Report No. 89
V. Section 29(.-Position Regarding Suit for Dower
29.24. Suits for dower.- At this stage, it is necessary to refer to the part of section 29(3), which excludes the applicability of the Limitation Act in regard to "a suit of proceeding under any law for the time being in force relating to marriage and divorce." In view of an Allahabad ruling1 on this sub-section, an amendment of section 29(3) seems to be needed. According to the Allahabad ruling, the Limitation Act, 1963, does not apply to a claim for dower made by a Muslim woman under the Muslim law of marriage and divorce, and is, by section 29(3), excluded from the purview of the Limitation Act.
The reasoning underlying the judgment, is as under. In the Indian Limitation Act, 1908, the exception was only in respect of proceedings under the Indian Divorce Act, and there were specific Articles 103-104 which prescribed the limitation period for a suit for dower. In the present Act, there are (the High Court has observed) no corresponding articles prescribing the period of limitation for a suit for dower. According to the Allahabad ruling, in view of the express provisions of section 29(3), nothing in the Limitation Act can bar the suit for dower.
1. Ahmadi Bibi v. Muhamed Mahoob, AIR 1979 All 374 (Deoki Nandan, J.).
29.25. Need for clarification.- This ruling raises an important point that needs clarification. So far as .we could ascertain, it was not the intention of the Legislature that the Limitation Act, 1963, should not apply to claims for dower. The exclusion clause in section 29(3) is not really intended to exclude such claims from the purview of the Act. Its object is to exclude matrimonial litigation proper commenced under some statute, i.e. statutory proceedings for divorce, judicial separation and the like, which themselves terminate or suspend the legal bond of marriage.
The reason for not making the Limitation Act applicable to matrimonial causes was presumably that these statutes themselves have their own in-built doctrines such as condonation, laches, and the like, which can be taken into account by the court. Subject to these doctrines, the court has a discretion as to the grant of matrimonial relief, in the exercise of which it can take into account the conduct of the parties, the interests of the children and other relevant factors.
These considerations have no application, however, to a Muslim wife's claim for dower, which is a purely monetary claim that can be decided on fairly precise rules. It, therefore, stands on a different footing from say, a petition for divorce or judicial separation is regard to which (as stated above) special considerations of ladies, discretion and the like apply.
29.26. We need not, pause to discuss if the Allahabad ruling mentioned above is correct, on the present wording of section 29(3). But obviously the position resulting therefrom needs to be get right. The point being one of recurring frequency, some step needs to be taken to ensure that a claim for dower does not remain totally outside the Act.
29.27. Law Commission recommendation departed from.- A few words appear to be needed about the changed wording in the present Act (in contrast with the earlier Act). The difficulty seems to have been created because the Act goes beyond what the Law Commission recommended. Section 29(3) of the Act of 1908 made the Act inapplicable to suits under the Indian Divorce Act, 1869. Commenting on this, the Law Commission, in its earlier Report, observed as under.-
"There are other Acts like the Parsi Marriage Act and the Special Marriage Act dealing with marriage and divorce. The reason for excluding proceedings under the Divorce Act, 1869, are equally applicable to proceedings under these other Acts. We recommend that the sub-section may be amplified to include all Acts relating to matrimonial causes. The Acts to be included may be specified when drafting the amendment to the section."
29.28. The draft provision suggested in the Report of the Law Commission to give shape to its recommendation as regards the relevant part of section 29 of the Act of 1908 was as under.-
"25. Savings.- (1) Nothing in this A.-
(b) shall apply to proceedings under any law for the time being in force relating to marriage and divorce (Acts to be specified in the Bill)."
Thus, the Commission's proposal (i) was confined to Acts and (ii) further was confined to Acts to be specified. However, the section as enacted, provides as under.-
"(3) Save as otherwise provided in any law for the time being in force to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law."
1. Law Commission of India, 3rd Report, (Limitation Act, 1908), clause 25(1)(b).
2. Section 29(3), Limitation Act, 1963.
29.29. The section, as enacted, does not specify the enactments which are to be excluded. Presumably, it was thought that it would be too cumbersome to enumerate the various enactmen.-there were at least six Central Acts on the subject and there might be State or Provincial Acts, including even some enactments of princely States.1
1. Cf. Maniben v. Ramanbhai, (1979) 20 Guj LR 924 (Baroda Hindu Nibandh Act, 1937, section 152).
29.30. Residuary article.- Incidentally, it may be useful to mention here that the Law Commission (in the earlier Report) contemplated that suits for dower would fall under the residuary article, (i.e. Article 38 as proposed in the 3rd Report to replace Article 120 of the Act of 1908 corresponding to Article 113 of the present Act). The Report observed.-
"Articles 103 and 104 which relate to suit for dower might be left to be governed by the residuary article. All these articles may therefore be deleted."
1. Law Commission of India, 3rd Report (Limitation Act, 1963), para. 157; see also ibid., Article 38.
29.31. The Law Commission did not contemplate that a suit for dower should be totally outside the purview of the Limitation Act.
29.32. Recommendation.- Now that the point has arisen, it seems proper to revise section 29(3), so as to define its scope more precisely than at present. We recommend that the following possible redraft should be considere.-
"29(3). Save as otherwise provided in any enactment for the time being in force providing for the dissolution of a marriage by a decree of divorce, or for the grant of other matrimonial relief, nothing in this Act shall apply to any suit or other proceeding under any such enactment."
As to French and Portuguese laws, see above.1 As to Travancore Act also, see above.2
1. Para. 29.17, supra.
2. Para. 29.23, supra.
29.33. Section.-transitional provisions.- Section 30 makes transitional provisions for cases where the period of limitation prescribed by the present Act is shorter than that prescribed by the earlier Act of 1908, which stands repealed by the present Act. The section needs no change.
29.34. Section.-Pending suits.- Section 31 makes certain provisions for proceedings for which the period of limitation prescribed by the earlier Act has already expired, and also for proceedings pending at the commencement of the present Act. The section needs no change.
29.35. Section.-Repeal.- Section 32 repeals the Act of 1908, and needs no change.