Civil Appeal No 708 of 1988
From the Judgment and Order dated 202
1987 of t he Bombay High Court in SA No 282 of 1985
Mrs Shyamla Pappu KK Rai and Mrs Indira Sawhney f or the Appellant
GL Sanghi and AK Sanghi for the Respondent
The Judgment of the Court was delivered by OZA J
This appeal after leave has been filed by the appe l lant 140 wife arising out of a decree under Section 121d of t he Hindu Marriage Act hereinafter referred to as the Act  a decree declaring the marriage a nullity
The respondent husband instituted a petition on 7 th March 1984 for a declaration that the marriage of t he respondent with the appellant wife was a nullity under su b section 1 sub clause d of section 12 of the Act on t he ground that appellant the wife at the time of marriage wi th the respondent was pregnant by some one other than t he respondent
The appellant wife contested the allegations a nd ultimately the IIIrd Joint Civil Judge Senior Divisi on Nagput granted a decree in favour of the respondent by h is judgment dated 3rd May 1985 declaring the marriage to be a nullity
The appellant wife filed a regular civil appeal No 4 36 of 1985 on 1971985 before the IInd Additional Distri ct Judge Nagput
Before this appeal could be filed the r e spondent husband married one Miss Sarita daughter of Laxma n rao Modak on 2761985 and in the appeal filed by t he appellant the respondent raised a preliminary objecti on contending that after passing of the judgment and decr ee dated 351985 by the trial court he has married Sari ta daughter of Laxmanrao Modak on 2761985
It was furth er alleged in the application that this marriage was solemnis ed on 2761985 when there was no impediment against the r e spondent husband which could come in his way for contracti ng this marriage as the parties were relegated to the positi on as if they were not married and therefore this marria ge performed on 2761985 of respondent with Sarita was leg al and valid and the consequence of this is that the appe al filed by the appellant was not tenable having been render ed infructuous
The IInd Additional District Judge Nagpur vi de his order dated 1781985 allowed the objection of t he respondent and dismissed the appeal as infructuous with a direction to the parties to bear their own respective cost section Against this the appellant preferred a second appe al before the High Court
The High Court by its judgment dat ed 2021987 dismissed the appeal holding that as the appe al was filed by the appellant after the re marriage of t he respondent it has become infructuous
The learned Judge al so dismissed the application for maintenance pendent elite a nd aggrieved by this judgment of the High Court after obtaini ng leave this appeal is filed in this Court
It was contended by learned counsel for the appella nt that the language of Sec
15 clearly goes to show that it refers to a marriage 141 which has been dissolved and it also talks of fight of appeal against the decree
In view of this language used in Sec
15 it is not possible to distinguish between a decr ee of nullity under Section 11 or 12 and decree of divor ce under Section 13
It was contended that the word divorc e  has been used in this provision in a broader sense indica t ing that where the marriage is dissolved or the relationsh ip is brought to an end by decree of court whether it is by declaring the marriage invalid or dissolving it by a decr ee but result is the same and it was contended that it is because of this that in this Act there is neither any sp e cific definition provided for the term divorce  or a decr ee of divorce
It was also contended that when language of Section 15 refers to a fight of appeal will have to look to the provision providing for an appeal and Sec
28 of the A ct which provides for appeals against all decrees made by t he court in proceedings under this Act
It was therefore co n tended that the interpretation put by the lower court on t he basis of judgments of some of the High Courts that Sec
15 will not apply to a decree under Sec
12 but would on ly apply when there is a decree under Sec
13 does not appe ar to be the correct view and on this basis it was contended by learned counsel for the appellant that the courts below we re wrong in coming to the conclusion that the appeal had beco me infructuous because the respondent has married a seco nd time
Learned counsel also referred to meaning of the wo rd divorce  in Webster s Third New International Dictiona ry and Shorter Oxford English Dictionary
Learned counsel in support of her contentions referred to the two decisions of this Court in Chandra Mohini Srivastava vs Avinash Pras ad Srivastava  another  and Tejinder Kaur vs Gurmit Singh AIR 1988 SC 839 Although on the basis of the se decisions what was contended was that the provisions of t he Act have to be interpreted broadly
