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Kunnarath Yesoda Vs. Manathanath Narayanan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberM.F.A. No. 202 of 1980
Judge
Reported inAIR1985Ker220
ActsCode of Civil Procedure (CPC) ; Hindu Marriage Act, 1955 - Sections 15, 23 and 28(4); Limitation Act, 1963 - Sections 12, 12(2), 24(4), 29, 29(2) and 29(3); General Clauses Act, 1897 - Sections 10
AppellantKunnarath Yesoda
RespondentManathanath Narayanan
Appellant Advocate V.P. Mohankumar and; V. Ramkumar, Advs.
Respondent Advocate T.V. Ramakrishnan, Adv.
Cases ReferredChander Dev v. Rani Bala
Excerpt:
.....in view of the familiar pattern of legislative scheme adopted in section 28 of the act making the decree 'appealable as decrees of the court made in the exercise of original jurisdiction'.13. we are fortified in taking this view in the light of the supreme court rulings interpreting the appellate power under the representation of the people act. cohen, (1886) ilr 13 cal 221 as well as in ramaswami pillai v. (1) the hindu marriage act provides for the application of the limitation act to appeals against decrees for divorce by treating these decrees as having been made in the exercise of the original civil jurisdiction of that court attracting the provisions of the civil procedure code as well (2) as the limitation act is thus applicable to proceedings with respect to marriage and divorce..........by a decree of divorce, provides, as is done by section 15 of the h.m. act, that till the appeal time is over without an appeal having been preferred, or if an appeal has been presented within time, till it is dismissed, it shall not be lawful for either party to the marriage to marry again. he referred to section 57 of the indian divorce act, 1869, which according to him, is also based on this principle. the submission in short on behalf of the appellant is that the word 'proceeding' in section 29(3) of the limitation act, 1963 is to be given a restricted meaning. it is argued that that word should be understood as a judicial proceeding analogous to or in the nature of a suit. in that connection the learned counsel lays emphasis on the fact that the word 'proceeding' occurs in.....
Judgment:

Bhaskaran Nambiar, J.

1. The short question that arises for determination in this appeal, under the Hindu Marriage Act, is whether the appellant is entitled to exclude the time taken to obtain a certified copy of the decree of the lower court, for filing the appeal? Can Section 12(2) of the Limitation Act be invoked by the appellant?

2. The appellant is the wife who married the respondent in 1972. They have a daughter born on 30-5-1973. In 1979, the husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage on the grounds of desertion and cruelty. A decree for divorce was granted by the lower court on 25-1-1980. The appellant applied for a copy on 30-1-1980. He received the copy on 29-3-1980 and filed this appeal on 8-4-1980. The appeal has been filed beyond thirty days of the date of the decree; but is within time if time taken to obtain the certified copy is deducted. Is this appeal within time or out of time?

3. The learned counsel for the husband-respondent, Shri T. V. Ramakrishnan, submits that the appeal is barred by time. He contends that the Limitation Act does not apply in view of Section 29(3) of the Limitation Act and adds that if the time for filing an appeal has expired without any appeal having been presented, it was lawful for the husband to marry again and if the statute permits him to marry under these circumstances, it could not be a date varying from case to case but a date which is definite, exact and precise. He brings to our notice that the husband has in fact remarried on 5-4-1980 and he has a child through her. Shri K. P. Sreekumar, counsel for the appellant, submits that Section 12 of the Limitation Act applies and that the appeal has been filed within time.

4. Decree of divorce is appealable under Section 28 of the Hindu Marriage Act as decrees of the court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the court to which appeals ordinarily lie from the decision of the court given in the exercise of its original civil jurisdiction. Section 28(4) prescribes the period of limitation. It provides : --

'Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order'.

5. Section 29(3) of the Limitation Act is pressed into service for contending that the Limitation Act is wholly inapplicable to proceedings with respect to marriage and divorce. It is necessary therefore to extract Section 29(2) and (3) of the Limitation Act.

'29. Savings.-- (1) XXX

(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 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 - 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'.

6. There is no doubt and no dispute either that the Hindu Marriage Act is a special law. The special law has not expressly excluded Sections 4 - 24 of the Limitation Act. Section 29(2) of the Limitation Act therefore makes Sections 4 - 24, of that Act applicable to the Hindu Marriage Act.

