Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3293 OF 2012
N.RAJENDRAN APPELLANT(S)
VERSUS
S.VALLI RESPONDENT(S)
J U D G M E N T
K. M. JOSEPH, J.
1. By the impugned judgment, the High Court has
reversed the decree of dissolution of the marriage
between the appellant and the respondent which is
passed under Section 13 (1) (ia) of the Hindu Marriage
Act, 1955.
2. We have heard Mr. K.S Mahadevan, learned counsel
Signature Not Verified
for the appellant and Mr. Gautam Narayan, learned
Digitally signed by
Rajni Mukhi
Date: 2022.02.08
18:44:37 IST
Reason:
counsel for the respondent.
1
3. The appellant and the respondent were married as
per the Hindu rites and customs on 29.08.1999.
According to the appellant, there were certain
differences between his sister and the respondent’s
brother, who were married to each other, which led to
the appellant’s sister returning to her parental
house. Further, the case of the appellant is that the
respondent left the appellant on 18.01.2000 and
returned to her parental home. She did not return home.
She stood accused of cruelty and accordingly, the
divorce petition was filed on 05.03.2001 seeking
dissolution. The Family Court allowed the petition by
its decree dated 23.07.2004. An appeal was carried by
the respondent before the Madras High Court under
Section 19 of the Family Courts Act, 1984 and it was
filed on 09.09.2004. According to the appellant, since
the period for filing an appeal by the respondent had
expired, he re-married on 31.10.2004 on the strength
of the decree of dissolution dated 23.07.2004. He was
served with the notice in the matter in May, 2005.
Respondent, in fact, filed a petition seeking
restitution of conjugal rights under Section 9 of the
2
Hindu Marriage Act on 27.12.2004 and the same is still
pending.
4. The learned counsel for the appellant, Mr. K.S
Mahadevan, would submit that the High Court has clearly
erred in reversing the judgment of the Family Court.
He would submit that this is a case of matrimonial
cruelty practised by the respondent. The Trial Court
has after considering the evidence rendered a finding
to justify the grant of dissolution of the marriage.
It is pointed out that there was a strained
relationship between the respondent and the
appellant’s sister. It must be noticed here that the
appellant’s sister was married to the brother of the
respondent on 24.05.1999, prior to the marriage
between the appellant and the respondent on
29.08.1999. It is pointed out that on the evidence,
finding was rendered by the trial court that strain
between the respondent and the appellant’s sister had
a telling effect on the relationship between the
appellant and the respondent. The learned counsel for
the appellant contended that the respondent would
3
threaten to commit suicide. What is more, the learned
counsel for the appellant would further contend that
though the appellant requested the respondent to come
back. But she refused, stating that in view of the
fact that she had gone to deliver a child, she needed
more time. She had requested for five months. In fact,
the father of the respondent passed away on 03.02.2001.
It is further contended that the attitude of the
respondent is reflected by the admitted fact that the
respondent did not file any petition seeking
restitution of conjugal rights. If she was genuinely
interested in coming back and staying with the
appellant, she would have done that. It is pointed out
further that the findings rendered by the High Court
about there not being any strained relationship
between the respondent and her sister-in-law is
unsustainable. He pointed out the contradictions in
the impugned judgment in this regard. He would contrast
the finding that there was no such strain with the
finding that there was a strained relationship between
the families. The respondent was never willing to live
with the appellant. The finding of the High Court that
4
the respondent was always ready and willing to rejoin
is criticized as being unsustainable on facts. It is
pointed out in this regard that the intention to return
was not reflected in the pleadings, and it finds
expression for the first time in the evidence of the
respondent only.
5. It is further contended that the finding of the
High Court about the effect of the respondent taking
with her all jewels and belongings, which was a fact
relied on by the Family Court to find that the
respondent was not interested in living with the
appellant, cannot be sustained on the ground that it
is speculative and the finding of the High Court is
bereft of any evidence in support thereof. Two views
being possible, it is contended the High Court should
not have reversed the view of the Trial Court. It is
further contended that the appellant and the
respondent have been living separately since
18.01.2000. 22 Years have passed away. A long and
continuous separation, the marriage is as of today only
a legal fiction. It is a tie beyond repair, the entire
5
substratum having evaporated. The sanctity of the
marriage is lost. It is, therefore, contended that the
judgment of the High Court must be overturned. Next,
it is contended that the appeal filed by the respondent
under Section 19 was clearly beyond time. It is pointed
out that when the High Court has rejected the
contention that the period of 90 days is available to
appeal the decree, it has erred in finding that the
appeal was filed within time on the wings of the
provisions of Section 12 of the Limitation Act.