Learned counsel al so placed reliance on the decision in Vathsala vs N Manohara n AIR 1969 Madras 405
Learned counsel however conceded th at there are decisions in Mohanmurari vs Smt
Kusumkumari A IR 1965 MP 194
Jamboo Prasad Jain vs Smt
Malti Prabha a nd Anr AIR 1979 Allahabad 260 and Pramod Sharma vs Sm t Radha AIR 1976 Punjab 355 where the question of Section 15 in relation to a decree under Sec
12 has been specifical ly considered and decided against the appellant but learn ed counsel contended that the scope and language of Sec 15 coupled with the language of Sec
28 has not been consider ed by any one of these courts
Learned counsel for the respon d ent on the other hand contended that the language of Sec 15 refers to marriage dissolved by decree for divorce where as in the present case the mar 142 riage was not dissolved by decree of divorce
The marria ge was declared as nullity under Sections 11 and 12 of the Ac t Sections 11 and 12 of the Act according to the learn ed counsel talk of annulment of marriage by decree of null i ty and it was contended that it is because of this that t he various High Courts have taken a view that Sec 15 will n ot apply to cases where a marriage is annulled by a decree of nullity in accordance with Sections 11 or 12 of the Ac t Learned counsel however frankly conceded that so far as Se c 28 is concerned the language is so wide that an appeal wi ll lie even against a decree under Section 11 or 12 and if an appeal lies under Sec
28 even against the order or a decr ee passed under Sections 11 or 12 the phrase if there is su ch a right of appeal the time for filing has expired witho ut an appeal having been presented  are to be given its mea n ing it would be clear that Sec 15 also will apply to decrees by which the marriage is either dissolved or a n nulled ie decrees which are passed under Sec
12 or und er Sec 13
Learned counsel in face of this raised anoth er contention pertaining to the application of the Limitati on Act which we will examine later
In order to understand the meaning of Sec 15 of the A ct it would be better if we first notice that the words decr ee for divorce  or decree for nullity  has not been defined in any one of the provisions of this Act
12 clause 1 of the Act reads Any marriage solemnized whether before or after the co m mencement of this Act shall be voidable and may be annull ed by a decree of nullity on any of the following groun ds namely Similarly Sec
13 clause 1 of the Act reads 1 Any marriage solemnized whether before or after t he 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 143 It is no doubt true that these two sections have differe nt phraseology
In section 12 it is said that the marriage be annulled by a decree of nullity whereas in Section 13 t he phraseology used is dissolved by decree of divorce but in substance the meaning of the two may be different under t he circumstances and on the facts of each case but the leg al meaning or the effect is that by intervention of the cou rt the relationship between two spouses has been severed eith er in accordance with the provisions of Section 12 or in a c cordance with the provisions of Section 13
Probably it is because of this reason that the phrase decree of nullit y  and decree of divorce  have not been defined
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 decre es of the court made in the exercise of its original civ il jurisdiction and every such appeal shall lie to the Cou rt to which appeals ordinarily lie from the decisions of t he court given in the exercise of its original civil jurisdi c tion
2 Orders made by the Court in any proceeding under th is Act under Section 25 or Section 26 shall subject to t he provisions of sub section 3 be appealable if they are n ot interim orders and every such appeal shall lie to the cou rt to which appeals ordinarily lie from the decision of t he Court given in exercise of its original civil jurisdiction  3 There shall be no appeal under this section on t he subject of costs only
4 Every appeal under this section shall be preferr ed within a period of thirty days from the date of the decr ee or order   Under this provision all decrees made by the Court in a ny proceeding under this Act are appealable
Apparently a ny proceeding under this Act will refer to a proceeding inst i tuted under Section 13 or a proceeding instituted und er Sections 11 or 12 as Sections 11 or 12 talks of decree f or 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 decrees und er 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 is in this context that we 144 analyse the language of Section 15
