MANU/SC/0513/1989

Equivalent Citation: AIR1989SC 1477, 1989(2)APLJ (SC ) 45, 1989 AWC 934 SC , I(1989)DMC 549SC , 1989(2)HLR48, JT1989(3)SC 48, 1989-2-
LW485, 1989MPLJ372(SC ), 1989(1)SC ALE867, (1989)2SC C 613, [1989]2SC R137, 1989(2)UJ192

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 708 of 1988
Decided On: 29.03.1989
Appellants:Lata Kamat
Vs.
Respondent:Vilas
Hon'ble Judges/Coram:
G.L. Oza and S.R. Pandian, JJ.
JUDGMENT
G.L. Oza, J.
1 . This appeal after leave has been filed by the appellant wife arising out of a decree
under Section 12(1)(d) of the Hindu Marriage Act (hereinafter referred to as the 'Act'), a
decree declaring the marriage a nullity,
2 . The respondent husband instituted a petition on 7th March, 1984 for a declaration
that the marriage of the respondent with the appellant wife was a nullity under Sub-
section (1) Sub-clause (d) of Section 12 of the Act on the ground that appellant, the
wife at the time of marriage with the respondent was pregnant by some one other than
the respondent. The appellant wife contested the allegations and ultimately the IIIrd
Joint Civil Judge, Senior Division Nagpur granted a decree in favour of the respondent
by his judgment dated 3rd May, 1985 declaring the marriage to be a nullity.
3. The appellant wife filed a regular civil appeal No. 436 of 1985 on 19.7.1985 before
the IInd Additional District Judge, Nagpur. Before this appeal could be filed, the
respondent husband married one Miss Sarita daughter of Laxmanrao Modak on
27.6.1985, and in the appeal filed by the appellant, the respondent raised a preliminary
objection contending that after passing of the judgment and decree dated 3,5.1985 by
the trial court he has married Sarita daughter of Laxmanrao Modak on 27.6.1985. It was
further alleged in the application that this marriage was solemnised on 27.6.1985 when
there was no impediment against the respondent husband which could come in his way
for contracting this marriage as the parties were relegated to the position as if they
were not married and therefore this marriage performed on 27.6.1985 of respondent
with Sarita was legal and valid and the consequence of this is that the appeal filed by
the appellant was not tenable having been rendered infructuous. The IInd Additional
District Judge, Nagpur vide his order dated 17.8.1985 allowed the objection of the
respondent and dismissed the appeal as infructuous with a direction to the parties to
bear their own respective costs.
4. Against this the appellant preferred a second appeal before the High Court. The High
Court by its judgment dated 20.2.1987 dismissed the appeal holding that as the appeal
was filed by the appellant after the remarriage of the respondent it has become
infructuous. The learned Judge also dismissed the application for maintenance pendent
elite and aggrieved by this judgment of the High Court after obtaining leave this appeal