Learned counsel would contend that the finding is
in the teeth of Section 29 (3) of the Limitation Act.
He further pointed out that Section 19 of the Family
Courts Act is a code in itself and it is evident from
Section 20 which declares that Section 20 will have
effect notwithstanding anything inconsistent with any
other law. He would further contend, in this regard,
most pertinently that Section 19 (1) contemplates that
the provisions of the Code of Civil Procedure will not
stand in the way of the overwhelming operation of
Section 19 of the Family Courts Act. In other words,
he contends that in a case which falls under the Code
6
of Civil Procedure, it is mandatory that an appeal
should be accompanied by a certified copy but when
Section 19(1) is properly appreciated, this
requirement must be treated as having been taken away.
Equally, he dwells upon Section 19(1) to contend that
the provisions of the Family Courts Act will have
effect notwithstanding anything which is contrary to
any other law. Thus, the period of 30 days in Section
19 must be adhered to by the prospective appellant.
Hence, the appellant is not entitled to exclude any
period with the aid of the Limitation Act. He would
contend that the High Court has wrongly relied upon
Section 29(2) of the Limitation Act. This being a law
relating to marriage and divorce, it fell squarely
within the four walls of Section 29(3). In this regard,
he would contend that while an appeal before the High
Court under Section 19 is not a suit, it would
certainly be a proceeding within the meaning of Section
29(3). He would submit that the judgment of this Court
1
reported in Lata Kamat v. Vilas , etc. was a matter
which fell to be considered under Section 28 of the
1
1989 (2) SCC 613
7
Hindu Marriage Act. Having regard to the pronounced
differences in the provisions of the Family Courts Act,
in particular, Sections 19 and 20, the word
‘proceeding’ in Section 29(3) would embrace an appeal
which is carried under Section 19. He would next
contend that under Section 15 of the Hindu Marriage
Act, the appeal must be presented in time. The word
“presented” according to Mr. K.S Mahadevan, Ld.
Counsel, cannot be allowed to be interpreted in a
pedantic manner and it should not be understood as the
mere pushing of an appeal into the files of the Court.
In other words, an appeal will be treated as
“presented” within the meaning of Section 15 only when
it is not only filed but further moved and brought up
before the Court on the judicial side. Though the
appeal was filed on 09.09.2004, it is pointed out that
the application for stay of decree was signed as early
as on 30.08.2004. The appeal was kept ready and it was
not filed immediately deliberately. The moment, the
respondent came to know that the appellant got re-
married on 30.01.2004, she moved an application for
stay on 01.11.2004. Therefore, she deliberately wanted
8
to know whether the appellant would re-marry.
Thereafter, she moved the application for stay on
18.11.2004, and obtained the stay on the said date.
Therefore, it is contended that it is impossible to
determine as to when a party who suffers a decree is
likely to file an appeal. It is the conduct of the
respondent which is harped upon to contend that she
may not be granted any relief.
6. Per contra, Shri Gautam Narayan, learned counsel
for the respondent would point out that no case
whatsoever was made out at any point of time for the
appellant to seek a dissolution of marriage. After the
marriage, finding that, she was pregnant, and as is
natural, she went to her parental house. The pregnancy
was not a smooth affair. It was actually complicated.
Her father passed away. Circumstances beyond her
control constrained her to stay at her parental house
and it has nothing to do with lack of inclination on
the part of the respondent to fulfill her obligations
under the marital tie. It is pointed out that the
allegations which found favour with the Family Court
9
are clearly not of a standard, which would attract the
ground of cruelty contemplated by the law giver. No
ground whatsoever existed for the Family Court to grant
a decree of dissolution. It is pointed out that the
High Court has exhaustively discussed the matter with
reference to the circumstances and has correctly come
to the conclusion that there is no cruelty at all. The
respondent is entirely blameless. She is a teacher.
There is a son in the marriage. It is pointed out that
the appellant has not at all taken any interest in his
own son. He would point out as far as the question
relating to the applicability of Section 29(3) of the
Limitation Act is concerned, Section 19 of the Family
Courts Act is a special provision within the meaning
of Section 29(2) and it is, therefore, Section 29(2)
which would apply. He would point out that 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.
7. He also would contend that there is no merit at
10
all in the contention about the interpretation sought
to be placed on the word “presented” in Section 15 of
the Hindu Marriage Act. He would further point out
that the Court may notice the facts and the plight of
the respondent, who is blameless but for the unholy
haste with which her husband, has rushed into a
marriage.