It reads Divorced persons when may marry again When a marriage h as been dissolved by a decree of divorce and either there is no fight of appeal against the decree or if there is such a fight of appeal the time for appealing has expired witho ut an appeal having been presented or an appeal has been pr e sented but has been dismissed it shall be lawful for eith er party to the marriage to marry again
 Before we examine the phraseology dissolved by decree of divorce  it would be worthwhile to examine the remaini ng part of this provision especially if there is such a fig ht of appeal the time for appealing has expired without an appeal having been presented or an appeal has been present ed but has been dismissed 
If we give narrow meaning to t he term dissolved by decree of divorce  as contended by t he learned counsel for the respondent it will mean that if it is a decree under Sec 13 then either party to the procee d ing 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 eith er party to the marriage to marry again
The phrase eith er party to the marriage  if is co related with the first pa rt of the Section marriage which has been dissolved by decr ee of divorce will indicate that what was provided in th is Section was that when a relationship of marriage is di s solved by decree of court and either no appeal is filed or if filed is dismissed then either party to the marria ge which has been dissolved by the process of law by a decr ee 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 decr ee of divorce  it could not be doubted that where the marria ge is dissolved under Sections 11 12 or 13 by grant of a decree of nullity or divorce the relationship is dissolv ed or in any way is brought to an end and it would be signif i cant that if the language of Section 15 is interpreted in the light of Section 28 which provides for appeal and co n fers a right of appeal on either party to proceedings whi ch culminate into a decree bringing an end to the relationsh ip of marriage then we will have to infer that the Legislatu re so far as decrees under Section 13 are concerned wanted t he 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 appare nt that if what is contended by the learned counsel for t he respondent and held by some of the High Courts is accept ed that Sec
15 will not apply to cases when a decree is pass ed under Sec
11 or 12 it will mean that as 145 soon as a decree is passed the party aggrieved may appe al but the other
party by remarriage would make the appe al infructuous and therefore the right of appeal of one of t he parties to the decree under Sec
28 will be subject to t he act of the other party in cases where decree is passed und er Sections 11 or 12 but if it were so the Legislature wou ld have provided a separate provision for appeal when there is a decree under Section 13 and a different provision f or appeal when there is a decree under Sections 11 or 12 as t he right of appeal against a decree under Sec
11 or 12 cou ld only be a limited right subject to the desire of the oth er party
The Legislature in its wisdom has enacted Sec 28 conferring a right of appeal which is unqualified unr e strictive and not depending on the mercy or desire of a party against all decrees in any proceeding under this A ct which will include a decree under Sections 11 12 or 13 a nd therefore the only interpretation which could be put on t he language of Sec
15 should be which will be consistent wi th 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 cou rt by a decree
It is plain that the word divorce  or decree of d i vorce  have not been defined in this Act
The meaning of t he word divorce  indicated in Shorter Oxford English Dictio n ary reads Divorce 1
Legal dissolution of marriage by a court or other competent body or according to forms locally reco g nized
Complete separation disunion of things close ly united ME
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 compete nt authority
In Vathsala s case the Court had occasion to consider t he effect of an application for setting aside an exparte decr ee which was granted under Sec 12 and it was contended th at while the application by the husband for setting aside t he exparte decree was pending the wife contracted remarriag e Will not remarriage have the effect of making the applic a tion to set aside exparte decree infructuous More or less a similar question is in the present case where it has be en held that by marrying the second time the respondent ma de the appeal filed by the 146 appellant infructuous and the learned Judge placing rel i ance on the observations made in Chandra Mohini s case hel d That is the principle of Smt
Chandra Mohini vs Avina sh Prasad  The principle laid down in th at decision has general application
The Supreme Court point ed out that on dissolution of marriage a spouse can lawful ly marry only when there is no right of appeal against t he decree dissolving the marriage or if there is a right of appeal the time for filing of an appeal has expired or t he appeal presented has been dismissed