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is filed in this Court.
5. It was contended by learned Counsel for the appellant that the language of Section
15 clearly goes to show that it refers to a marriage which has been dissolved and it also
talks of right of appeal against the decree. In view of this language used in Section 15 it
is not possible to distinguish between a decree of nullity under Section 11 or 12 and
decree of divorce under Section 13. It was contended that the word 'divorce' has been
used in this provision in a broader sense indicating that where the marriage is dissolved
or the relationship is brought to an end by decree of court whether it is by declaring the
marriage invalid or dissolving it by a decree but result is the same and it was contended
that it is because of this that in this Act there is neither any specific definition provided
for the term 'divorce' or a decree of divorce. It was also contended that when language
of Section 15 refers to a right of appeal will have to look to the provision providing for
an appeal and Sec. 28 of the Act which provides for appeals against all decrees made by
the court in proceedings under this Act. It was therefore contended that the
interpretation put by the lower court on the basis of judgments of some of the High
Courts that Section 15 will not apply to a decree under Section 12 but would only apply
when there is a decree under Section 13 does not appear to be the correct view and on
this basis it was contended by learned Counsel for the appellant that the courts below
were wrong in coming to the conclusion that the appeal had become infructuous
because the respondent has married a second time.
6 . Learned Counsel also referred to meaning of the word 'divorce' in Webster's Third
New International Dictionary and Shorter Oxford English Dictionary. Learned Counsel in
support of her contentions referred to the two decisions of this Court in Chandra Mohini
Srivastava v. Avinash Prasad Srivastava and Anr. MANU/SC/0179/1966 :
[1967]1SCR864 and Tejinder Kaur v. Gurmit Singh MANU/SC/0537/1988 :
[1988]2SCR1098 . Although on the basis of these decisions what was contended was"
that the provisions of the Act have to be interpreted broadly. Learned Counsel also
placed reliance on the decision in Vathsula v. N. Manoharan MANU/TN/0229/1959 :
AIR1959Mad405 . Learned Counsel however, conceded that there are decisions in
Mohanmurari v. Smt. Kusumkumari MANU/MP/0055/1965 : AIR1965MP194 , Jamboo
prasad Jain v. Smt. Malti Prubha and Anr. MANU/UP/0066/1979 : AIR1979All260 and
Pramod Sharma v. Smt. Radha MANU/PH/0060/1976: AIR 1976 Pun 355 where the
question of Section 15 in relation to a decree under Section 12 has been specifically
considered and decided against the appellant, but learned Counsel contended that the
scope and language of Section 15 coupled with the language of Section 28 has not been
considered by any one of these courts. Learned Counsel for the respondent on the other
hand contended that the language of Section 15 refers to "marriage dissolved by decree
for divorce" whereas in the present case, the marriage was not dissolved by decree of
divorce. The marriage was declared as nullity under Sections 11 and 12 of the Act.
Sections 11 and 12 of the Act, according to the learned Counsel, talk of annulment of
marriage "by decree of nullity and it was contended that it is because of this that the
various High Courts have taken a view that Section 15 will not apply to cases where a
marriage is annulled by a decree of nullity in accordance with Section 11 or 12 of the
Act. Learned Counsel however frankly conceded that so far as Section 28 is concerned,
the language is so wide that an appeal will lie even against a decree under Section 11
or 12 and if an appeal lies under Section 28 even against the order or a decree passed
under Section 11 or 12, the phrase ''if there is such a right of appeal, the time for filing
has expired without an appeal having been presented' are to be given its meaning, it
would be clear that Section 15 also will apply to decrees by which the marriage is either
dissolved or annulled i.e. decrees which are passed under Section 12 or under Section
13. Learned Counsel in face of this raised another contention pertaining to the

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application of the Limitation Act which we will examine later.
7. In order to understand the meaning of Section 15 of the Act it would be better if we
first notice that the words 'decree for divorce or decree for nullity' has not been defined
in any one of the provisions of this Act. Section 12 Clause (1) of the Act reads:
Any marriage solemnized, whether before or after the commencement of this
Act, shall be voidable and may be annulled by a decree of nullity on any of the
following grounds namely.
xxx
Similarly Section 13 Clause (1) of the Act reads:
(1) Any marriage solemnized, whether before or after the commencement of
this Act may, on a petition presented by either the husband or wife, be
dissolved by a decree of divorce on the ground that the other party.
xxx
It is no doubt true that these two sections have different phraseology. In Section 12 it is
said that the marriage be annulled by a decree of nullity whereas in Section 13, the
phraseology used is 'dissolved by decree of divorce" but in substance the meaning of
the two may be different under the circumstances and on the facts of each case but the
legal meaning or the effect is that by intervention of the court the relationship between
two spouses has been severed either in accordance with the provisions of Section 12 or
in accordance with the provisions of Section 13. Probably it is because of this reason
that the phrase 'decree of nullity' and 'decree of divorce' have not been defined. Section
28 of the Act reads:
28 Appeal from decrees and orders (1) All decrees made by the court in any
proceeding under this Act shall, subject to the provisions of Sub-section (3), be
applicable 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 decisions of the court given in the exercise of its original
civil jurisdiction.
(2) Orders made by the Court in any proceeding under this Act, under Section
25 or Section 26 shall, subject to the provisions of Sub-section (3) be
appealable if they are not interim orders, and every such appeal shall lie to the
court to which appeals ordinarily lie from the decision of the Court given in
exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty
days from the date of the decree or order.
Under this provision all decrees made by the Court in any proceeding under this Act are
appealable. Apparently any proceeding under this Act will refer to a proceeding
instituted under Section 13 or a proceeding instituted under Sections 11 or 12 as
Sections 11 or 12 talks of 'decree for nullity' and Section 13 talks of decree for divorce'
but in order to provide an appeal against all decrees Section 28 has used a very wide
terminology which include degrees under Sections 11, 12 and 13 and so far as this is
concerned it could hardly be contested as the language of Section 28 itself is so clear. It

