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Bar On Remarriage After Divorce Will Apply On Mere Filing Of Appeal By Other Party Within Limitation : Supreme Court

LIVELAW NEWS NETWORK
28 Feb 2022 9:31 AM GMT
Bar On Remarriage After Divorce Will Apply On Mere Filing Of Appeal By Other Party Within Limitation : Supreme Court
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It is not necessary that the appeal should be brought up on the judicial side within the time.

The Supreme Court has held that for the restriction on remarriage after divorce, as specified under Section 15 of the Hindu Marriage Act 1955, to apply, it is not necessary that the other party should bring up the appeal against the Family Court decree before the High Court within the limitation period. Mere filing of appeal within the limitation period is sufficient for Section 15...

The Supreme Court has held that for the restriction on remarriage after divorce, as specified under Section 15 of the Hindu Marriage Act 1955, to apply, it is not necessary that the other party should bring up the appeal against the Family Court decree before the High Court within the limitation period. Mere filing of appeal within the limitation period is sufficient for Section 15 to apply.

Section 15 of the Hindu Marriage Act which reads as follows: "When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again."

The argument raised was that the the appellant that not only must the appellant file the appeal, or prefer the appeal or present the appeal, but he must also ensure that the appeal comes on the judicial side of the High Court.

In this case, the appellant contended that though the appeal against divorce was filed on 09.09.2004, it was not moved before Court for over two months. The party was waiting to see if the other party would remarry, and immediately on getting knowledge about the remarriage, the appeal was moved on 30.11.2004 and a stay order was obtained. The appellant argued before the Supreme Court that this appeal cannot be treated as one coming within the meaning of Section 15 of the Hindu Marriage Act, as it was not moved before Court within the time.

Rejecting this contention, the bench comprising Justice KM Joseph and Justice Hrishikesh Roy said.

"In fact, Section 3 of the Limitation Act uses the word "prefers" in the context of an appeal. Section 15 no doubt uses the word "presented". What Section 15 intends is to place a time limit on the right of the unsuccessful party to challenge a proceeding by which the marriage has been declared dissolved. In Lata Kamat (supra), we notice that this Court has clarified that though Section 15 uses the word "dissolved", it has been interpreted to also apply to cases where the marriage is pronounced null and void keeping in view the interests of justice.

Thus, the intention of the Legislature was to give effect to the decree for dissolution, if the unsuccessful party does not move the appellate court within time.The argument of the learned counsel for the appellant that not only must the appellant file the appeal, or prefer the appeal or present the appeal, but he must also ensure that the appeal comes on the judicial side of the High Court is clearly without any basis. Therefore, we find that the appeal on being filed on 09.09.2004 must be treated as having been presented within the meaning of Section 15 of the Act. "

Whether period spent for obtaining certified copy of the decree can be excluded from limitation period

Another issue in the case was if Section 12 of the Limitation Act, which excludes time spent for obtaining certified copy of the decree from limitation period, will apply to a matrimonial appeal.

Answering the question in the affirmative, the bench observed that the period spent in obtaining the copy can be excluded in calculating the period of limitation to file matrimonial appeals under Family Courts Act.

Section 19(3) of the Family Courts Act provides that an appeal has to be preferred within a period of thirty days from the date of the judgment or order of a Family Court. As per Section 12 read with Section 29(2) of Limitation Act, the time spent in obtaining a certified copy of the decree or order appealed from can be excluded.

In this case,  the decree was passed by the Family Court on 23.07.2004 and the appeal was filed on 09.09.2004. The High Court  found that the appeal is within time, noticing that after the decree was passed by the Family Court on 23.07.2004, an application for a certified copy was made by the appellant (before HC) on 31.07.2004 and the period spent in obtaining the copy is to be excluded. (Certified copy was made available on 19.08.2004)

Before the Apex court, the appellant contended, referring to Section 19 of the Family Courts Act and Section 29(3) of the Limitation Act, that  the Limitation Act would not apply. Therefore, the period spent in applying for a certified copy and obtaining the same cannot be excluded by the respondent in calculating the period of limitation.

Section 29(3) reads as follows: 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. According to appellant, the Section 29(3) would embrace an appeal which is carried under Section 19. On the other hand, the respondent contended that the word 'proceeding' in Section 29(3) must be confined to proceedings akin to a suit, which means that original proceedings brought by the parties and not an appeal carried in the matter.

To address these rival contentions, the bench referred to legislative history of Section 29 and observed as follows:

"What is more apposite is in Section 29 itself, which is at the center of the controversy before us, Section 29(2) on the one hand, expressly uses the word 'appeal', whereas when it comes to Section 29(3), the legislature has carefully chosen the word 'proceedings'. Going by the company, the word "proceedings" keeps, namely a suit, it in no uncertain terms indicates that what the legislature had in mind was original proceedings and not appellate proceedings....

... Once Section 29(2) applies, the Family Courts Act would be a special enactment providing for special period of limitation as contemplated in Section 19 but bringing in its train, the provisions of Sections 4 to 24 of the Limitation Act. Section 12 of the Limitation Act is legitimately available to a prospective appellant. It is also conducive to the interest of justice."

 "The word 'proceedings' within the meaning of Section 29(3) of the Limitation Act is to be confined to the original proceedings.", the bench held. 

Headnotes

Family Courts Act, 1984 - Section 19,20 - Limitation Act, 1963- Section 12, 29(2) - The period spent in obtaining the copy can be excluded in calculating the period of limitation to file matrimonial appeals under Family Courts Act - Nothing inconsistent in Section 12 read with Section 29(2) of the Limitation Act with Section 19 of the Family Courts Act - Section 20 will not override the provisions of Section 12 of the Limitation Act.

Limitation Act, 1963- Section 29(3) - Family Courts Act, 1984  - The word 'proceedings' within the meaning of Section 29(3) is to be confined to the original proceeding and not appellate proceedings. (Para 21,24)

Family Courts Act, 1984 -  Madras High Court  Family Courts (Procedure) Rules, 1996 - Rule 52 - A free copy may be supplied as per the requirement under the Family Courts Act but that is a far cry from holding that an appeal can be carried without a certified copy - Rejected argument that that an appeal can be maintained within thirty days even if it is in the absence of a certified copy. (Para 22, 23)

Hindu Marriage Act, 1956 - Section 15 -  Bar on remarriage - Filing of appeal must be treated as having been presented within the meaning of Section 15 of the Act. The argument that not only must the appellant file the appeal, or prefer the appeal or present the appeal, but he must also ensure that the appeal comes on the judicial side of the High Court is clearly without any basis. (Para 27)

Family Courts Act, 1984 - The Family Courts Act is not a standalone Act. It draws sustenance from Acts like the Hindu Marriage Act. This is for the reason that a petition within the meaning, for instance, of the Hindu Marriage Act, after a Family Court is established in India, is to be dealt with by the Family Court, on the grounds as provided under the Hindu Marriage Act. (Para 24)

Constitution of India, 1950 - Article 142 - Irretrievable breakdown of marriage - Consent of the parties is not necessary to declare a marriage dissolved. (29-31)

Summary: Affirmed the judgment of the High Court but refused to grant a decree of dissolution on the ground of cruelty - Invoking Article 142 of the Constitution the marriage declared as dissolved.


Case : N Rajendran vs S Valli  | CA 3293 OF 2012 | 3 Feb 2022
Citation: 2022 LiveLaw (SC) 224
Coram: Justices KM Joseph and Hrishikesh Roy
Counsel: Adv K.S Mahadevan for appellant, Adv Gautam Narayan for respondent







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