 The question about an appeal to the Supreme Court has als o been considered in a recent decision of this Court in T e jinder Kaur s case wherein the observations made in Chand ra Mohini s case have been quoted and it is held that In view of this it was incumbent on the respondent to ha ve enquired about the fate of the appeal
At any rate the Hi gh Court having dismissed the appeal on 16th July 1986 t he petitioner could have presented a special leave petiti on within ninety days therefrom under article 133c of the Lim i tation Act 1963 ie till 14th September 1986
Till th at period was over it was not lawful for either party to mar ry again as provided by section 15
It was incumbent on the respon d ent as observed in Lila Gupta s case ILR 1969 1 All 9 2 to have apprised himself as to whether the appeal in t he High Court was still pending and if not whether the peri od for filing a special leave petition to this Court had e x pired
We must accordingly overrule the views expressed in Chandra Mohini s  and Lila Gupta cases I LR 19691 All 92
We wish to add that in the subseque nt decision in Lila Gupta the Court while dealing with t he effect of deletion of the proviso observed The net result is that now since the amendme nt parties whose marriage is dissolved by a decree of divor ce can contract marriage soon thereafter provided of course t he period of appeal has expired
The Court adverted to the word of caution administered by Wanchoo J in Chandra Mohini s case and reiterated 147 Even though it may not have been unlawful for t he husband to have marriage immediately after the High Court s decree for no appeal as of right lies from the decree of t he High Court to this Court still it was for the respondent to make sure whether an application for special leave had be en filed in this Court and he could not by marrying immediat e ly after the High Court s decree deprive the wife of t he chance of presenting a special leave petition to this Cour t
If a person does so he takes a risk and could not ask t he Court to revoke the special leave on that ground It is no doubt true that in these two decisions this Cou rt was considering the impact of an appeal against a decr ee under Section 13 itself and not a decree under Section 11 or 12 but as indicated earlier if the impact of the phraseolo gy fight of appeal  occurring in Sec
15 is to be examined in the light of language of Sec 28 as discussed earlier the re will be no difference in respect of the fight of appe al whether the decree is under Sections 11 12 or 13
The decisions of the High Court on which reliance is placed by courts below and the learned counsel for t he respondent are i Mohanmurari ii Jam boo Prasad Jain a nd Pramod Sharrna
In none of these decisions the impact of t he fight of appeal occurring in Sec 15 in view of the langua ge of Section 28 where the right of appeal is conferred h as 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 be en brought to an end by intervention of court by a decree th is decree will include a decree under Sections 11 12 or 13 a nd therefore the view taken by all the courts below is n ot sustainable
The contention of the learned counsel for t he appellant has to be accepted so far as this question is concerned
Learned counsel for the respondent contended that as Section 28 sub clause 4 of the Act provides for the lim i tation for preferring an appeal in view of Sec
29 clau se 3
Provisions of will not apply and if th ey do not apply as the trial court disposed of the matter by a decree dated 351985 the period of limitation for appe al could only be upto 361985 as the period for obtaini ng copies as contemplated under Section 12 clause 2 of t he will not be applicable and therefore even if it is held that under Sec
15 the respondent had to wa it till the period of limitation for appeal expires 148 as he entered into a marriage on 2761985 it was clear ly after the period of limitation has expired and therefo re this marriage apparently made the appeal filed by the appe l lant infructuous
It is not in dispute that if the peri od for obtaining copy of the judgment and decree is computed as contemplated in Section 12 clause 2 of the Limitation Ac t the appeal filed by the appellant before the first appella te court was within the time and if Section 12 clause 2 is he ld applicable then this marriage which the respondent perform ed on 2761985 could not be said to be a marriage which he w as entitled to perform in view of language of Section 15 a nd therefore it could not be said that this marriage render ed the appeal filed by the appellant infructuous
Learn ed counsel for the respondent mainly placed reliance on t he language of Sec