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is in this context that we analyse the language of Section 15. It reads:
Divorced persons when may marry again. 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.
Before we examine the phraseology 'dissolved by decree of divorce' it would be
worthwhile to examine the remaining part of this provision, especially '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'. If we give narrow
meaning to the term-dissolved by decree of divorce' as contended by the learned
Counsel for the respondent, it will mean that if it is a decree under Section 13 then
either party to the proceeding have to wait till the period of appeal has expired or if the
appeal is filed within limitation till the appeal is disposed of and before that it will not
be lawful for either party to the marriage to marry again. The phrase 'either party to the
marriage' if is co-related with the first part of the Section, marriage which has been
dissolved by decree of divorce will indicate that what was provided in this Section was
that when a relationship of marriage is dissolved by decree of court and either no
appeal is filed or if filed, is dismissed then either party to the marriage which has been
dissolved by the process of law by a decree are free to marry again. The only words on
the basis of which the narrow meaning has been given to this Section by some of the
High Courts is on the basis of the words 'decree of divorce', it could not be doubted that
where the marriage is dissolved under Sections 11, 12 or 13 by great of a decree of
nullity or divorce, the relationship is dissolved or in any way is brought to an end and it
would be significant that if the language of Section 15 is interpreted in the light of
Section 28 which provides for appeal and confers a right of appeal on either party to
proceedings which culminate into a decree bringing an end to the relationship of
marriage then we will have to infer that the Legislature so far as decrees under Section
13 are concerned wanted the right of appeal to survive but in decrees under Section 11
or 12 the Legislature wanted the right of appeal to be subject to the will of the other
party. As it is apparent that if what is contended by the learned Counsel for the
respondent and held by some of the High Courts is accepted that Section 15 will not
apply to cases when a decree is passed under Section 11 or 12 it will mean that as soon
as a decree is passed the party aggrieved may appeal but the other party by remarriage
would make the appeal infructuous and therefore the right of appeal of one of the
parties to the decree under Section 28 will be subject to the act of the other party in
cases where decree is passed under Sections 11 or 12 but if it were so, the Legislature
would have provided a separate provision for appeal when there is a decree under
Section 13 and a different provision for appeal when there is a decree under Sections
11 or 12 as the right of appeal against a decree under Section 11 or 12 could only be a
limited right subject to the desire of the other party. The Legislature in its wisdom has
enacted Section 28 conferring a right of appeal which is unqualified, unrestrictive and
not depending on the mercy or desire of a party against all decrees in any proceeding
under this Act which will include a decree under Sections 11, 12 or 13 and therefore the
only interpretation which could be put on the language of Section 15 should be which
will be consistent with Section 28. This phrase 'marriage has been dissolved by decree
of divorce' will only mean where the relationship of marriage has been brought to an
end by the process of court by a decree.
8. It is plain that the word 'divorce' or 'decree of divorce' have not been defined in this
Act. The meaning of the word 'divorce' indicated in Shorter Oxford English Dictionary

