Appeal
Ramakrishnan.V
(Querist) 08 November 2010
This query is : Resolved
It was discussed about a few years back what is the forum of appeal for decrees passed by a court under the Hindu Marriage Act of 1956. It has been stated of now, the legislators have settled the dispute that the forum of appeal is only High Court, which is not by direct statement but by implications. Can anyone clarify me this aspect by which legislation it has been done?
Ramakrishnan.V
s.subramanian
(Expert) 08 November 2010
The court which is empowered to deal with the matrimonial cases under the HMA,1955 (not 1956) at the first instance is the District court or the Principal civil court of original jurisdiction having territorial jurisdiction over that area. The next higher court is only the High Court. that is why the appeals are file in the High Court.
Ramakrishnan.V
(Querist) 08 November 2010
Respected Sir,
Every court that exercises jurisdiction under the Hindu Marriage Act of 1955(Act No. 25 of 1955) is a District Court, to which alone the petition is to be presented. Hence, it is a statutory fiction created by law and the courts have to abide by this fiction. Unfortunately the actions of the High Courts is only de hors legislation and the appeal will lie only to the High court and not to the District court, which I have specifically stated in my question. There is a specific judgement of the Supreme Court of India decision which also hold that the appeal will lie to the High Court, which I am told of but I do not know the judgement. Consequently the legislators have amended the act in consonance. Hence, I need clarification on this point.
Thanks for the answer but I am constrained to say that your are not correct because what I needed was the law made by the legislators that by implications has categorically settled the issue that the appeal lies to High Court because in various states it has been held the first appeal lies to the district court where as in certain states it has been held to be to the High Court. In Tamilnadu it is a fact that first appeal is made only at the District Court
Ramakrishnan. V
Chanchal Nag Chowdhury
(Expert) 08 November 2010
In most States,the court of the District Judge decides matters under HMA.Obviously Appeal will lie to the HC.I do not want to comment on the situation in Tamil Nadu as I am unaware of the rules prevailing there.
Ramakrishnan.V
(Querist) 09 November 2010
Respected Advocate,
Kindly understand the question please. What is needed is that the supreme court of India by a decision has held that the forum of appeal in HMA case is High Court and on the basis of the recommendations made by the supreme court the legislators have amended the HMA acknowledging that the forum of appeal is High Court. Can anyone tell me the judgement of the High Court and the subsequent amendment made on the basis with the purpose of the act.
Ramakrishnan,V
Arun Kumar Bhagat
(Expert) 11 November 2010
See Hindu Marriage Act. Provisions for filing appeal, when and where.
Ramakrishnan.V
(Querist) 12 November 2010
Respected Learned Counsel, the appeal section of the Hindu Marriage Act of 1955 does not prescribe the place or forum of appeal. Further the Hindu Marriage act was amended in 2003 extending the period of limitation to 90 days. This extended period of limitation is due to the recommendations made by the Supreme Court of India, in which it is said the forum of appeal under the Hindu Marriage Act being High Court, the period of limitation for preferring the appeal be fixed as 90 days is the recommendation of the Supreme Court. The debate that took place when the bill was introduced and the events that led to the passing of the Bill it has been categorically by the legislators that it is High Court. Can anyone tell me the judgement of the Supreme Court of India and the debate during the passing of the bill.
The amended ct is provided below
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 23rd December, 2003/Pausa 2, 1925 (Saka)
The following Act of Parliament received the assent of the President on the 23rd December, 2003 and is hereby published for general information:-
THE MARRIAGE LAWS (AMENDMENT) ACT, 2003
No. 50 of 2003
[23rd December, 2003]
An Act further to amend the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.
Be it enacted by Parliament in the Fifty-fourth year of the Republic of India as follows:-
CHAPTER - I
PRELIMINARY
1. Short title.- This Act may be called the Marriage Laws (Amendment) Act, 2003.
CHAPTER - II
AMENDMENT TO THE SPECIAL MARRIAGE ACT, 1954
2. Amendment of Section 31.- In the Special Marriage Act, 1954 (43 of 1954) (hereinafter referred to as the Special Marriage Act), in section 31, in sub-section (1), after clause (iii), the following clause shall be inserted, namely:-
"(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or".
3. Amendment of section 39.- In section 39 of the Special Marriage Act, in sub-section (4), for the words "period of thirty days", the words "period of ninety days" shall be substituted.
CHAPTER - III
AMENDMENT TO THE HINDU MARRIAGE ACT, 1955
4. Amendment of section 19.- In the Hindu Marriage Act, 1955 (25 of 1955) (hereinafter referred to as the Hindu Marriage Act), in section 19, in sub-section (1), after clause (iii), the following clause shall be inserted, namely:-
"(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or".
5. Amendment of section 28.- In section 28 of the Hindu Marriage Act, in sub-section (4), for the words "period of thirty days", the words "period of ninety days" shall be substituted.
CHAPTER - IV
MISCELLANEOUS
6. Transitory provision.- All decrees and orders made by the court in any proceedings under the Special Marriage Act or the Hindu Marriage Act shall be governed under the provisions contained in section 3 or section 5, as the case may be, as if this Act came into operation at the time of the institution of the suit:
Provided that nothing in this section shall apply to a decree or order in which the time for appealing has expired under the Special Marriage Act or the Hindu Marriage Act at the commencement of this Act.
T.K. VISWANATHAN,
Secy. to the Govt. of India.
Ramakrishnan.V
Ramakrishnan.V
(Querist) 12 November 2010
Sir,
In India the purposive interpretation has gained currency. Hence, the background of the amendment what that I have given and the debate will prove the same. I need the judgements what Arun Jaitley has said in the debate.
Ramakrishnan. V
