.
Mohanmurari
v. Srnt. Kusumkumari, AIR (1965) M.P. 19 4; Jamboo Prasad Jain v. Smt. Malti Prabha,
AIR 1979 Allahab ad 260; Pramod Sharma v. Smt. Radha, AIR (1976) Punjab 35 5, overruled.
(5) So
far as clause (3) of Section 29 of the Limitati on Act is concerned, the impact
of it will be that the provisions of the Limitation Act will not apply so far
as a suit or an original proceeding under the Hindu Marriage Act is concerned,
but clause (3) will not govern an appeal. [149E ] (6) To an appeal under
section 28 of the Hindu Marriage Act, provisions contained in section 12 clause
(2) of t he Limitation Act will be applicable, and therefore, the time required
for obtaining copies of the judgment will have to be excluded for computing the
period of limitation for appeal. [149G-H] Chander Dev Chadha v. Smt. Rani Bala,
AIR (1979) Delhi 22; Smt. Sipra Dey v. Ajit Kumar Dey, AIR (1988) Cal 28 and Kantibai
v. Kamal Singh Thakur, AIR (1978) M.P. 245, r e- ferred to. & CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 708 of 1988.
From
the Judgment and Order dated 20.2. 1987 of t he Bombay High Court in S.A. No.
282 of 1985.
Mrs. Shyamla
Pappu, K.K. Rai and Mrs. Indira Sawhney f or the Appellant.
G.L. Sanghi
and A.K. Sanghi for the Respondent.
The
Judgment of the Court was delivered by OZA, J. This appeal after leave has been
filed by the appe l- lant 140 wife arising out of a decree under Section 12(1)(d)
of t he Hindu Marriage Act (hereinafter referred to as the 'Act'), a decree
declaring the marriage a nullity.
The
respondent husband instituted a petition on 7th March, 1984 for a declaration
that the marriage of t he respondent with the appellant wife was a nullity
under sub- section (1) sub-clause (d) of section 12 of the Act on t he ground
that appellant, the wife at the time of marriage with the respondent was
pregnant by some one other than t he respondent. The appellant wife contested
the allegations and ultimately the IIIrd Joint Civil Judge, Senior Division Nagput
granted a decree in favour of the respondent by h is judgment dated 3rd May, 1985 declaring the marriage to be a
nullity.
The
appellant wife filed a regular civil appeal No. 4 36 of 1985 on 19.7.1985 before
the IInd Additional District Judge, Nagput. Before this appeal could be filed,
the respondent husband married one Miss Sarita daughter of Laxma n- rao Modak
on 27.6.1985, and in the appeal filed by t he appellant, the respondent raised
a preliminary objecti on contending that after passing of the judgment and decr
ee dated 3.5.1985 by the trial court he has married Sarita daughter of Laxmanrao
Modak on 27.6.1985. It was further alleged in the application that this
marriage was solemnis ed on 27.6.1985 when there was no impediment against the
respondent husband which could come in his way for contracting this marriage as
the parties were relegated to the position as if they were not married and
therefore this marriage performed on 27.6.1985 of respondent with Sarita was
leg al and valid and the consequence of this is that the appeal filed by the
appellant was not tenable having been render ed infructuous. The IInd
Additional District Judge, Nagpur vi de
his order dated 17.8.1985 allowed the objection of t he respondent and
dismissed the appeal as infructuous with a direction to the parties to bear
their own respective costs.
Against
this the appellant preferred a second appeal before the High Court. The High
Court by its judgment dated 20.2.1987 dismissed the appeal holding that as the
appeal was filed by the appellant after the re-marriage of t he respondent it
has become infructuous. The learned Judge al so dismissed the application for
maintenance pendent elite and aggrieved by this judgment of the High Court
after obtaining leave this appeal is filed in this Court.