8. As far as the contention of the learned counsel
for the appellant that the High Court erred in the
matter of reversing the decree of the Family Court is
concerned, we are of the view that there is absolutely
no merit in the contention. Undoubtedly, to describe
the marriage as short-lived will not extricate the
appellant from the rightful share of blame that falls
on his shoulders. The marriage took place on
29.09.1999. Having become pregnant, the respondent
left for her matrimonial home on 18.01.2000. The child
was born on 29.08.2000. The father of the respondent
died in February, 2001.
9. The haste with which the appellant has instituted
proceedings is clearly made out by the fact that the
11
appellant moved the petition before the Family Court
on 05.03.2001. In other words, the petition is filed
within a period of less than two years of the date of
marriage. Cruelty, undoubtedly, can consist of
physical as also mental cruelty. It is a matter to be
decided on the facts of each case. But we are of the
clear view that by any yardstick the case sought to be
made by the appellant was without any basis. The
evidence in this case consisted of the oral testimony
of the appellant PW-1, and the oral testimony of the
respondent is RW-1. Apart from that, exhibits A-1 &
A-2, as such do not throw any light on the cruelty
alleged against the respondent. The High Court has
clearly found that there was no basis at all in the
allegation of cruelty, which even as reiterated before
us, consists in the so-called strained relationship
between the respondent and the appellant’s sister. The
High Court rightly noted that having regard to the
date of the marriage of the appellant’s sister, which
is prior to the appellant’s marriage, it cannot be a
case where there was a strain between them, as in such
a case, the marriage between the respondent and the
12
appellant would not have taken place, in the first
place. Making up the case of a strained relationship
between the appellant and the respondent as a ground
of cruelty is beyond our comprehension. To our query
to the learned counsel for the appellant as to whether
there are any other circumstances or instances of
cruelty, learned counsel of appellant apart from
pointing out to the threat to commit suicide and
refusal to come back, was unable to point out any other
specific instance of cruelty. As regards, the
respondent not coming back, it is quite clear that
respondent being pregnant, she had to go to her
parental house. This was but natural. The pregnancy
was not a smooth one as pointed out. If the wife
decided to stay for some more time in her own parent’s
house, after the delivery of the child, it is beyond
our comprehension as to how such a case could have
been brought before the Court, and more importantly
without even waiting for a reasonable period of time.
The appellant was not even keeping in mind the fact
that had fathered a child, rushes to the Court and
files the petition seeking divorce. We cannot be
13
oblivious to the death of the father of the respondent
on 03.02.2001. Keeping in view these facts, we do not
see any ground being made out by the appellant for
interfering with the findings that there is no cruelty
made out by the appellant on the part of the
respondent. The learned counsel for the respondent
points out that there is no evidence for the alleged
threat to commit suicide and we do not think that there
is any material produced which can be believed apart
from what can we describe as normal wear and tear,
which is normal to most marriages, if not all. There
is nothing which is made out to justify a decree of
dissolution of marriage on the ground of cruelty by
the respondent.
10. The next argument advanced by the appellant that
having regard to the provisions of Section 15 and the
appellant having re-married on 31.10.2004, the matter
must be considered and disposed of in the light of the
second marriage which is entirely lawful. The appeal
was filed on 09.09.2004, which is beyond the period of
30 days stipulated in Section 19 of the Family Courts
14
Act. The High Court has 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 respondent on 31.07.2004
and the period spent in obtaining the copy is to be
excluded. When a certified copy was made available on
19.08.2004, the respondent, according to the
appellant, signed the application for stay on
30.08.2004. The appeal was prepared on 01.09.2004. The
appeal was filed only on 09.09.2004. Therefore, if the
period spent in applying and obtaining a certified copy
is excluded, the appeal is well within time as found
by the High Court. If the appellant is justified in
contending that the Court could not have allowed the
respondent to seek shelter under Section 12 of the
Limitation Act, the appeal would be beyond time and
nd
the 2 marriage contracted by the appellant would be
entirely lawful.
11. In order to the appreciate the contention of the
appellant, we must advert to Section 15 of the Hindu
Marriage Act, 1955. It reads as follows:
15
“ 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.”
