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Shyam (Field Supervisor)     04 September 2013

Remarriage after appeal period expire

I got remarried immediately after 90 days after HC judgment in my favour. Ex wife filed petition in SC after 30 days after expiring appeal period. She is asking for ex-party  stay. I have not received any notice.

What will happen to my second marriage if she gets stay? Can she get stay ex party?



Learning

 13 Replies


(Guest)

No,as you have married after 90 days of getting HC judgement,then there is no question of stay aside order.She failed to appeal and give notice within such time period.

Tajobsindia (Senior Partner )     05 September 2013

Originally posted by : Sufferer
  No,as you have married after 90 days of getting HC judgement,then there is no question of stay aside order.She failed to appeal and give notice within such time period.  

 

1.    I completely differ to the opinion of @ Sufferer which is not what the Law of Appeal says.

2.    The Appeal after 90 days can also be filed showing delay with delay condonation application showing ‘reasonable cause’ of filing delay to Appeal Hon’ble HC. If allowed then Notice is issued to ex husband to defend the same.

3.    It is not that the Notice of Appeal to the defendant husband should be sent / received within 90 days.

4.    If the Appeal is filed within Limitation period which is 90 days and if the trial court granted Decree is reversed in Appeal then the second marriage becomes void.  

2 Like

(Guest)

Dear Tajob I agree with your point-1 & 2 what you have stated above as according to limitation act 1963 sec-5.

 

According to sec -5 ,Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908 ), may be admitted after the prescribed period if the appellant or

 

the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.


But here my prime concern is that the querist has not mentioned the reason which her ex wife had mentioned in her application,whether that is accepted by SC or not?

Here he simply mentioned that he married after 90 days of HC judgement and wife failed to stay aside the HC order in such stipulated period.Hence,my opinion was based on the half facts and circumstances put by the querist.

If her wife gives acceptable reasons beyond any doubts that why she was unable to put the appeal within the appelant period,then SC may held the HC decision to put aside.

But,here again question arises if a person who is married and SC gives set aside his marriage then how come his marriage be called as void?So,I differ from your point-3 & 4

As he had performed the marriage with legally correct concerned after 90 days till no orders had come for the restrain.Here the technicalities of Indian judiciary be called as for No fault default or all fingers will go on her ex wife who did not turned up well ahead.

1 Like

Shyam (Field Supervisor)     05 September 2013

Thanks Tajob and Sufferer,

In fact I have no information what she wrote in application. Only from SC web page I came to know that an appeal has been listed.

I have not received any notice. She has asked for Ex-parte Stay.

My question is,

1. does listing the appeal mean it has already been accepted? Or it will be decided on first hearing?

2. Should I wait for notice to come to me, or should I engage a lawyer immediately to defend myself. 

3. Because I remarried following all legal procedures (beyond 90 days), is there any remote possibilities that HC order might be reversed? I won both in Familiy Court and HC.

hema (law officer)     05 September 2013

if she has not appealed within 90 days and if she has not notified you about her intention to appeal by the time of your second marriage, your second marriage is completely valid.  Even though, after first hearing, on merits the court may issue notice to you, if you appear on the date of your hearing with documentary proof that you got married again after the 90 days mandatory stipulated period, the court would dismiss her case.

2 Like

Shantanu Wavhal (Worker)     05 September 2013

this may help


Attached File : 924716339 lata vs vilas on 20 february, 1987.pdf downloaded: 150 times

Shantanu Wavhal (Worker)     05 September 2013

her appeal is infructuous

2 Like

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     05 September 2013

agree with experts

Shyam (Field Supervisor)     05 September 2013

Hi Amit,

I could not download from the link that you mentioned. Everytime it is showing some error..

Shantanu Wavhal (Worker)     05 September 2013

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 708 of 1988

Decided On: 29.03.1989

Appellants:Smt. Lata Kamat
Vs.
Respondent:Vilas

>

JUDGMENT

G.L. Oza, J.