It was
contended by learned counsel for the appellant that the language of Sec. 15
clearly goes to show that it refers to a marriage 141 which has been dissolved
and it also talks of fight of appeal against the decree. In view of this
language used in Sec. 15 it is not possible to distinguish between a decree of
nullity under Section 11 or 12 and decree of divorce under Section 13. It was contended
that the word 'divorce' has been used in this provision in a broader sense
indicating that where the marriage is dissolved or the relationship is brought
to an end by decree of court whether it is by declaring the marriage invalid or
dissolving it by a decree but result is the same and it was contended that it
is because of this that in this Act there is neither any specific definition
provided for the term 'divorce' or a decr ee of divorce. It was also contended
that when language of Section 15 refers to a fight of appeal will have to look
to the provision providing for an appeal and Sec. 28 of the A ct which provides
for appeals against all decrees made by t he court in proceedings under this
Act. It was therefore co n- tended that the interpretation put by the lower
court on t he basis of judgments of some of the High Courts that Sec. 15 will
not apply to a decree under Sec. 12 but would only apply when there is a decree
under Sec. 13 does not appear to be the correct view and on this basis it was
contended by learned counsel for the appellant that the courts below we re
wrong in coming to the conclusion that the appeal had become infructuous
because the respondent has married a second time.
Learned
counsel also referred to meaning of the word 'divorce' in Webster's Third New
International Dictionary and Shorter Oxford English Dictionary. Learned counsel
in support of her contentions referred to the two decisions of this Court in
Chandra Mohini Srivastava v. Avinash Pras ad Srivastava & another, [1967] 1
SCR 864 and Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839 Although on the
basis of the se decisions what was contended was that the provisions of t he
Act have to be interpreted broadly. Learned counsel al so placed reliance on
the decision in Vathsala v. N. Manohara n, AIR 1969 Madras 405. Learned counsel
however, conceded that there are decisions in Mohanmurari v. Smt. Kusumkumari,
A IR 1965 M.P. 194;. Jamboo Prasad Jain v. Smt. Malti Prabha and Anr., AIR 1979
Allahabad 260 and Pramod Sharma v. Smt. Radha,
AIR 1976 Punjab 355 where the question of Section 15 in relation to a decree
under Sec. 12 has been specifical ly considered and decided against the
appellant, but learn ed counsel contended that the scope and language of Sec.
15 coupled with the language of Sec. 28 has not been consider ed by any one of
these courts. Learned counsel for the respon d- ent on the other hand contended
that the language of Sec.
15
refers to "marriage dissolved by decree for divorce" where as in the
present case, the mar- 142 riage was not dissolved by decree of divorce. The
marriage was declared as nullity under Sections 11 and 12 of the Ac t.
Sections
11 and 12 of the Act, according to the learn ed counsel, talk of annulment of
marriage "by decree of nullity" and it was contended that it is
because of this that t he various High Courts have taken a view that Sec. 15
will not apply to cases where a marriage is annulled by a decree of nullity in
accordance with Sections 11 or 12 of the Ac t.
Learned
counsel however frankly conceded that so far as Se c.
28 is
concerned, the language is so wide that an appeal will lie even against a
decree under Section 11 or 12 and if an appeal lies under Sec. 28 even against
the order or a decree passed under Sections 11 or 12, the phrase 'if there is
such a right of appeal, the time for filing has expired without an appeal
having been presented' are to be given its meaning, it would be clear that Sec.
15 also will apply to decrees by which the marriage is either dissolved or a n-
nulled i.e. decrees which are passed under Sec. 12 or under Sec. 13. Learned
counsel in face of this raised another contention pertaining to the application
of the Limitation Act which we will examine later.
In order
to understand the meaning of Sec. 15 of the A ct it would be better if we first
notice that the words 'decree for divorce' or 'decree for nullity' has not been
defined in any one of the provisions of this Act. Sec. 12 clause (1) of the Act
reads:
"Any
marriage solemnized, whether before or after the commencement of this Act,
shall be voidable and may be annulled by a decree of nullity on any of the
following grounds namely,-- Similarly Sec. 13 clause (1) of the Act reads:
(1)
Any marriage solemnized, whether before or after t he commencement of this Act
may, on a petition presented by either the husband or wife, be dissolved by a
decree of divorce on the ground that the other party,-- 143 It is no doubt true
that these two sections have different phraseology. In section 12 it is said
that the marriage be annulled by a decree of nullity whereas in Section 13, t
he phraseology used is "dissolved by decree of divorce" but in
substance the meaning of the two may be different under t he circumstances and
on the facts of each case but the leg al meaning or the effect is that by
intervention of the court the relationship between two spouses has been severed
either in accordance with the provisions of Section 12 or in a c- cordance with
the provisions of Section 13. Probably it is because of this reason that the
phrase 'decree of nullity' and 'decree of divorce' have not been defined. Sec.