7. The next question is whether Section 29(2) itself is excluded in view of Section 29(3). While interpreting the two clauses of the same section, it is a salutary principle of statutory interpretation that the attempt should be to give a harmonious construction keeping in view, both the legislative intent, and the statutory content so that there is mutual coexistence and meaningful relevance for both the clauses.

8. Section 29(3) of the Limitation Act, excludes the application of the Limitation Act itself to any suit or other proceeding under any law with respect to marriage and divorce unless it is otherwise provided by that law. If the law with respect to marriage and divorce, expressly or by necessary implication, provides for the application of the Limitation Act, Section 29(3) expressly saves those provisions. The first question to be decided therefore is whether the Hindu Marriage Act itself provides by necessary implication, if not expressly, that the Limitation Act would apply to appeals filed under that Act.

9. The exclusion under Section 29(3) is in respect of a suit or other proceeding under the law with respect to marriage and divorce -- the Hindu Marrige Act. Is an appeal under the Hindu Marriage Act, 'other proceeding' within the meaning of Section 29(3) of the Limitation Act? This is the second question to be considered. Balagangadharan Nair, J. in the decision in Kuttimalu v. Subramonian, 1981 Ker LT 602 : (AIR 1981 NOC 221) has taken the view :--

'On the terms of Sub-section (3) of the 1963 Act and in the nature of the case what is excluded is suits and other proceedings of an original nature like a petition for relief under the Marriage and Divorce Laws. Although the expression 'proceedings' is somewhat elastic and might in certain contexts include an appeal, here it is linked with the expression 'suit' and they should therefore be understood in their cognate sense, the word 'proceeding' being restricted to a sense analogous to that of a suit'.

The learned Judge followed Chander Dev v. Rani Bala, AIR 1979 Delhi 22 in which it was stated thus (para 13) :--

'The Limitation Act, 1963 is in-applicable to original proceedings. But appeals from decrees in suits under the Indian Divorce Act and appeals from decrees and orders under the Hindu Marriage Act are not excluded from the operation of the Indian Limitation Act. XXXXX The prohibition contained in Section 29(3), Limitation Act, 1963 is restricted only to suits and proceedings and hence does not extend to appeals,'

10. It is this preliminary objection regarding the maintainability of the appeal that gave rise to the reference to the Full Bench. The relevant portion of the reference order is extracted below : --

The reason for excluding suits under the Indian Divorce Act, 1869 from the operation of the Limitation Act, is obvious and that is, the policy of law is such that it cannot and does not allow suits like one for restitution of conjugal rights, for judicial separation, for divorce etc. to gel barred by providing that such suits shall be filed within any particular time limit prescribed in that behalf. The same policy of law governs and ought to govern any such proceeding similar to suits under any law relating to marriage and divorce, be it that such proceeding is registered as a suit or not, and that is the basis of the Law Commission's recommendation. Thus there can be no doubt that the original proceedings under the Hindu Marriage Act, 1955 in the court of first instance are within the ambit of Section 29(3) of the Limitation Act, 1963. Are appeals arising therefrom within the scope of that section? It is contended on behalf of the appellant that so far as appeals arising therefrom, i.e. from suits and other like proceedings, are concerned there is no reason to extend the said policy of law to such appeals. The submission is that after the adjudication by the first court, parties know where they stand and can decide whether the matter should be taken up in appeal or not; and, moreover, in cases where a decree of divorce or a decree of nullity of marriage has been granted, a finality is to be given to them, so that parties may be certain about the next step they may be intending to take like entering into another marriage. So law fixed a time limit within which the decree may be appealed against, and, where the marriage has been dissolved by a decree of divorce, provides, as is done by Section 15 of the H.M. Act, that till the appeal time is over without an appeal having been preferred, or if an appeal has been presented within time, till it is dismissed, it shall not be lawful for either party to the marriage to marry again. He referred to Section 57 of the Indian Divorce Act, 1869, which according to him, is also based on this principle. The submission in short on behalf of the appellant is that the word 'proceeding' in Section 29(3) of the Limitation Act, 1963 is to be given a restricted meaning. It is argued that that word should be understood as a judicial proceeding analogous to or in the nature of a suit. In that connection the learned counsel lays emphasis on the fact that the word 'proceeding' occurs in that provision in conjunction with the word 'suit' -- 'suit or other proceeding.'