1. This appeal after leave has been filed by the appellant wife arising out of a decree under Section 12(1)(d) of the Hindu Marriage Act (hereinafter referred to as the 'Act'), a decree declaring the marriage a nullity,

2. The respondent husband instituted a petition on 7th March, 1984 for a declaration that the marriage of the respondent with the appellant wife was a nullity under Sub-section (1) Sub-clause (d) of Section 12 of the Act on the ground that appellant, the wife at the time of marriage with the respondent was pregnant by some one other than the respondent. The appellant wife contested the allegations and ultimately the IIIrd Joint Civil Judge, Senior Division Nagpur granted a decree in favour of the respondent by his judgment dated 3rd May, 1985 declaring the marriage to be a nullity.

3. The appellant wife filed a 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

Shantanu Wavhal (Worker)     05 September 2013

Supreme Court of India
Smt. Lata Kamat vs Vilas on 29 March, 1989
Equivalent citations: 1989 AIR 1477, 1989 SCR (2) 137
Bench: Oza, G.L.

PETITIONER:

SMT. LATA KAMAT

Vs.

RESPONDENT:

VILAS

DATE OF JUDGMENT29/03/1989

BENCH:

OZA, G.L. (J)

BENCH:

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 a nd

28---Decree of nullity and decree of divorce--Distincti on

between--Marriage declared nullity--Wife fili ng

appeal--Husband marrying after trial Court decree but befo re

the filing of the appeal--Appeal whether rendered infruct u-

ous

Indian Limitation Act 1963: Sections 4, 24 a nd

29--Applicability of provisions of Act to an appeal und er

section 28 Hindu Marriage Act 1956--Time required for o b-

taining copies of judgment to be excluded.

HEADNOTE:

A decree in favour of the respondent-husband was grant ed

by the Trial Court declaring his marriage with the appella nt

to be a nullity under section 12(1)(d) of the Hindu Marria ge

Act, 1956 on the ground that the wife at the time of ma r-

riage 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 Appella te

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 langua ge

used in that section, it is not possible to distingui sh

between a decree of nullity under section 11 or 12 a nd

decree of divorce under section 13; (ii) the interpretati on

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 la n-

guage 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 se c-

tion 13 have different phraseology. In section 12 it is sa id

that the "marriage may be annulled by a decree of nullit y"

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 t he

facts of each case, but the legal meaning or the effect, is

that by intervention of the court the relationship betwe en

two spouses has been severed either in accordance with t he

provisions of section 12 or in accordance with the prov i-

sions of section 13. Probably it is because of this reas on

that the phrase 'decree of nullity' and 'decree of divorc e'

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 appea l-

able. In order to provide an appeal against all decre es

section 28 has used a very wide terminology which includ es

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 par ty

aggrieved may appeal but the other party by remarriage wou ld

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 whe re

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 diffe r-

ent provision for appeal when there is a decree under se c-

tion 11 or 12 as the right of appeal against a decree und er

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, unr e-

strictive 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 consis t-

ent with section 28. Therefore, the phrase 'marriage h as

been dissolved

139

by a decree of divorce' in section 15 will only mean whe re

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

JUDGMENT:

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 prov i-

sions of the Limitation Act will not apply so far as a su it

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 Marria ge

Act, provisions contained in section 12 clause (2) of t he

Limitation Act will be applicable, and therefore, the ti me

required for obtaining copies of the judgment will have to

be excluded for computing the period of limitation f or

appeal. [149G-H]

Chander Dev Chadha v. Smt. Rani Bala, AIR (1979) Del hi

22; Smt. Sipra Dey v. Ajit Kumar Dey, AIR (1988) Cal 28 a nd

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 7 th

March, 1984 for a declaration that the marriage of t he

respondent with the appellant wife was a nullity under su b-

section (1) sub-clause (d) of section 12 of the Act on t he

ground that appellant, the wife at the time of marriage wi th

the respondent was pregnant by some one other than t he

respondent. The appellant wife contested the allegations a nd

ultimately the IIIrd Joint Civil Judge, Senior Divisi on

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 Distri ct

Judge, Nagput. Before this appeal could be filed, the r e-

spondent 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 Sari ta

daughter of Laxmanrao Modak on 27.6.1985. It was furth er

alleged in the application that this marriage was solemnis ed

on 27.6.1985 when there was no impediment against the r e-

spondent husband which could come in his way for contracti ng

this marriage as the parties were relegated to the positi on

as if they were not married and therefore this marria ge

performed on 27.6.1985 of respondent with Sarita was leg al

and valid and the consequence of this is that the appe al

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 cost s.

