TMI Blog1989 (3) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... regular civil appeal No. 436 of 1985 on 19.7.1985 before the IInd Additional District Judge, Nagpur. Before this appeal could be filed, the respondent husband married one Miss Sarita daughter of Laxmanrao Modak on 27.6.1985, and in the appeal filed by the appellant, the respondent raised a preliminary objection contending that after passing of the judgment and decree 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 solemnised 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 legal and valid and the consequence of this is that the appeal filed by the appellant was not tenable having been rendered infructuous. The IInd Additional District Judge, Nagpur vide his order dated 17.8.1985 allowed the objection of the respondent and dismissed the appeal as infructuous with a direction to the parties to bear their own respective costs. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prasad Srivastava and Anr. [1967]1SCR864 and Tejinder Kaur v. Gurmit Singh [1988]2SCR1098 . Although on the basis of these decisions what was contended was that the provisions of the Act have to be interpreted broadly. Learned Counsel also placed reliance on the decision in Vathsula v. N. Manoharan AIR1959Mad405 . Learned Counsel however, conceded that there are decisions in Mohanmurari v. Smt. Kusumkumari AIR1965MP194 , Jamboo prasad Jain v. Smt. Malti Prubha and Anr. AIR1979All260 and Pramod Sharma v. Smt. Radha AIR 1976 Pun 355 where the question of Section 15 in relation to a decree under Section 12 has been specifically considered and decided against the appellant, but learned Counsel contended that the scope and language of Section 15 coupled with the language of Section 28 has not been considered by any one of these courts. Learned Counsel for the respondent on the other hand contended that the language of Section 15 refers to marriage dissolved by decree for divorce whereas in the present case, the marriage was not dissolved by decree of divorce. The marriage was declared as nullity under Sections 11 and 12 of the Act. Sections 11 and 12 of the Act, according to the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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. Section 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 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 under this section shall be preferred within a period of thirty days from the date of the decree or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 great 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 Legislature so far as decrees under Section 13 are concerned wanted the 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 the respondent and held by some of the High Courts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond time the respondent made the appeal filed by the appellant infructuous, and the learned Judge placing reliance on the observations made in Chandra Mohini's case [1967]1SCR864 held: That is the principle of Smt. Chandra Mohim v. Avinash Prasad AIR 1967 SC 851. The principle laid down in that decision has general application. The Supreme Court pointed 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 the 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 [1988]2SCR1098 wherein the observations made in Chandra Mohini's case [1967]1SCR864 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 the petitioner could have presented a special leave petition within ninety days therefrom under Article 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact of the right of appeal occurring in Section 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 been 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 not sustainable. The detention of the learned Counsel for the appellant has to be accepted so far as this question is concerned. 10. 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 Section 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 the Limitation Act will not be applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose 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 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 the 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 prescribed in the Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Limitation 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 AIR1953Bom35 (supra) approved by the Supreme Court in Vidyacharan Shukla v. Khubchand [1964]6SCR129 (1102). Once the test is satisfied the provisions of Sections 3, 4 to 24, Limitation Act, 1963 would at once apply to the special law. The result is that the court hearing the appeal from the decree or order passed under the Hindu Marriage Act would under Section 3 of the Limitation Act have power to dismiss the appeal if made after the period of limitation of 30 days prescribed therefore by the special law. Similarly under Section 5 for sufficient cause it will have the power to condone delay. Likewise under Section 12(2) the time spent in obtaining a certified copy of the decree or order appealed from will be excluded. If it is so, Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
