Report No. 59
9.30. Section 39.- Section 39 of the Special Marriage Act, reads:-
"All decrees and orders made by the court in any proceeding under Chapter V or Chapter VI shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction are enforced and may be appealed from under the law for the time being in-force:
Provided that every such appeal shall be instituted within a period of ninety days from the date of the decree or order."
This provision is in pari materia with section 28 of the Hindu Marriage Act. The words in the Hindu Marriage Act are "may be appealed from under any law for the time being in force". In the Special Marriage Act, the word used is 'the' instead of 'any'. But ',here is no substantial difference in the language of the two provisions.1
Under the Hindu Marriage Act2, an appeal lies against an interim order passed under section 24 of the Act, and similarly, it has been held3 that an appeal lies against an interim order under section 36, Special Marriage Act. The language of the section is, thus, defective, inasmuch as the same controversy could arise under this section as has arisen under the corresponding section in the Hindu Marriage Act. It should, therefore, be revised on the lines of the section in the Hindu Marriage Act, as proposed to be amended4.
1. See Maharaj Singh v. Uma Singh, AIR 1969 All 603 (604).
2. Sarla Devi v. Bahvan Singh, AIR 1969 All 601.
3. Maharaj Singh v. lima Singh, AIR 1969 All 603 (634).
4. See discussion as to section 28, Hindu Marriage Act.
9.31. The section in the Special Marriage Act does not exclude appeal on the point of costs-a limitation which is found in the Hindu Marriage Act1, and which should be incorporated in the Special Marriage Act also.
1. Section 28, H.M.A.
9.32. The section in the Special Marriage Act has a proviso laying down a period of limitation of ninety days. This should be reduced to 30 days1.
1. See discussion as to section 28, Hindu Marriage Act.