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In A Full Bench Judgment, Bombay HC Holds That A Hindu Can Re-Marry 90 Days After Divorce [Read Judgment]

Nitish Kashyap
7 Dec 2016 5:23 AM GMT
In A Full Bench Judgment, Bombay HC Holds That A Hindu Can Re-Marry 90 Days After Divorce [Read Judgment]
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A full bench of the Bombay High Court has held that a Hindu can marry 90 days after his/her marriage has been dissolved through a decree, provided no appeal is pending against the decree. The primary question before the full bench comprising of Justice Naresh Patil, Justice RD Dhanuka and Justice Sadhana Jadhav was that whether an appeal under Section 19(1) of the Family Courts Act, 1984 will be governed by the period of limitation prescribed under Section 19(3) of the same act or Section 28(4) of the Hindu Marriage Act, 1955.

While the relevant provision in the Family Courts Act, 1984 prescribed 30 days as a period of limitation, S. 28(4) of the Hindu marriage Act was amended in 2003 after the apex court’s decision in Savitri Pandey v. Prem Chandra Pandey. Supreme Court held that the earlier period of limitation of 30 days was “insufficient and inadequate”, the bench of Justices RP Sethi and YK Sabharwal held- “We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard.”

Although a division bench in 2007 had taken a view that the relevant provisions under the Hindu Marriage Act would prevail over provisions under the Family Courts Act, the bench of Justices Abhay Oka and AS Gadkari took a contrary view in January this year and hence referred the matter to be decided by a full bench.

Senior Counsel Aspi Chinoy was assisting the court as Amicus Curiae in the matter. On the issue of interpretation of statutes, he submitted- “Both statutes are to be construed and read harmoniously. It is a well settled principle of interpretation of law that general law does not abrogate earlier special law by mere implication. The act of 1984 is essentially a procedural law. The legislature while enacting the law in 2003 was presumed to be well aware of the provisions of the existing legislation, including S.19(3) of the Act of 1984. Therefore, it would be contrary to the purpose and object of the scheme of law to read the amendment of S.28(4) as operating only when proceedings are brought in ordinary civil court and as not operating when proceedings under the Act of 1955 are brought in the Family Court.”

Although the appellant’s counsel Zenonia Irani argued against Chinoy’s interpretation and submitted that the Act of 1984 was partly procedural and partly substantial, the full bench accepted the interpretation submitted by the Amicus. Court also rejected the argument that the non-obstante clause under S.20 of the Family Courts Act would prevail over the Hindu Marriage Act.

Read the Judgment here.

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