28 of the Act reads:
"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 applicable as decrees of the court made in the exercise of its original civ il
jurisdiction, and every such appeal shall lie to the Court to which appeals
ordinarily lie from the decisions of t he court given in the exercise of its
original civil jurisdi c- tion.
(2)
Orders made by the Court in any proceeding under th is Act, under Section 25 or
Section 26 shall, subject to t he provisions of sub-section (3), be appealable
if they are n ot interim orders, and every such appeal shall lie to the cou rt
to which appeals ordinarily lie from the decision of t he Court given in
exercise of its original civil jurisdiction ;
(3)
There shall be no appeal under this section on t he subject of costs only.
(4)
Every appeal under this section shall be preferr ed within a period of thirty
days from the date of the decree or order. ' ' Under this provision all decrees
made by the Court in any proceeding under this Act are appealable. Apparently any
proceeding under this Act will refer to a proceeding instituted under Section
13 or a proceeding instituted under Sections 11 or 12 as Sections 11 or 12
talks of 'decree f or nullity' and Section 13 talks of 'decree for divorce' but
in order to provide an appeal against all decrees Section 28 has used a very
wide terminology which include decrees under Sections 11, 12 and 13 and so far
as this is concerned it could hardly be contested as the language of Section 28
itself is so clear. It is in this context that we 144 analyse the language of
Section 15. It reads:
"Divorced
persons when may marry again-When a marriage h as been dissolved by a decree of
divorce and either there is no fight of appeal against the decree or, if there
is such a fight of appeal, the time for appealing has expired without an appeal
having been presented or an appeal has been presented but has been dismissed,
it shall be lawful for either party to the marriage to marry again."
Before we examine the phraseology 'dissolved by decree of divorce' it would be
worthwhile to examine the remaining part of this provision, especially 'if
there is such a fig ht of appeal, the time for appealing has expired without an
appeal having been presented or an appeal has been present ed but has been
dismissed'. If we give narrow meaning to t he term 'dissolved by decree of
divorce' as contended by t he learned counsel for the respondent, it will mean
that if it is a decree under Sec. 13 then either party to the proceeding have
to wait till the period of appeal has expired or if the appeal is filed within
limitation till the appeal is disposed of and before that it will not be lawful
for either party to the marriage to marry again. The phrase 'either party to
the marriage' if is co-related with the first part of the Section, marriage which
has been dissolved by decree of divorce will indicate that what was provided in
this Section was that when a relationship of marriage is dissolved by decree of
court and either no appeal is filed or if filed, is dismissed then either party
to the marriage which has been dissolved by the process of law by a decree are
free to marry again. The only words on the basis of which the narrow meaning
has been given to this Section by some of the High Courts is on the basis of
the Words 'decree of divorce', it could not be doubted that where the marriage
is dissolved under Sections 11, 12 or 13 by grant of a decree of nullity or
divorce, the relationship is dissolved or in any way is brought to an end and
it would be significant that if the language of Section 15 is interpreted in
the light of Section 28 which provides for appeal and confers a right of appeal
on either party to proceedings which culminate into a decree bringing an end to
the relationship of marriage then we will have to infer that the Legislatu re
so far as decrees under Section 13 are concerned wanted t he right of appeal to
survive but in decrees under Section 11 or 12 the Legislature wanted the right
of appeal to be subject to the will of the other party. As it is apparent that
if what is contended by the learned counsel for t he respondent and held by
some of the High Courts is accept ed that Sec. 15 will not apply to cases when
a decree is pass ed under Sec. 11 or 12 it will mean that as 145 soon as a
decree is passed the party aggrieved may appeal but the other. party by
remarriage would make the appeal infructuous and therefore the right of appeal
of one of t he parties to the decree under Sec. 28 will be subject to t he act
of the other party in cases where decree is passed under Sections 11 or 12 but
if it were so, the Legislature would have provided a separate provision for
appeal when there is a decree under Section 13 and a different provision for
appeal when there is a decree under Sections 11 or 12 as t he right of appeal against
a decree under Sec. 11 or 12 could only be a limited right subject to the
desire of the other party. The Legislature in its wisdom has enacted Sec.