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reads:
Divorce-1. Legal dissolution of marriage by a court or other competent body, or
according to forms locally recognize, 2. Complete separation; disunion of
things closely united ME. 3. That which causes divorce 1607.
Similarly the meaning of the word 'divorce' as indicated in Webster's Third New
International Dictionary reads:
Divorce- 1 : a legal dissolution in whole or in part of a marriage relation by a
court or other body having competent authority.
In Vathsala's case MANU/TN/0226/1969 : AIR 1959 Mad 405 the Court had occasion to
consider the effect of an application for setting aside an ex parte decree which was
granted under Section 12 and it was contended that while the application by the
husband for setting aside the ex parte decree was pending the wife contracted
remarriage. Will not remarriage have the effect of making the application to set aside ex
parte decree infructuous ? More or less a similar question is in the present case where it
has been held that by marrying the second time the respondent made the appeal filed
by the appellant infructuous, and the learned Judge placing reliance on the observations
made in Chandra Mohini's case MANU/SC/0179/1966 : [1967]1SCR864 held:
That is the principle of Smt. Chandra Mohim v. Avinash Prasad AIR 1967 SC
851. The principle laid down in that decision has general application. The
Supreme Court pointed out that on dissolution of marriage, a spouse can
lawfully marry only when there is no right of appeal against the decree
dissolving the marriage or if there is a right of appeal, the time for filing of an
appeal has expired or the appeal presented has been dismissed.
The question about an appeal to the Supreme Court has also been considered in a
recent decision of this Court in Tejinder Kaur's case MANU/SC/0537/1988 :
[1988]2SCR1098 wherein the observations made in Chandra Mohini's case
MANU/SC/0179/1966 : [1967]1SCR864 have been quoted and it is held that:
In view of this, it was incumbent on the respondent to have enquired about the
fate of the appeal. At any rate, the High Court having dismissed the appeal on
16th July, 1986 the petitioner could have presented a special leave petition
within ninety days therefrom under Article 133(c) of the Limitation Act, 1963
i.e. till 14th September, 1986. Till that period was over, it was not lawful for
either party to marry again as provided by Section 15. It was incumbent on the
respondent, as observed in Lila Gupta's case : ILR 1969 1 All. 92 to have
apprise himself as to whether the appeal in the High Court was still pending;
and if not, whether the period for filing a special leave petition to this Court has
expired. We must accordingly overrule the views expressed in Chandra Mohini's
AIR 1967 SC 581 and Lila Gupta cases : ILR 1969 (1) All. 92. We wish to add
that in the subsequent decision in Lila Gupta the Court while dealing with the
effect of deletion of the proviso observed:
The net result is that now since the amendment parties whose marriage
is dissolved by a decree of divorce can contract marriage soon
thereafter provided of course the period of appeal has expired.
The Court adverted to the word of caution administered by Wanchoo, J,
in Chandra Mohini's case and reiterated:

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 Even though it may not have been unlawful for the husband to
have marriage immediately after the High Court's decree for no
appeal as of right lies from the decree of the High Court to this
Court, still it was for the respondent to make sure whether an
application for special leave had been filed in this Court and he
could not, by marring immediately after the High Court's
decree, deprive the wife of the chance of presenting a special
leave petition to this Court. If a person does so, he takes a risk
and could not ask the Court to revoke the special leave on that
ground.
It is no doubt true that in these two decisions, this Court was considering the impact of
an appeal against a decree under Section 13 itself and not a decree under Section 11 or
12 but as indicated earlier if the impact of the phraseology 'right of appeal' occurring in
Section 15 is to be examined in the light of language of Section 28 as discussed earlier
there will be no difference in respect of the right of appeal whether the decree is under
Sections 11, 12 or 13.
9. The decisions of the High Court on which reliance is placed by courts below and the
learned Counsel for the respondent are : (i) Mohanmurari MANU/MP/0055/1965 :
AIR1965MP194 (ii) Jamboo Prasad Jain MANU/UP/0066/1979 : AIR1979All260 and
Pramod Sharma MANU/PH/0060/1976: AIR 1976 Pun 355. In none of these decisions
the impact of the right of appeal occurring in Section 15 in view of the language of
Section 28 where the right of appeal is conferred, has been considered. In our opinion,
therefore the view taken by the High Court is not correct. What Section 15 means when
it uses the phrase 'has been dissolved by decree of divorce' ? It only means where the
relationship of marriage has been brought to an end by intervention of court by a
decree, this decree will include a decree under Sections 11, 12 or 13 and therefore the
view taken by all the courts below is not sustainable. The detention of the learned
Counsel for the appellant has to be accepted so far as this question is concerned.
10. Learned Counsel for the respondent contended that as Section 28 Sub-clause (4) of
the Act provides for the limitation for preferring an appeal in view of Section 29 Clause
(3). Provisions of Limitation Act will not apply and if they do not apply as the trial court
disposed of the matter by a decree dated 3.5.1985 the period of limitation for appeal
could only be upto 3.6.1985 as the period for obtaining copies as contemplated under
Section 12 Clause (2) of the Limitation Act will not be applicable and therefore even if it
is held that under Section 15 the respondent had to wait till the period of limitation for
appeal expires as he entered into a marriage on 27.6.1985 it was clearly after the
period of limitation has expired and therefore this marriage apparently made the appeal
filed by the appellant infructuous. It is not in dispute that if the period for obtaining
copy of the judgment and decree is computed as contemplated in Section 12 Clause (2)
of the Limitation Act, the appeal filed by the appellant before the first appellate court
was within the time and if Section 12 clause 2 is held applicable then this marriage
which the respondent performed on 27.6.1985 could not be said to be a marriage which
he was entitled to perform in view of language of Section 15 and therefore it could not
be said that this marriage rendered the appeal filed by the appellant infructuous;
Learned Counsel for the respondent mainly placed reliance on the language of Section
29 clause 3 of the Limitation Act whereas learned Counsel appearing for the appellant
contended that Section 29 clause 3 talks of suit or proceedings and therefore the phrase
'proceedings' used in clause 3 of Section 29 could only refer to suits or other original
proceedings and it will not apply to appeals as is very clear from the definition of 'suit'
as defined in Section 2(1) of the Limitation Act. It was therefore contended that the