12. Section 19 of the Family Courts Act is to be
noticed next, which reads as follows:
“ (1) Save as provided in sub-section (2) and
notwithstanding anything contained in the
Code of Civil Procedure,1908 (5 of 1908) or
in the Code of Criminal Procedure, 1973 (2
of 1974) or in any other law, an appeal shall
lie from every judgment or order, not being
an interlocutory order, of a Family Court
to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or
order passed by the Family Court with the
consent of the parties2 [or from an order
passed under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section
shall apply to any appeal pending before a
High Court or any order passed under Chapter
IX of the Code of Criminal Procedure, 1973
(2 of 1974) before the commencement of the
Family Courts (Amendment) Act, 1991 (59 of
1991).]
(3) Every appeal under this section shall
be preferred within a period of thirty days
from the date of the judgment or order of a
Family Court.
16
[(4) The High Court may, of its own motion
or otherwise, call for and examine the
record of any proceeding in which the Family
Court situate within its jurisdiction passed
an order under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974) for the
purpose of satisfying itself as to the
correctness, legality or propriety of the
order, not being an interlocutory order, and
as to the regularity of such proceeding.]
[(5)] Except as aforesaid, no appeal or
revision shall lie to any court from any
judgment, order or decree of a Family
Court.”
13. Equally we must notice, Section 20 of the Family
Courts Act, which reads as under:
“The provisions of this Act shall have
effect notwithstanding anything
inconsistent therewith contained in any
other law for the time being in force or in
any instrument having effect by virtue of
any law other than this Act.”
14. The other set of provisions which must be noticed
is Section 29 of the Limitation Act which reads as
under:
“ 29. Savings.—(1) Nothing in this Act shall
affect section 25 of the Indian Contract
Act, 1872 (9 of 1872).
(2) Where any special or local law
prescribes for any suit, appeal or
application a period of limitation different
from the period prescribed by the Schedule,
the provisions of section 3 shall apply as
17
if such period were the period prescribed
by the Schedule and for the purpose 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 in so far 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 Easements Act, 1882 (5 of 1882),
may for the time being extend.”
15. On the one hand, it is the case of learned counsel
for the appellant that having regard to the provisions
of Family Courts Act, i.e., Section 19, Section 29(3)
would clearly apply and, therefore, the Limitation Act
would not apply. Since the Limitation Act would not
apply, 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.
16. The learned counsel for the respondent on the other
18
hand, would contend that it is Section 29(2) which
would apply. Another allied argument which we must
notice is that the appeal though filed on 09.09.2004,
cannot be treated as having been presented on
09.09.2004.
17. Section 29(3) in its earlier avatar under the
Limitation Act, 1908 reads as follows:
“ (3) Nothing in this Act shall apply to
suits under the Indian Divorce Act (4 of
1869).”
18. This meant that there is no period of limitation,
and that the Limitation Act did not apply to a suit for
divorce under the Indian Divorce Act, 1869. The Third
Report of the Law Commission on the Limitation Act,
1908 had this to say about the need for change.
“Para 60. Sub-section (3) makes this Act
inapplicable to suits under the Divorce Act,
1869. There are other Acts like the Parsi
Marriage and Divorce Act and the Special
Marriage Act, dealing with marriage and
divorce. The reasons for excluding
proceedings under the Divorce Act, 1869 are
equally applicable to proceedings under
these other Acts. We recommend that the
sub-section may be amplified to include all
Acts relating to matrimonial causes. The
Acts to be included may be specified when
drafting the amendment to the section
19
19. This question as to whether the Limitation Act
would apply to an appeal under the matrimonial laws is
not res integra . No doubt, under the auspices of
Section 28 of the Hindu Marriage Act, in the decision
of this Court reported in Lata Kamat (supra), we need
only notice the following paragraph:
“12.The Schedule in the Limitation Act does
not provide for an appeal, under the Hindu
Marriage Act but it is only provided in sub-
section (4) of Section 28 of the Hindu
Marriage Act. Thus the limitation provided
in sub-section (4) of Section 28 is
different from the Schedule of the
Limitation Act. Accordingly to sub-section
(2) of Section 29, provisions contained in
Sections 4 to 24 will be applicable unless
they are not expressly excluded. It is clear
that the provisions of the Act do not
exclude operation of provisions of Sections
4 to 24 of the Limitation Act and therefore
it could not be said that these provisions
will not be applicable. It is therefore
clear that to an appeal under Section 28 of
the Hindu Marriage Act, provisions contained
in Section 12 sub-section (2) will be
applicable, therefore the time required for
obtaining copies of the judgment will have
to be excluded for computing the period of
limitation for appeal. A Division Bench of
Delhi High Court in Chandra Dev Chadha case
held as under : (AIR pp. 24-25)
The Hindu Marriage Act is a special law.