28
conferring a right of appeal which is unqualified, unrestrictive and not
depending on the mercy or desire of a party against all decrees in any
proceeding under this A ct which will include a decree under Sections 11, 12 or
13 and therefore the only interpretation which could be put on t he language of
Sec. 15 should be which will be consistent with Section 28. This phrase
'marriage has been dissolved by decree of divorce' will only mean where the
relationship of marriage has been brought to an end by the process of cou rt by
a decree.
It is
plain that the word 'divorce' or 'decree of d i- vorce' have not been defined
in this Act. The meaning of t he word 'divorce' indicated in Shorter Oxford
English Dictionary reads:
"Divorce--1.
Legal dissolution of marriage by a court or other competent body, or according
to forms locally reco g- nized. 2. Complete separation; disunion of things
close ly united ME. 3. That which causes divorce 1607." Similarly the
meaning of the word 'divorce' as indicated in Webster's Third New International
Dictionary reads:
"Divorce--1:
a legal dissolution in whole or in part of a marriage relation by a court or
other body having competent authority.
In Vathsala's
case the Court had occasion to consider t he effect of an application for
setting aside an exparte decree which was granted under Sec. 12 and it was
contended that while the application by the husband for setting aside the exparte
decree was pending the wife contracted remarriage.
Will
not remarriage have the effect of making the application to set aside exparte
decree infructuous? More or less a similar question is in the present case
where it has be en held that by marrying the second time the respondent ma de
the appeal filed by the 146 appellant infructuous, and the learned Judge
placing reliance on the observations made in Chandra Mohini's case held:
"That
is the principle of Smt. Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581. The
principle laid down in that decision has general application. The Supreme Court
point ed out that on dissolution of marriage, a spouse can lawfully marry only
when there is no right of appeal against the decree dissolving the marriage or
if there is a right of appeal, the time for filing of an appeal has expired or
t he appeal presented has been dismissed." The question about an appeal to
the Supreme Court has also- been considered in a recent decision of this Court
in Tejinder Kaur's case wherein the observations made in Chandra Mohini's case
have been quoted and it is held that:
"In
view of this, it was incumbent on the respondent to have enquired about the
fate of the appeal. At any rate, the High Court having dismissed the appeal on
16th July, 1986 t he petitioner could have presented a special leave petition
within ninety days there from under Art. 133(c) of the Limitation Act, 1963
i.e. till 14th
September, 1986. Till
that period was over, it was not lawful for either party to marry again as
provided by S. 15. It was incumbent on the respondent, as observed in Lila
Gupta's case (ILR 1969) 1 All. 9 2) to have apprised himself as to whether the
appeal in t he High Court was still pending; and if not, whether the period for
filing a special leave petition to this Court had expired. We must accordingly
overrule the views expressed in Chandra Mohini's, AIR 1967 SC 581 and Lila
Gupta, cases (I LR 1969(1) All 92). We wish to add that in the sub sequent
decision in Lila Gupta the Court while dealing with t he effect of deletion of
the proviso observed:
The
net result is that now since the amendment parties whose marriage is dissolved
by a decree of divorce can contract marriage soon thereafter provided of course
t he period of appeal has expired.
The
Court adverted to the word of caution administered by Wanchoo, J. in Chandra Mohini's
case and reiterated:
147
"Even though it may not have been unlawful for t he husband to have
marriage immediately after the High Court 's decree for no appeal as of right
lies from the decree of t he High Court to this Court, still it was for the
respondent to make sure whether an application for special leave had be en
filed in this Court and he could not, by marrying immediately after the High
Court's decree, deprive the wife of t he chance of presenting a special leave
petition to this Court.
If a
person does so, he takes a risk and could not ask t he Court to revoke the
special leave on that ground," It is no doubt true that in these two
decisions, this Court was considering the impact of an appeal against a decree
under Section 13 itself and not a decree under Section 11 or 12 but as
indicated earlier if the impact of the phraseology 'fight of appeal' occurring
in Sec. 15 is to be examined in the light of language of Sec. 28 as discussed
earlier the re will be no difference in respect of the fight of appeal whether
the decree is under Sections 11, 12 or 13.
