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Mrs. Debi Bhaduri Vs. Kumarjib Bhaduri - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtKolkata High Court
Decided On
Case NumberFull Bench Ref. No. 2 of 1978 in A.F.O.D. No. 139 of 1978
Judge
Reported inAIR1980Cal1
ActsHindu Marriage Act, 1955 - Section 28(4); ;Hindu Marriage (Amendment) Act, 1976; ;Marriage Laws (Amendment) Act, 1976 - Section 39(1); ;Limitation Act, 1963
AppellantMrs. Debi Bhaduri
RespondentKumarjib Bhaduri
Appellant AdvocateB.K. Bose and ;Sambhunath Chatterjee, Advs.
Respondent AdvocateRanjit Kr. Banerjee and ;Sunil Krishna Datta, Advs.
Cases ReferredHer Highness Ruckmaboye v. Lulloobhoy Mottichund
Excerpt:
- .....1976 the marriage laws (amendment) act, 1976 came into force amending certain provisions of the hindu marriage act, 1955 and the special marriage act, 1954.4. on july 19, 1977 the trial court passed a decree for divorce.5. on september 6, 1977 the present appeal was preferred.6. section 28 of the hindu marriage act, 1955, as it originally stood, was as follows:--'all decrees and orders made by the court in any proceeding under this act shall be enforced in like manner as the decrees and orders of the court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force; provided that there shall be no appeal on the subject of costs only.' 7. in view of the above provisions the appeal to this court was covered by.....
Judgment:

Sankar Prasad Mitra, C.J.

1. This matter has been referred to a Full Bench under the provisions of Rule 3 of Chapter VII of the Appellate Side Rules by a Bench consisting of Anil K. Sen and B. C. Chakrabarti, JJ.

2. On August 14, 1974 the respondent in this appeal instituted Matrimonial Suit No. 375 of 1974 (since renumbered as Matrimonial Suit No. 24 of 1976) in the 9th Court of the Additional District Judge at Alipore against the appellant. In the plaint a decree for judicial separation was originally claimed. Later on, the plaint was amended and a decree for divorce was asked for.

3. On May 27, 1976 the Marriage Laws (Amendment) Act, 1976 came into force amending certain provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

4. On July 19, 1977 the trial court passed a decree for divorce.

5. On September 6, 1977 the present appeal was preferred.

6. Section 28 of the Hindu Marriage Act, 1955, as it originally stood, was as follows:--

'All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force; Provided that there shall be no appeal on the subject of costs only.'

7. In view of the above provisions the appeal to this Court was covered by Article 116 of the Limitation Act, 1963 which provided for a period of 90 days from the date of the decree which was a decree under the Code of Civil Procedure, 1908 and the appeal was to the High Court from that decree.

8. The above Section 28 of the Hindu Marriage Act, 1955 was amended by the said Amendment Act. The amended Section 28(4) ran thus:

'Every appeal under this section shall be preferred within a period of 30 days from the date of the decree or order.'

9. In the instant appeal the Stamp Reporter took the view that the amended provision noted above would not be applicable because the proceeding out of which the appeal arose was instituted before the amendment. According to the Stamp Reporter the amendment had no application to pending proceedings. He computed limitation on the basis of Article 116 of the Limitation Act, 1963 and made a report that the appeal was presented in time.

10. At the time of preferring the appeal an application under Section 5 of the Limitation Act was also made by the appellant. But on the basis of the Stamp Reporter's report, M. M. Dutt and R. K. Sharma, JJ. allowed the appellant petitioner to withdraw the application under Section 5 of the Limitation Act.

11. The respondent then appeared and made an application raising a dispute that the appeal was barred by limitation. The respondent also prayed that the po:nt of limitation should be decided as a preliminary issue.

12. The Stamp Reporter made his report relying on a decision of N. C. Mukherji and B. C. Ray, JJ. in F.M.A.T-No. 372 of 1977 (since renumbered as F.M.A. No. 506 of 1977). This Division Bench has held that there is no retrospective force in the amended Act and the right of appeal being a substantive right, the time for preferring an appeal would be governed by the law as it stood before the amending Act came into force.

13. The respondent's application raising the question of limitation came up for hearing before Anil K. Sen and B. C. Chakrabavti, JJ. This Division Bench was unable to agree with the previous Division Bench on the issue of limitation. That is why the present reference was made. The following questions have been referred to us:

1 Whether in view of Section 39 (1) (i) of the Marriage Laws (Amendment) Act, 1976, the view expressed by the learned Judges N. C. Mukherji and B. C. Ray that there is no retrospective force in the amending Act is a correct proposition of law?

2. What would be the period of limitation for presenting an appeal under Section 28 of the Hindu Marriage Act where the proceeding out of which the appeal arises was pending at the date of commencement of the Marriage Laws (Amendment) Act, 1976, but was decreed after such commencement?

14. The Division Bench presided over by Anil K. Sen, J. has noted, inter alia, that one of the most vital sections of the Amendment Act has not been brought to the notice of the Division Bench presided over by N. C. Mukherji, J. and that section is Section 39 (1) which is as follows:--

'All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such court--

(i) if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act;

(ii) if it is a petition or proceeding under the Special Marriage Act, then so far as may be as if it had been originally instituted therein under the Special Marriage Act, as amended by this Act.'

15. It seems that there has been a confusion in the printing of the Amendment Act itself. In Chapter II amendments to the Hindu Marriage Act, 1955 have been mentioned. In Chapter III amendments to the Special Marriage Act, 1954 have been specified. Section 39 (1) which covers amendments to both the Acts should have been printed in a different chapter altogether. But that unfortunately has not been done.

16. It is clear that in view of the provisions of Section 39 (1) (i) the present appeal would be governed by the Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976 and the period of limitation prescribed by the Amendment Act and not the original period under the Limitation Act, 1963 would be applicable to the present appeal.

17. The instant appeal, therefore, should have been filed within a period of 30 days as prescribed by Section 28(4) of the Hindu Marriage Act, 1955 as amended by the Amendment Act of 1976. The appeal, therefore, was barred by limitation and the application under Section 5 of the Limitation Act had to be dealt with and disposed of by this Court on merits.

18. We may also point out that it is well settled by a long series of decisions that although the right of appeal is a substantive right, issues or questions relating to limitation in respect of such appeals are merely procedural. The earliest judgment on this subject to which our attention has been drawn is the judgment of the Judicial Committee in Her Highness Ruckmaboye v. Lulloobhoy Mottichund reported in (1851-54) 5 Moo Ind App 234 (PC).

The Judicial Committee at p. 265 has observed:--

'In truth, it has become almost an axiom in jurisprudence, that a law of prescription, or law of limitation, which is meant by that denomination, is a law relating to procedure having reference only to the lex fori.'

19. It is also well known that alterations in the form of procedure are always retrospective unless there is some good reason or other why they should not be. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie to all actions pending as well as future: vide Craies on Statute Law, 7th Edition, p. 401.

20. The law of limitation being a procedural law, whenever amended, should be retrospective in operation, unless there are strong reasons to the contrary. In the present Amendment Act, however, there is an express provision in this behalf in Section 39 (1).

21. We therefore answer the questions referred to us as follows:

1. No.

2. 30 days.

22. The appeal may now be placed before the appropriate Bench for disposal. We make it clear that this decision would not affect or prejudice the rights, if any, of the appellant to make an application under Section 5 of the Limitation Act-23. The reference is accordingly disposed of

Sabyasachi Mukharji, J.

I agree.

S.K. Oatta, J.

I agree.


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