29 clause 3 of the where as learned counsel appearing for the appellant contended th at Sec
29 clause 3 talks of suit or proceedings and therefo re the phrase proceedings  used in clause 3 of Sec
29 cou ld only refer to suits or other original proceedings and it will not apply to appeals as is very clear from the defin i tion of suit  as defined in Section 2L of the Limitati on Act
It was therefore contended that the provisions of t he will be applicable to appeals under Sec
28 of the Act
Learned counsel for the appellant placed rel i ance on the decisions in Chander Dev Chadha vs Smt
Ra ni Bala AIR 1979 Delhi 22 Smt
Sipra Dey vs Ajit Kumar De y AIR 1988 Calcutta 28 and Kanti bai vs Karnal Singh Thaku r AIR 1978 MP 245
Section 2L of the 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
Sec 29 of the reads 29
Savings 1 Nothing in this Act shall affect Section 25 of the 
2 Where any special or local law prescribes for any sui t appeal or application a period of limitation different fr om the period prescribed by the Schedule the provisions of Section 3 shall apply as if such period were the peri od prescribed by the Schedule and for the purpose of determi n ing any period of limitation prescribed for any suit appe al or application by any special or local law the provisio ns contained in Sections 4 to 24 inclusive shall apply on ly insofar as and to the extent to which they are not 149 expressly excluded by such special or local law
3 Save as otherwise provided in any law for the time bei ng in force with respect to marriage and divorce nothing in this Act shall apply to any suit or other proceeding und er any such law
4 Sections 25 and 26 and the definition of easement  in Section 2 shall not apply to cases arising in the territ o ries to which the Indian Easement Act 1882 may for t he time being extend
 Clause 2 of this Section provides that where the limit a tion provided by the special or local law is different fr om the period prescribed by the Schedule the provisions of Section 3 will apply
In the Hindu Marriage Act the peri od of appeal is prescribed
In the schedule under the Limit a tion Act there is no provision providing for an appe al under the Hindu Marriage Act
Thus the limitation prescrib ed under the Hindu Marriage Act is different and is not pr e scribed 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 n ot expressly excluded by the special or local law and clau se 3 of this Section provides that the provisions of this A ct shall not apply to any suit or other proceedings under a ny marriage law
It is therefore clear that so far as clau se 3 is concerned the impact of it will be that the prov i sions of the will not apply so far as a su it or an original proceeding under the Act is concerned b ut clause 3 will not govern an appeal
The Schedule in the do not provide for an appeal under the Hindu Marriage Act but it is only provid ed in clause 4 of Sec
28 of the Hindu Marriage Act
Thus t he limitation provided in clause 4 of Sec
28 is differe nt from the Schedule of the 
Accordingly to clause 2 of Sec 29 provisions contained in Sections 4 to 24 will be applicable unless they are not expressly exclu d ed
It is clear that the provisions of the Act do not e x clude operation of provisions of Sections 4 to 24 of t he and therefore it could not be said that the se provisions will not be applicable
It is therefore cle ar that to an appeal under Section 28 of the Hindu Marria ge Act provisions contained in Section 12 clause 2 will be applicable therefore the time required for obtaining copi es of the judgment will have to be excluded for computing t he period of limita 150 tion for appeal
A Division Bench of Delhi High Court in Chandra Dev Chadha s case held as under The Hindu Marriage Act is a special law
That this speci al 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 Schedu le to the 
But when we turn to the Fir st Schedule we find there is no provision in the First Schedu le for an appeal against the decree or order passed under t he Hindu Marriage Act
Now it has been held that the test of a prescription of a period of limitation different from t he period prescribed by the First Schedule as laid down in section 292 is satisfied even in a ca se where a difference between the special law and Limitati on Act arose by omissions to provide for a limitation to a particular proceeding under the  see Cana ra Bank Bombay vs Warden Insurance Co Ltd Bombay AIR 19 supra approved by the Supreme Court in Vidyachar an Shukla vs Khubchand  1102
Once the test is satisfied the provisions of Ss 3 4 to 24 would at once apply to t he special law
The result is that the court hearing the appe al from the decree or order passed under the Hindu Marriage A ct would under section 3 of the have power to dismi ss the appeal if made after the period of limitation of 30 da ys prescribed thereof by the special law