The contention on the side of the respondent is that unless a definite and specified period starting from the date of the decision is prescribed for preferring an appeal and that unless time for preferring appeal is reckoned without excluding any portion of such period on any account, Section 15 would be of no use and avail. According to the learned counsel Section 15 allows a party to a marriage when marriage has been dissolved by a decree of divorce to marry again after the time for appealing has expired without an appeal having been presented and where an appeal has been presented, after the dismissal thereof. According to the respondent's counsel it is for this reason that Section 29(3) of the Limitation Act, 1963 provides that the provisions in that Act shall not apply to any suit or other proceeding under any law for the time being in force with respect to marriage and divorce.

The learned counsel for the respondent in that connection raises the question of the correctness of the decision of our learned brother Balagangadharan Nair, J. in Kuttimalu v. Subramonian, 1981 Ker LT 602 : (AIR 1981 NOC 221) which follows the decision in Chander Dev v. Rani Bala AIR 1979 Delhi 22 and A, (Husband) v. B (Wife) ((898) ILR 22 Bom 612.

It appears to us that the question that is raised requires consideration by a Full Bench. We accordingly adjourn the case to be heard and decided by a Full Bench'.

11. We shall proceed to decide the points involved.

12. By providing for appeals in Section 28 of the Hindu Marriage Act, the decrees are held to be appealable as 'decrees of the Court made in the exercise of its original civil jurisdiction' and the forum for filing such appeal is prescribed by stating that 'every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of that Court'. The appeal under the Hindu Marriage Act is thus a remedy available under the special enactment with all the characteristics of an appeal under the Civil Procedure Code, and the High Court, in appeal has the same jurisdiction and exercises the same power and authority available in respect of every appeal under the Code. Moreover, Section 21 of the Marriage Act expressly provides that all proceedings, under this Act, shall be regulated, as far as may be, by the Code of Civil Procedure. Order XLI of the C.P.C. details the procedure for filing an appeal and the memorandum of appeal has to be accompanied by a copy of the decree. If, in an appeal, under the Code, Section 12 of the Limitation Act will apply, the same result is achieved in an appeal under the Marriage Act, as well, in view of the familiar pattern of legislative scheme adopted in Section 28 of the Act making the decree 'appealable as decrees of the court made in the exercise of original jurisdiction'.

13. We are fortified in taking this view in the light of the Supreme Court rulings interpreting the appellate power under the Representation of the People Act.

14. In Vidyacharan v. Khubchand, AIR 1964 SC 1099 Justice Rajagopala Ayyangar speaking for the majority held thus (Para 6) :--

'The argument was that though the right of appeal in the case before us was conferred by Section 116A of the Representation of the PeopleAct and it was by virtue thereof that the appeal was filed by the respondent to the High Court; it was still an appeal 'under the Civil P.C., 1908, to a High Court'. For this submission learned counsel relied principally on two decisions -- one of the Calcutta and the other of the Madras High Court, and they undoubtedly support him. In Aga Mohd. Hamdani v. Cohen, (1886) ILR 13 Cal 221 as well as in Ramaswami Pillai v. Deputy Collector of Madurai, ILR 43 Mad 51 : AIR 1920 Mad 407 which followed it, the Court held that to attract this article it was not necessary in order to be an 'appeal under the Civil P.C.' within the meaning of those words in Article 156, that the right to prefer the appeal should be conferred by the C.P.C., but that it was sufficient if the procedure for the filing of the appeal and the powers of the Court for dealing with the appeal were governed by that Code. For adopting this construction the Court relied on the reference in Article 156 to Article 151. Article 151 dealt with appeals to the High Court from judgments rendered on the original side of that Court. The right to prefer these appeals was conferred by the Letters Patent constituting the respective High Courts, and not by the Code of Civil Procedure, though the Civil P.C. governed the procedure, jurisdiction and powers of the Court in dealing with the appeals so filed. There would have been need therefore to except cases covered by Article 151 only if the words 'under the Civil P.C.' were understood as meaning appeals for the disposal of which the provisions of the Code of Civil Procedure was made applicable. We might mention that besides the Calcutta and the Madras High Courts a Full Bench of the Allahabad High Court also has in Dropadi v. Hira Lal, (1912) ILR 34 All 496 (FB) adopted a similar construction of the Article, the learned Judges, pointing out that several Indian enactments among them the Indian Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act proceeded on the basis of a legislative practice of conferring rights of appeal under the respective statutes without prescribing any period of limitation within which the appeal should be preferred, but directing the application of the provisions of the Civil Procedure Code to such appeals, the intention obviously being that Article 156 would furnish the period of limitation for such appeals. We consider that these decisions correctly interpret Article 156, and, in any event; we are not prepared to disturb the decisionswhich have stood for so long and on the basis of the correctness of which Indian legislation has proceeded.'