That this "special 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
20
prescribed in the First Schedule to the
Limitation Act, 1963. But when we turn to
the First Schedule, we find there is no
provision in the First Schedule for an
appeal against the decree or order passed
under the Hindu Marriage Act. Now it has
been held that the test of a "prescription
of a period of limitation different from the
period prescribed by the First Schedule" as
laid down in Section 29(2), Limitation Act,
1963 is satisfied even in a case where a
difference between the special law and
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,
AIR 19 Bom approved by the Supreme Court in
Vidyacharan Shukla v. Khubchand .
Once the test is satisfied the provisions
of Ss, 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 therefor
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 taken by the Calcutta
High Court in Smt. Sipra Dey case and also
21
the M.P. High Court in Kantibai case. It is
therefore clear that the contention advanced
by the learned counsel for the respondent
on the basis of the Limitation Act also is
of no substance.”
20. We may also notice that this subject has engaged
the High Court on a more elaborate basis. Apart from
the decision of the Delhi High Court. This Court also
noticed the judgment of the Division Bench of Calcutta
High Court which has exhaustively considered the issue
and the decision is reported in Sm. Sipra Dey v. Ajit
2
Kumar Dey . In the said case, the Court has given the
rationale for the change that was brought about in the
provisions of Section 29(3) in the Limitation Act,
1963.
The Legislature wished to extend the protection
from the Limitation Act, as it were, in regard to the
word ‘proceedings’ in matrimonial matters to persons
other than those who were covered by the provisions of
section 29(3) in the Limitation Act, 1908. Protection
under Section 29(3) of the 1908 Act was available to
those who are governed by the Indian Divorce Act. The
2
AIR 1988 Calcutta 28
22
rationale appears to be that by the very nature,
matrimonial matters like Restitution of Conjugal
Rights, Divorce, Guardianship, are matters for which
it may not be appropriate to fix a period of limitation.
It would not be in the interest of justice qua the
parties and, therefore, not in the interest of society.
It is this principle which was extended to cases, as
for instance, to proceedings under the Special Marriage
Act, where parties were governed by the Special
Marriage Act, and the Parsi Marriage Act and any other
law which related to matrimonial matters. But when it
comes to providing for an appeal from the original
proceedings, it is an entirely different proposition.
It is in the interest of the parties and also the
society at large that a period of limitation is fixed
within which the verdict of the Court at the bottom of
the judicial hierarchy is called in question. There
must be certainty and certainty in point of time and
it is viewed in this regard, that we must understand
the meaning of the word “proceeding” in Section 29(3).
21. We have no difficulty in contemplating that shorn
23
of the context provided in Section 29(3), and placed
in a different setting, the word “proceeding” may
embrace an appeal. However, in the context of Section
29(3) and having regard to the history of the
legislation, it is quite clear that the intent of the
legislature was to take in proceedings before the
original court by way of a petition as are contemplated
in various provisions of the Hindu Marriage Act as for
instance. Further we would notice that as was in fact
correctly noticed by the Calcutta High Court in the
judgment (supra), that in Sections 3,4,5,12,13,29, 30
& 31 of the Limitation Act, the expression ‘appeal’ is
expressly used. 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.
In fact, a learned Single Judge of the Kerala High
24
Court had dealt with this issue in the judgment
3
reported in Kuttimalu v. Subramonian and his views on
similar lines, stands approved by the full Bench of
Kerala High Court in Kunnarath Yesoda v. Manathanath
4
Narayanan . It is relevant to notice the following
paragraphs from the judgment of the full Bench of the
Kerala High Court:
“16. The second contention relates to the
meaning of the expression "other proceeding"
in Section 29(3) of the Limitation Act. As
has been rightly held in Kuttimalu v.