Against this the appellant preferred a second appe al

before the High Court. The High Court by its judgment dat ed

20.2.1987 dismissed the appeal holding that as the appe al

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 a nd

aggrieved by this judgment of the High Court after obtaini ng

leave this appeal is filed in this Court. It was contended by learned counsel for the appella nt

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 decr ee

of nullity under Section 11 or 12 and decree of divor ce

under Section 13. It was contended that the word 'divorc e'

has been used in this provision in a broader sense indica t-

ing that where the marriage is dissolved or the relationsh ip

is brought to an end by decree of court whether it is by

declaring the marriage invalid or dissolving it by a decr ee

but result is the same and it was contended that it is

because of this that in this Act there is neither any sp e-

cific 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 on ly

apply when there is a decree under Sec. 13 does not appe ar

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 beco me

infructuous because the respondent has married a seco nd

time.

Learned counsel also referred to meaning of the wo rd

'divorce' in Webster's Third New International Dictiona ry

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 th at

there are decisions in Mohanmurari v. Smt. Kusumkumari, A IR

1965 M.P. 194;. Jamboo Prasad Jain v. Smt. Malti Prabha a nd

Anr., AIR 1979 Allahabad 260 and Pramod Sharma v. Sm t.

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 marria ge

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 null i-

ty" and it was contended that it is because of this that t he

various High Courts have taken a view that Sec. 15 will n ot

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 wi ll

lie even against a decree under Section 11 or 12 and if an

appeal lies under Sec. 28 even against the order or a decr ee

passed under Sections 11 or 12, the phrase 'if there is su ch

a right of appeal, the time for filing has expired witho ut

an appeal having been presented' are to be given its mea n-

ing, 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 und er

Sec. 13. Learned counsel in face of this raised anoth er

contention pertaining to the application of the Limitati on

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 'decr ee

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 co m-

mencement of this Act, shall be voidable and may be annull ed

by a decree of nullity on any of the following groun ds

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 differe nt

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 cou rt

the relationship between two spouses has been severed eith er

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 nullit y'

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 decre es

of the court made in the exercise of its original civ il

jurisdiction, and every such appeal shall lie to the Cou rt

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 decr ee

or order. ' '

Under this provision all decrees made by the Court in a ny

proceeding under this Act are appealable. Apparently a ny

proceeding under this Act will refer to a proceeding inst i-

tuted under Section 13 or a proceeding instituted und er

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 und er

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 witho ut

an appeal having been presented or an appeal has been pr e-

sented but has been dismissed, it shall be lawful for eith er

party to the marriage to marry again." Before we examine the phraseology 'dissolved by decree of

divorce' it would be worthwhile to examine the remaini ng

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 procee d-

ing 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 eith er

party to the marriage to marry again. The phrase 'eith er

party to the marriage' if is co-related with the first pa rt

of the Section, marriage which has been dissolved by decr ee

of divorce will indicate that what was provided in th is

Section was that when a relationship of marriage is di s-

solved by decree of court and either no appeal is filed or

if filed, is dismissed then either party to the marria ge

which has been dissolved by the process of law by a decr ee

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 'decr ee

of divorce', it could not be doubted that where the marria ge

is dissolved under Sections 11, 12 or 13 by grant of a

decree of nullity or divorce, the relationship is dissolv ed

or in any way is brought to an end and it would be signif i-

cant that if the language of Section 15 is interpreted in

the light of Section 28 which provides for appeal and co n-

fers a right of appeal on either party to proceedings whi ch

culminate into a decree bringing an end to the relationsh ip

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 appare nt

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 appe al

but the other. party by remarriage would make the appe al

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 und er

Sections 11 or 12 but if it were so, the Legislature wou ld

have provided a separate provision for appeal when there is

a decree under Section 13 and a different provision f or

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 cou ld

only be a limited right subject to the desire of the oth er

party. The Legislature in its wisdom has enacted Sec. 28

conferring a right of appeal which is unqualified, unr e-

strictive 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 a nd

therefore the only interpretation which could be put on t he

language of Sec. 15 should be which will be consistent wi th

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 Dictio n-

ary 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 compete nt

authority.