Justice Subba Rao delivering the dissenting judgment, however, agreed on this aspect thus : --

'X X X Under the second part of Sub-section (2) of Section 116A of the Act, a fiction is created, namely, that though a right of appeal is conferred by Section 116A(1) of the Act, the appeal thereunder for the purpose of Sub-section (2) will be deemed to be an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction.

XXX XX

The powers, jurisdiction and authority take inthe powers, jurisdiction and authorityexercisable by an appellate tribunal in regardto various matters prescribed in the Civil P.C.What does the word 'procedure' mean? Theprocedure must necessarily be the proceduregoverning such an appeal. It means inter aliathe manner of receiving an appeal in the court,the preparation of records of the appeal, theposting of the appeal and the manner of itsdisposal. We find it impossible to excludefrom the word 'procedure' the filing andreceiving of an appeal in the Court'.XXX XX

'If so, the procedure prescribed by Order XLI of the Civil P.C. along with the other relevant provisions of the said Code, equally applies to an appeal filed under Section 116A(2) of the Act. The result is that under Section 116A(2) of the Act, the appeal by fiction, is equated with an appeal filed under the Code of Civil Procedure in the matter of not only the exercise of the powers, jurisdiction and authority but also in the matter of procedure to be followed from the date of receipt of the appeal to its final disposal.

XXX XX

If so, Section 12 of the Limitation Act is attracted, and the 1st respondent was entitled to exclude the time taken by him for obtaining the copy of the order.'

15. In the later decision in K.V. Rao v. B. N. Reddi (AIR 1969 SC 872} it was held thus (Para 17) :-

'In our view, Sub-section (2) of Section 116A empowered the High Court to treat an appeal under that section presented to it as if it were an appeal from an original decree passed by a Court within the local limits of its civil appellatejurisdiction. Consequently, the jurisdiction, powers and authority of the High Court would be the same as in an appeal from an original decree of a lower court. In other words, in entertaining the appeal and disposing of it the High Court could exercise the same powers as were available to it in an appeal from a decree of a lower Court. To such an appeal the powers of the High Court under Section 12 of the Limitation Act would necessarily be attracted'.

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 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 cannot be excluded.

19. We shall therefore summarise our conclusions:

(1) The Hindu Marriage Act provides for the application of the Limitation Act to appeals against decrees for divorce by treating these decrees as having been made in the exercise of the original civil jurisdiction of that court attracting the provisions of the Civil Procedure Code as well

(2) As the Limitation Act is thus applicable to proceedings with respect to marriage and divorce under the Hindu Marriage Act, the saving provision in section 29(3) of the Limitation Act operates.

(3) In any case, appeals against decree for divorce are not 'other proceedings' within the meaning of Section 29(3) of the Act and are therefore outside its mischief.

(4) By the conjoint operation of Section 29(2) and (3) of the Limitation Act, Sections 4 - 24 of the Limitation Act apply to appeals against decrees for divorce under the Hindu Marriage Act.

In the result, we hold that Section 12(2) of the Limitation Act applies to appeals under the Hindu Marriage Act and this appeal was filed within time. The preliminary objection is overruled. The appeal will be heard on the merits by a Division Bench.


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