Subramonian 1981 Ker LT 602 : (AIR 1981 NOC
221) following Chander Dev v. Rani Bala, AIR
1979 Delhi 22, the statutory bar under
Section 29(3) is limited to suits and other
proceedings both of which are original in
nature and not to appeals which belong to a
distinct and separate category. We are in
entire agreement with the reasoning and
conclusion of Balagangadharan Nair, J. in
1981 Ker LT 602 : (AIR 1981 NOC 221).
17. The contention therefore that the appeal
under the Hindu Marriage Act against a
decree for divorce should be filed within
30 days of the date of the decree, whether
a certified copy has been obtained or not
and even if the appellate Court closes after
the decree has been passed or order has been
made and remain so closed for over 30 days
therefrom cannot be accepted. Section 15 of
the Hindu Marriage Act only declares that
it shall be lawful for either party to the
marriage to marry again under certain
3
1981 KLT 602
4
AIR 1985 Ker 220
25
circumstances. From this it does not follow
that a right to remarry enures automatically
after the expiry of 30 days from the date
of the decree of divorce. If an appeal is
presented, one will have to wait till it is
dismissed. If there is a right of appeal,
the time for filing the appeal should have
expired without the appeal being filed,
taking into consideration the time required
for obtaining the certified copy. The period
for filing the appeal does not expire if
once the delay in filing the appeal is
condoned. The computation of time under
Section 10 of the General Clauses Act, 1897
when the court or office is closed also
extends the time beyond 30 days. Thus
Section 15, on its face, indicates that it
is not the legislative intention that a
right to remarry arises exactly after 30
days of the decree of divorce.
18. Reliance was placed on Section 23(4) of
the Hindu Marriage Act which provides: --
"In every case where a marriage is dissolved
by a decree of divorce the court passing the
decree shall give a copy thereof free of
cost to each of the parties".
The contention was advanced that an
applicant was entitled to a copy free of
cost and therefore the time taken to obtain
a certified copy cannot be excluded. Our
attention was also drawn to Section 363(1)
of the Criminal Procedure Code under which :
--
"When the accused is sentenced to
imprisonment, a copy of the judgment shall,
immediately after the pronouncement of the
judgment, be given to him free of cost".
Section 15 of the Hindu Marriage Act only
enables the applicant to obtain a copy free
of cost; but does not statutorily prescribe
the time during which the copy has to be
delivered. Section 23(4) does not advance
the contention of the appellant that the
time required to obtain the certified copy
26
cannot be excluded.”
22. Taking up the contents of paragraph 18 above, we
find that it is again a circumstance which sufficiently
deals with the argument of Shri K.S. Mahadevan, learned
counsel for the appellant, that a certified copy may
not be necessary. As noticed by the High Court, 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.
In this regard, we are again fortified by a Rule which
has been made under Section 21 of the Family Court Act.
The Madras High Court has framed Rule 52 of the Family
Courts (Procedure) Rules, 1996 which reads as follows:
“Copy of judgment or order to be filed with
appeal- Every appeal under section19(1) of
the Act shall be accompanied by a copy
certified to be true copy by the court which
passed the Judgment.”
23. This plainly would suffice to repel the contention
of the appellant that an appeal can be maintained
within thirty days even if it is in the absence of a
certified copy. Coming further to the arguments of the
learned counsel for the appellant that Section 19
27
overrides the provisions of the Code of Civil Procedure
and there may not be any need to have a certified copy
of the judgment, we find this argument to be clearly
untenable having regard to Rule 52 made by the Madras
High Court under the said Section 21 of the very Act
namely, the Family Courts Act. The non-obstante clause
in Section 19 actually has a different purport and
scope and it was not meant to sweep away all
requirements as existed in law for maintaining an
appeal.
24. Equally, without substance is the contention of
the appellant based on Section 19(3) of the Act. It
constituted a special law within the meaning of Section
29(2) of the Limitation Act. It must be noticed that
the Family Courts Act itself was based on the
overwhelming realization that a specialized
institution which must resort increasingly to efforts
of reconciliation between the parties be established.
It must be noticed that even with the promulgation of
the Act, unless a Family Court is established, the
Courts which were earlier dealing with the provisions
28
would continue to have jurisdiction. With the
establishment of Family Court and the jurisdiction it
was to exercise under Section 7 of the Act, this Court
is of the view that the Family Courts Act must be read
along with the cognate enactments. In other words, 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. In fact, a mere perusal of Section
7 of the Family Courts Act would show that it speaks
about suits and proceedings. Therefore, reading Section
7 of the Family Courts Act with Section 29 of the
Limitation Act, also fortifies us in our finding that
the word ‘proceedings’ within the meaning of Section
29(3) is to be confined to the original proceedings.
25. We also do not find any merit in the contention
based on Section 20. Section 20 gives overriding effect
to the Family Courts Act, notwithstanding anything
29
which is inconsistent with any other Act. It is true
that it is intended to have an overwhelming sway even
in the teeth of other provisions. But in order to apply
Section 20, and to rule out Section 12 of the Limitation
Act, the appellant must succeed in the first place in
eliminating the application of Section 29(2) of the
Limitation Act. 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. In fact, it is incomprehensible
how on one hand, the law commands through Rule 52 of
the Rules that a certified copy must accompany an
appeal, and yet a decision declaring the marriage
dissolved could hold a litigant to ransom, when she has
no right to file an appeal without a certified copy,
and yet a successful party before the original court
is left free to remarry before the period runs out
under the Limitation Act.