In Vathsala's case the Court had occasion to consider t he

effect of an application for setting aside an exparte decr ee

which was granted under Sec. 12 and it was contended th at

while the application by the husband for setting aside t he

exparte decree was pending the wife contracted remarriag e.

Will not remarriage have the effect of making the applic a-

tion 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 rel i-

ance on the observations made in Chandra Mohini's case hel d:

"That is the principle of Smt. Chandra Mohini v. Avina sh

Prasad, AIR 1967 SC 581. The principle laid down in th at

decision has general application. The Supreme Court point ed

out that on dissolution of marriage, a spouse can lawful ly

marry only when there is no right of appeal against t he

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 als o-

been considered in a recent decision of this Court in T e-

jinder Kaur's case wherein the observations made in Chand ra

Mohini's case have been quoted and it is held that: "In view of this, it was incumbent on the respondent to ha ve

enquired about the fate of the appeal. At any rate, the Hi gh

Court having dismissed the appeal on 16th July, 1986 t he

petitioner could have presented a special leave petiti on

within ninety days therefrom under Art. 133(c) of the Lim i-

tation Act, 1963 i.e. till 14th September, 1986. Till th at

period was over, it was not lawful for either party to mar ry

again as provided by S. 15. It was incumbent on the respon d-

ent, 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 peri od

for filing a special leave petition to this Court had e x-

pired. 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 subseque nt

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 amendme nt

parties whose marriage is dissolved by a decree of divor ce

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 immediat e-

ly after the High Court's decree, deprive the wife of t he

chance of presenting a special leave petition to this Cour t.

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 Cou rt

was considering the impact of an appeal against a decr ee

under Section 13 itself and not a decree under Section 11 or

12 but as indicated earlier if the impact of the phraseolo gy

'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 appe al

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, a nd

Pramod Sharrna. In none of these decisions the impact of t he

fight of appeal occurring in Sec. 15 in view of the langua ge

of Section 28 where the right of appeal is conferred, h as

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, th is

decree will include a decree under Sections 11, 12 or 13 a nd

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 lim i-

tation for preferring an appeal in view of Sec. 29 clau se

(3). Provisions of Limitation Act will not apply and if th ey

do not apply as the trial court disposed of 'the matter by a

decree dated 3.5.1985 the period of limitation for appe al

could only be upto 3.6.1985 as the period for obtaini ng

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 wa it

till the period of limitation for appeal expires 148

as he entered into a marriage on 27.6.1985 it was clear ly

after the period of limitation has expired and therefo re

this marriage apparently made the appeal filed by the appe l-

lant infructuous. It is not in dispute that if the peri od

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 appella te

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 a nd

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 th at

Sec. 29 clause 3 talks of suit or proceedings and therefo re

the phrase 'proceedings' used in clause 3 of Sec. 29 cou ld

only refer to suits or other original proceedings and it

will not apply to appeals as is very clear from the defin i-

tion of 'suit' as defined in Section 2(L) of the Limitati on

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 rel i-

ance 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 sui t,

appeal or application a period of limitation different fr om

the period prescribed by the Schedule, the provisions of

Section 3 shall apply as if such period were the peri od

prescribed by the Schedule and for the purpose of determi n-

ing any period of limitation prescribed for any suit, appe al

or application by any special or local law, the provisio ns

contained in Sections 4 to 24 (inclusive) shall apply on ly

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 bei ng

in force with respect to marriage and divorce, nothing in

this Act shall apply to any suit or other proceeding und er

any such law.