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provisions of the Limitation Act will be applicable to appeals under Section 28 of the
Act. Learned Counsel for the appellant placed reliance on the decisions in Chander Dev
Chadha v. Smt. Rani Bala MANU/DE/0232/1978 : AIR1979Delhi22 , Smt. Sipra Dey v.
Ajit Kumar Dey MANU/WB/0006/1988 : AIR1988Cal28 and Kantibai v. Kamal Singh
Thakur MANU/MP/0053/1978 : AIR1978MP245 .
11. Section 2(1) of the Limitation Act defines the 'suit'. It reads:
"suit" does not include an appeal or an application." It clearly enacts that suit
does not include an appeal or an application. Section 29 of the Limitation Act
reads:
29. Savings (1) Nothing in this Act shall affect Section 25 of the Indian
Contract Act, 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 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 insofar 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
Easement Act, 1882, may for the time being extend.
Clause (2) of this Section provides that where the limitation provided by the special or
local law is different from the period prescribed by the Schedule, the provisions of
Section 3 will apply. In the Hindu Marriage Act, the period of appeal is prescribed. In
the schedule under the Limitation Act, there is no provision providing for an appeal
under the Hindu Marriage Act. Thus the limitation prescribed under the Hindu Marriage
Act is different and is not prescribed in the Schedule. Thus the provisions of Section 3
shall apply and therefore it is clear that to an appeal or application the provisions
contained in Sections 4 to 24 shall apply, so far and to the extent to which they are not
expressly excluded by the special or local law and Clause (3) of this Section provides
that the provisions of this Act shall not apply to any suit or other proceedings under any
marriage law. It is therefore clear that so far as Clause (3) is concerned, the impact of it
will be that the provisions of the Limitation Act will not apply so far as a suit or an
original proceeding under the Act is concerned but Clause (3) will not govern an appeal,
12. The Schedule in the Limitation Act do not provide for an appeal, under the Hindu
Marriage Act but it is only provided in Clause (4) of Section 28 of the Hindu Marriage
Act. Thus the limitation provided in Clause (4) of Section 28 is different from the
Schedule of the Limitation Act. According to Clause (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

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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 Clause (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 Chadhas case MANU/SC/0179/1966 : [1967]1SCR864 held
as under:
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 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 a 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 MANU/MH/0055/1953 : AIR1953Bom35 (supra)
approved by the Supreme Court in Vidyacharan Shukla v. Khubchand
MANU/SC/0120/1963 : [1964]6SCR129 (1102).
Once the test is satisfied the provisions of Sections 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 therefore 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 Deys case
MANU/WB/0006/1988 : AIR1988Cal28 and also the M.P. High Court in Kantibai's case
AIR1988Cal28 . 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.
13. Consequently the appeal is allowed. The judgment passed by the High Court as well
as by the by the first appellate court is set aside We remand the matter back to the first
appellate court as that court had disposed of the appeal treating it to have been
rendered infructuous We therefore direct that the learned IInd Additional District Judge,
Nagpur before whom the appeal was filed will hear the appeal on merits and dispose it
of in accordance with law.
1 4 . A suggestion was made by the counsel for the appellant about some tests and
willingness of the appellant for getting those test performed which could be used as
additional evidence in respect of the paternity of the child born to the appellant which
has been made a ground for declaration of marriage as nullity. Without expressing any
opinion, it would be appropriate for the lower appellate court to consider the matter if
parties approach about additional evidence. The appellant shall be entitled to costs of
this appeal. Costs quantified at Rs. 2500/-.

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