30
26. There is thus nothing inconsistent in Section 12
read with Section 29(2) of the Limitation Act with
Section 19 of the Family Courts Act.
Therefore, we find that there is no merit at all
in the contention of the appellant that the provisions
of Section 20 will override the provisions of Section
12 of the Limitation Act thereby rendering the appeal
filed by the respondent beyond time.
27. The further argument addressed by the learned
counsel for the appellant, Shri K.S.Mahadevan, that the
respondent filed an appeal on 09.09.2004 and therefore
it was not an appeal which was presented within the
meaning of Section 15 of the Hindu Marriage Act, is
without any merit at all. 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
31
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.
The upshot of the discussion is that the appellant has
not made out a case to overturn the findings on merits.
Equally, as the appellant failed in persuading us to
hold that the appeal was not filed within the period
stipulated in Section 19 of the Family Courts Act or
that the appeal was not presented during the period of
Section 15 within time, the second marriage which is
relied upon by the appellant clearly took place in
32
contravention of mandate of Section 15 of the Hindu
Marriage Act and we have no hesitation in holding that
the High Court was entirely right in its findings.
28. The question lingers, unfortunately, however, as
to whether this should be the end of the enquiry by
this Court in the facts of this case. The parties have
beyond dispute been living separately since 18.01.2000,
in other words, for more than 22 years. Should we rest
content with affirming the impugned judgment which we
find beyond reproach? Should we hearken to the plea of
the learned counsel for the appellant that declining
to interfere with the judgment should not lead to a
situation where the parties will never be able to
cohabitate as husband and wife and what is more, third
parties have made their appearance on the scene in the
form a second wife and son born to her on 25.02.2004
and yet the marriage remains intact. There is a son
born to the appellant from the second marriage which
is contracted undoubtedly in violation of Section 15.
It is pointed out by learned counsel for the
respondent that the son was born in the second marriage
33
to the appellant even prior to the pronouncement of
dissolution by the Family Court.
29. Article 142 of the Constitution undoubtedly
clothes this Court with a reservoir of power to pass
orders as would reach complete justice to the parties.
What comes to mind is the concept of irretrievable
breakdown of marriage. Undoubtedly, though there have
been reports of the Law Commission in this regard
recommending changes in the law, as of today the
statute does not provide for irretrievable breakdown
of marriage as a ground. However, this Court has on a
number of occasions exercised its power and granted
dissolution of marriage on the ground of irretrievable
breakdown of marriage based on Article 142. In this
regard, learned counsel for respondent pointed out that
this is not a case for exercising power under Article
142. He addressed this submission, reminding us of the
conduct of the appellant throughout. He would submit
that the respondent is completely without blame. She
was always ready and willing. The findings as found by
the High Court being confirmed, no occasion arises for
34
this Court to exercise power under Article 142. We
record this submission for as a prefatory remark to
indicate that this is not a case where both parties are
agreeable for a dissolution by way of irretrievable
breakdown of marriage. But that then leads us to the
question as to whether the consent of the parties is
necessary to order dissolution of marriage on the
ground of irretrievable breakdown. This again, is not
res integra. We may notice that this Court has in a
catena of decisions discussed this very aspect. The
5
judgment reported in R. Srinivas Kumar v. R. Shametha
reads as under:
“7. Now so far as submission on behalf of
the respondent wife that unless there is a
consent by both the parties, even in
exercise of powers under Article 142 of the
Constitution of India the marriage cannot
be dissolved on the ground of irretrievable
breakdown of marriage is concerned, the
aforesaid has no substance. If both the
parties to the marriage agree for separation
permanently and/or consent for divorce, in
that case, certainly both the parties can
move the competent court for a decree of
divorce by mutual consent. Only in a case
where one of the parties do not agree and
give consent, only then the powers under
Article 142 of the Constitution of India are
required to be invoked to do substantial
justice between the parties, considering the
5
(2019) 9 SCC 409
35
facts and circumstances of the case.
However, at the same time, the interest of
the wife is also required to be protected
financially so that she may not have to
suffer financially in future and she may not
have to depend upon others.”