(4) Sections 25 and 26 and the definition of 'easement' in

Section 2 shall not apply to cases arising in the territ o-

ries to which the Indian Easement Act, 1882, may for t he

time being extend."

Clause (2) of this Section provides that where the limit a-

tion provided by the special or local law is different fr om

the period prescribed by the Schedule, the provisions of

Section 3 will apply. In the Hindu Marriage Act, the peri od

of appeal is prescribed. In the schedule under the Limit a-

tion Act, there is no provision providing for an appe al

under the Hindu Marriage Act. Thus the limitation prescrib ed

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 n ot

expressly excluded by the special or local law and clau se

(3) of this Section provides that the provisions of this A ct

shall not apply to any suit or other proceedings under a ny

marriage law. It is therefore clear that so far as clau se

(3) is concerned, the impact of it will be that the prov i-

sions of the Limitation Act will not apply so far as a su it

or an original proceeding under the Act is concerned b ut

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 provid ed

in clause (4) of Sec. 28 of the Hindu Marriage Act. Thus t he

limitation provided in clause (4) of Sec. 28 is differe nt

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 exclu d-

ed. It is clear that the provisions of the Act do not e x-

clude 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 cle ar

that to an appeal under Section 28 of the Hindu Marria ge

Act, provisions contained in Section 12 clause (2) will be

applicable, therefore the time required for obtaining copi es

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 "speci al

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 Schedu le

to the Limitation Act, 1963. But when we turn to the Fir st

Schedule we find there is no provision in the First Schedu le

for an appeal against the decree or order passed under t he

Hindu Marriage Act. Now it has been held that the test of a

"prescripttion 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, Cana ra

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 appe al

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 da ys

prescribed thereof by the special law. Similarly under S. 5

for sufficient cause it will have the power to condo ne

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 wi ll

be entitled to exclude the time taken by them for obtaini ng

certified copy of the decree and order. The appeals ar e,

therefore, within time." Similar is the view taken by the Calcutta High Court in Sm t.

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 pass ed

by the High Court as well as by the first appellate court is

set aside. We remand the matter back to the first appella te

court as that court had disposed of the appeal treating it

to have been rendered infructuous. We therefore direct th at

the learned lind Additional District Judge, Nagpur befo re

whom the appeal was filed, will hear the appeal on meri ts

and dispose it of in accordance with law. A suggestion was made by the counsel for the appella nt

about some tests and willingness of the appellant for ge t-

ting 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 declarati on

of marriage as nullity. Without expressing any opinion, it

would be appropriate for the lower appellate court to co n-

sider the matter if parties approach about additional ev i-

dence. The appallant shall be entitled to costs of th is

 

appeal. Costs quantified at Rs.2500. R.S.S. Appeal allowed. 152


(Guest)

originally posted by Shyam

Thanks Tajob and Sufferer,

In fact I have no information what she wrote in application. Only from SC web page I came to know that an appeal has been listed.

I have not received any notice. She has asked for Ex-parte Stay.

My question is,

1. does listing the appeal mean it has already been accepted? Or it will be decided on first hearing?

2. Should I wait for notice to come to me, or should I engage a lawyer immediately to defend myself. 

3. Because I remarried following all legal procedures (beyond 90 days), is there any remote possibilities that HC order might be reversed? I won both in Familiy Court and HC.

 

My question is,

1. does listing the appeal mean it has already been accepted? Or it will be decided on first hearing?

Opinion: mere Listing doesn't guarantee that it will be accepted,It depends on the causes what her lawyer would have drafted and plead for the same,if it is undoubtful beyond any suspects then it would be granted.

2. Should I wait for notice to come to me, or should I engage a lawyer immediately to defend myself. 

Opinion: It is better to have face to face dicussion with your lawyer over this issue,as he has to enquire the original status of the appeal and be prepared for the same.

3. Because I remarried following all legal procedures (beyond 90 days), is there any remote possibilities that HC order might be reversed? I won both in Familiy Court and HC.

Opinion: Your marriage can't be void if you have followed all the legal instructions before performing your remarriage.As per as your statement your second marriage is valid.


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