Similarly under section 5 for sufficient cause it will have the power to condo ne delay
Likewise under section 122 the time spent in obtaining a certified copy of the decree or order appealed from will be excluded
If it is so section 122 of the is attracted and the appellants in all the three appeals wi ll be entitled to exclude the time taken by them for obtaini ng certified copy of the decree and order
The appeals ar e therefore within time
 Similar is the view taken by the Calcutta High Court in Sm t Sipra Dey s case and also the MP High Court in Kantibai s case
It is therefore clear that the contention advanced by the learned counsel for the respondent on the basis of t he also is of no substance
151 Consequently the appeal is allowed
The judgment pass ed by the High Court as well as by the first appellate court is set aside
We remand the matter back to the first appella te court as that court had disposed of the appeal treating it to have been rendered infructuous
We therefore direct th at the learned lind Additional District Judge Nagpur befo re whom the appeal was filed will hear the appeal on meri ts and dispose it of in accordance with law
A suggestion was made by the counsel for the appella nt about some tests and willingness of the appellant for ge t ting those tests performed which could be used as addition al evidence in respect of the paternity of the child born to the appellant which has been made a ground for declarati on of marriage as nullity
Without expressing any opinion it would be appropriate for the lower appellate court to co n sider the matter if parties approach about additional ev i dence
The appallant shall be entitled to costs of th is appeal
Costs quantified at Rs2500
RSS Appeal allowed


Summary:
Sub section
1 of section 12B of the Indian Income Tax Act 1922 provides that tax shall be payable by an assessee under the head Capital gains in respect of any profits or gains arising from the sale exchange relinquishment or transfer of a capital asset
The respondent assessee who owned 90 shares in the Shorrock Co which stood dissolved under a scheme of amalga mation with another company known as New Shorrock Co which was sanctioned by the High Court was aborted 45 shares of the New Shorrock Co in terms of the provisions of the said scheme
During the assessment proceedings for the assessment year 1961 62 the Income Tax Officer omitted to consider the applicability of section 12B 10 the case of the assessee
Later on the Commissioner issued a notice under section 33B to the assessee stating that the receipt of 45 shares of the New Shorrock Co in exchange of his original holding of 90 shares in the Shorrock Co had resulted in an assessable profit and passed an order directing the Income Tax Officer to revise the assessment and to include an amount of Rs49350 representing the capital gain resulting from the transaction
On appeal by the assessee the Appellate Tribu nal held that the transaction represented neither an ex change nor a relinquishment and therefore section 12B of the Act was not attracted
However at the instance of the Revenue the Tribunal referred the question to the High Court which answered it in favour of the assessee
Dismissing the appeals 180 HELD The sole question is whether the receipt of the 45 shares of the New Shorrock Co upon amalgamation by reason of the share holding of 90 shares of the Shorrock Co can be described as an exchange or a relinquishment within the meaning of section 12B
It seems plain to us that no exchange is involved in the transaction
An exchange involves the trans fer of property by one person to another and reciprocally the transfer of property by that other to the first person
There must be a mutual transfer of ownership of one thing for the ownership of another
In the present case the assessee cannot be said to have transferred any property to any one
When he was allotted the shares of the New Shorrock Co he was entitled to such allotment because of his holding the 90 shares of Shorrock Co The holding of the 90 shares in the Shorrock Co was merely a qualifying condition enti tling the assessee to the allotment of the 45 shares of the New Shorrock Co The dissolution of the Shorrock Co de prived the holding of the 90 shares of that company of all value
183B E On the question whether there was any relinquishment the decision must again be against the Revenue
A relin quishment takes place when the owner withdraws himself from the property and abandons his rights thereto
It presumes that the property continues to exist after the relinquish ment
Upon amalgamation the shares of the Shorrock Co lost all value as that company stood dissolved
183E F