The
decisions of the High Court on which reliance is placed by courts below and the
learned counsel for t he respondent are: i) Mohanmurari ii) Jam boo Prasad
Jain, and Pramod Sharrna. In none of these decisions the impact of t he fight
of appeal occurring in Sec. 15 in view of the language of Section 28 where the right
of appeal is conferred, has been considered. In our opinion, therefore the view
taken by the High Court is not correct. What Section 15 means when it uses the
phrase 'has been dissolved by decree of divorce '? It only means where the
relationship of marriage has be en brought to an end by intervention of court
by a decree, this decree will include a decree under Sections 11, 12 or 13 and therefore
the view taken by all the courts below is n ot sustainable. The contention of
the learned counsel for t he appellant has to be accepted so far as this
question is concerned.
Learned
counsel for the respondent contended that as Section 28 sub-clause (4) of the
Act provides for the limitation for preferring an appeal in view of Sec. 29 clause
(3). Provisions of Limitation Act will not apply and if they do not apply as
the trial court disposed of 'the matter by a decree dated 3.5.1985 the period
of limitation for appeal could only be upto 3.6.1985 as the period for obtaining
copies as contemplated under Section 12 clause (2) of t he Limitation Act will
not be applicable and therefore even if it is held that under Sec. 15 the
respondent had to wait till the period of limitation for appeal expires 148 as
he entered into a marriage on 27.6.1985 it was clearly after the period of limitation
has expired and therefore this marriage apparently made the appeal filed by the
appellant infructuous. It is not in dispute that if the period for obtaining
copy of the judgment and decree is computed as contemplated in Section 12
clause (2) of the Limitation Ac t, the appeal filed by the appellant before the
first appellate court was within the time and if Section 12 clause 2 is he ld
applicable then this marriage which the respondent perform ed on 27.6.1985
could not be said to be a marriage which he w as entitled to perform in view of
language of Section 15 and therefore it could not be said that this marriage
render ed the appeal filed by the appellant infructuous. Learn ed counsel for
the respondent mainly placed reliance on t he language of Sec. 29 clause 3 of
the Limitation Act where as learned counsel appearing for the appellant
contended that Sec. 29 clause 3 talks of suit or proceedings and therefore the
phrase 'proceedings' used in clause 3 of Sec. 29 could only refer to suits or
other original proceedings and it will not apply to appeals as is very clear
from the definition of 'suit' as defined in Section 2(L) of the Limitation Act.
It was therefore contended that the provisions of t he Limitation Act will be
applicable to appeals under Sec. 28 of the Act. Learned counsel for the
appellant placed reliance on the decisions in Chander Dev Chadha v. Smt. Ra ni Bala,
AIR 1979 Delhi 22; Smt. Sipra Dey v. Ajit Kumar De y, AIR 1988 Calcutta 28 and Kanti-bai
v. Karnal Singh Thaku r, AIR 1978 M.P. 245.
Section
2(L) of the Limitation Act defines the 'suit'.
It
reads:
"suit"
does not include an appeal or an application".
It
clearly enacts that suit does not include an appeal or an application. Sec. 29
of the Limitation Act reads:
"29.
Savings (1) Nothing in this Act shall affect Section 25 of the Indian Contract
Act, 1872.
(2)
Where any special or local law prescribes for any suit, appeal or application a
period of limitation different from the period prescribed by the Schedule, the
provisions of Section 3 shall apply as if such period were the period
prescribed by the Schedule and for the purpose of determining any period of
limitation prescribed for any suit, appeal or application by any special or
local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply
only insofar as, and to the extent to which, they are not 149 expressly
excluded by such special or local law.
(3)
Save as otherwise provided in any law for the time being in force with respect
to marriage and divorce, nothing in this Act shall apply to any suit or other
proceeding under any such law.
(4)
Sections 25 and 26 and the definition of 'easement' in Section 2 shall not
apply to cases arising in the territories to which the Indian Easement Act,
1882, may for t he time being extend." Clause (2) of this Section provides
that where the limitation provided by the special or local law is different from
the period prescribed by the Schedule, the provisions of Section 3 will apply.