30. We may also notice the judgment of this Court
6
reported in Munish Kakkar v. Nidhi Kakkar which reads
as under:
“18. No doubt there is no consent of the
respondent. But there is also, in real
terms, no willingness of the parties,
including of the respondent to live
together. There are only bitter memories and
angst against each other. This angst has got
extended in the case of the respondent to
somehow not permit the appellant to get a
decree of divorce and “live his life”,
forgetting that both parties would be able
to live their lives in a better manner,
separately, as both parties suffer from an
obsession with legal proceedings, as
reflected from the submissions before us.”
31. We may also notice the judgment of this Court
7
reported in Sivasankaran v. Santhimeenal which reads
as under:
“19. We are, thus, faced with a marriage
which never took of from the first day. The
marriage was never consummated and the
parties have been living separately from the
date of marriage for almost 20 years. The
6
(2020) 14 SCC 657
7
2021 SCC Online SC 702
36
appellant remarried after 6 years of the
marriage, 5 years of which were spent in
Trial Court proceedings. The marriage took
place soon after the decree of divorce was
granted. All mediation efforts have failed.
20. In view of the legal position which we
have referred to aforesaid, these continuing
acts of the respondent would amount to
cruelty even if the same had not arisen as
a cause prior to the institution of the
petition, as was found by the Trial Court.
This conduct shows disintegration of marital
unity and thus disintegration of the
marriage. In fact, there was no initial
integration itself which would allow
disintegration afterwards. The fact that
there have been continued allegations and
litigative proceedings and that can amount
to cruelty is an aspect taken note of by
this court. The marriage having not taken
of from its inception and 5 years having
been spent in the Trial Court, it is
difficult to accept that the marriage soon
after the decree of divorce, within 6 days,
albeit 6 years after the initial inception
of marriage, amounts to conduct which can
be held against the appellant.
21. In the conspectus of all the aforesaid
facts, this is one case where both the
ground of irretrievable breakdown of
marriage and the ground of cruelty on
account of subsequent facts would favour the
grant of decree of divorce in favour of the
appellant.
22. We are, thus, of the view that a decree
of divorce dissolving the marriage between
the parties be passed not only in exercise
of powers under Article 142 of the
Constitution of India on account of
irretrievable breakdown of marriage, but
also on account of cruelty under Section
37
13(1)(i-a) of the Act in light of the
subsequent conduct of the respondent during
the pendency of judicial proceedings at
various stages.”
32. Having found that consent of the parties is not
necessary to declare a marriage dissolved, we cannot
be unmindful of the facts as they exist in reality.
There has been a marriage which took place on
31.10.2004. There is a child born in the said marriage.
No doubt being in contravention of Section 15, it
becomes a fait accompli but at the same time we do not
reasonably perceive any possibility of the appellant
and the respondent cohabiting as husband and wife.
Whatever life was there in the marriage has been
snuffed out by the passage of time, the appearance of
new parties and vanishing of any bond between the
parties. Not even the slightest possibility of
rapprochement between the appellant and the respondent
exists for reasons though which are entirely due to the
actions of the appellant and for which the respondent
cannot be blamed. The marriage between the appellant
and the respondent has become dead. It can be described
as a point of no return. There is no possibility of the
38
appellant and the respondent stitching together any
kind of a reasonable relationship as the tie between
the parties has broken beyond repair and having regard
to the facts of this case, we would think that it would
be in the interest of justice and to do complete justice
to the parties that we should pass an order dissolving
the marriage between the appellant and the respondent.
33. We make it clear that this decision of ours is not
based on our approval of the conduct of the appellant
nor is it based on sitting in judgment over the conduct
of the respondent. In other words, we find that
respondent is blameless in the matter but the facts as
they have unfolded and the developments which have
taken place, render it unavoidable for us to consider
dissolution of marriage as the best course open in the
interest of justice.
34. Accordingly, while we affirm the judgment of the
High Court and refuse to grant a decree of dissolution
on the ground of cruelty by the respondent, we in
exercise of our power under Article 142 of the
Constitution declare the marriage between the appellant
39
and the respondent as dissolved. This will be on
condition that the appellant will pay a sum of
Rs.20,000,00/- (Rupees twenty lakhs) to the respondent
by way of a demand draft within a period of eight weeks
from today. We further make it clear that this will be
without prejudice to all the rights available to the
son who was born in the marriage between the appellant
and the respondent under law in regard to property
rights. Till the amount is paid as aforesaid, the
appellant will continue to be liable to pay Rs.7000/-
per month to the respondent.
35. The appeal is disposed of as above.
……………………………………………………J.
[K.M. JOSEPH]
……………………………………………………J.
[HRISHIKESH ROY]
New Delhi;
February 03, 2022.
40