In the Hindu Marriage Act, the period of appeal is prescribed. In the schedule
under the Limitation Act, there is no provision providing for an appeal under
the Hindu Marriage Act. Thus the limitation prescribed under the Hindu Marriage
Act is different and is not pr e- scribed in the Schedule. Thus the provisions
of Section 3 shall apply and therefore it is clear that to an appeal or
application the provisions contained in Sections 4 to 24 shall apply, so far
and to the extent to which they are not expressly excluded by the special or
local law and clause (3) of this Section provides that the provisions of this A
ct shall not apply to any suit or other proceedings under any marriage law. It
is therefore clear that so far as clause (3) is concerned, the impact of it
will be that the provisions of the Limitation Act will not apply so far as a suit
or an original proceeding under the Act is concerned but clause (3) will not
govern an appeal.
The
Schedule in the Limitation Act do not provide for an appeal, under the Hindu Marriage
Act but it is only provided in clause (4) of Sec. 28 of the Hindu Marriage Act.
Thus t he limitation provided in clause (4) of Sec. 28 is different from the
Schedule of the Limitation Act. Accordingly to clause (2) of Sec. 29,
provisions contained in Sections 4 to 24 will be applicable unless they are not
expressly excluded. It is clear that the provisions of the Act do not exclude
operation of provisions of Sections 4 to 24 of t he Limitation Act and
therefore it could not be said that the se provisions will not be applicable.
It is therefore clear that to an appeal under Section 28 of the Hindu Marriage
Act, provisions contained in Section 12 clause (2) will be applicable,
therefore the time required for obtaining copies of the judgment will have to
be excluded for computing t he period of limita- 150 tion for appeal. A
Division Bench of Delhi High Court in Chandra Dev Chadha's case held as under:
"The
Hindu Marriage Act is a special law. That this "special law"
prescribes" for an appeal a period of limitation is also evident. The
period of limitation is 30 days. It is a period different from that prescribed
in the First Schedule to the Limitation Act, 1963. But when we turn to the Fir st
Schedule we find there is no provision in the First Schedule for an appeal
against the decree or order passed under the Hindu Marriage Act. Now it has
been held that the test of a "prescription of a period of limitation
different from t he period prescribed by the First Schedule" as laid down
in S. 29(2), Limitation Act, 1963 is satisfied even in a ca se where a
difference between the special law and Limitati on Act arose by omissions to
provide for a limitation to a particular proceeding under the Limitation Act,
see, Canara Bank, Bombay v. Warden Insurance Co. Ltd. Bombay, AIR 19 53 Bom 35
(supra) approved by the Supreme Court in Vidyachar an Shukla v. Khubchand, AIR
1964 SC 1099 (1102).
Once
the test is satisfied the provisions of Ss, 3, 4 to 24, Limitation Act, 1963
would at once apply to t he special law. The result is that the court hearing
the appeal from the decree or order passed under the Hindu Marriage A ct would
under S. 3 of the Limitation Act have power to dismi ss the appeal if made
after the period of limitation of 30 days prescribed thereof by the special
law. Similarly under S. 5 for sufficient cause it will have the power to condone
delay. Likewise under S. 12(2) the time spent in obtaining a certified copy of
the decree or order appealed from will be excluded. If it is so, S. 12(2) of
the Limitation Act is attracted, and the appellants in all the three appeals will
be entitled to exclude the time taken by them for obtaining certified copy of
the decree and order. The appeals are, therefore, within time." Similar is
the view taken by the Calcutta High Court in Smt. Sipra Dey's case and also the
M.P. High Court in Kantibai 's case. It is therefore clear that the contention
advanced by the learned counsel for the respondent on the basis of t he Limitation
Act also is of no substance.
151
Consequently the appeal is allowed. The judgment passed by the High Court as
well as by the first appellate court is set aside. We remand the matter back to
the first appellate court as that court had disposed of the appeal treating it
to have been rendered infructuous. We therefore direct that the learned lind
Additional District Judge, Nagpur before
whom the appeal was filed, will hear the appeal on merits and dispose it of in
accordance with law.
A
suggestion was made by the counsel for the appellant about some tests and willingness
of the appellant for getting those tests performed which could be used as
addition al evidence in respect of the paternity of the child born to the
appellant which has been made a ground for declaration of marriage as nullity.
Without expressing any opinion, it would be appropriate for the lower appellate
court to consider the matter if parties approach about additional evidence. The
appallant shall be entitled to costs of this appeal. Costs quantified at
Rs.2500.
R.S.S.
Appeal allowed.
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