N. RAJENDRAN versus S. VALLI
[2022] 16 S.C.R. 498, Supreme Court of India, 2022
Outcome: Disposed off
Segment: Arguments
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N. RAJENDRAN
v.
S. VALLI
(Civil Appeal No. 3293 of 2012)
FEBRUARY 03, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Hindu Marriage Act, 1955 – ss.13(1)(ia), 15 – Family Courts
Act, 1984 – ss. 19, 20 – Limitation Act, 1963 – s. 29 – Cruelty –
Irretrievable breakdown of marriage – Dissolution of Marriage –
Case of appellant that respondent left appellant and returned to
her parental home – Divorce petition by appellant on ground of
cruelty – Family Court allowed divorce petition – Respondent filed
appeal under section 19 of the Family Courts Act, 1984 before the
High Court – Appellant contended that the time for filing an appeal
had expired and so he had re-remarried on the strength of the decree
of dissolution of marriage – Respondent later filed a petition seeking
restitution of conjugal rights u/s. 9 of the Hindu Marriage Act, which
was still pending – High Court reversed the decree of dissolution of
the marriage between the appellant and the respondent holding
there was no cruelty – On appeal, held: Appellant failed in
persuading Court to hold that the appeal was not filed within the
period stipulated u/s. 19 of the Family Courts Act – The second
marriage of the appellant took place in contravention of mandate
of s.15 of the Hindu Marriage Act – High Court was right in its
finding – There was no cruelty – No possibility of rapproachement
between appellant and respondent – Marriage between appellant
and respondent is
dead – In exercise of power u/Art. 142 of the
Constitution, marriage between appellant and respondent declared
as dissolved.
Disposing of the appeal, the Court
HELD: 1. On perusal of rule 52 of the Family Courts
(Procedure) Rules, 1996. It plainly would suffice to repel the
contention of the appellant that an appeal can be maintained within
thirty days even if it is in the absence of a certified copy. Coming
further to the arguments of the learned counsel for the appellant
that Section 19 overrides the provisions of the Code of Civil
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Procedure and there may not be any need to have a certified
copy of the judgment, this Court finds this argument to be clearly
untenable having regard to Rule 52 made by the Madras High
Court under the said Section 21 of the very Act namely, the Family
Courts Act. The non-obstante clause in Section 19 actually has a
different purport and scope and it was not meant to sweep away
all requirements as existed in law for maintaining an appeal. [Para
23][515-C-D]
2. Equally, without substance is the contention of the
appellant based on Section 19(3) of the Act. It constituted a special
law within the meaning of Section 29(2) of the Limitation Act. It
must be noticed that the Family Courts Act itself was based on
the overwhelming realization that a specialized institution which
must resort increasingly to efforts of reconciliation between the
parties be established. It must be noticed that even with the
promulgation of the Act, unless a Family Court is established,
the Courts which were earlier dealing with the provisions would
continue to have jurisdiction. With the establishment of Family
Court and the jurisdiction it was to exercise under Section 7 of
the Act, this Court is of the view that the Family Courts Act must
be read along with the cognate enactments. In other words, the
Family Courts Act is not a standalone Act. It draws sustenance
from Acts like the Hindu Marriage Act. This is for the reason
that a petition within the meaning, for instance, of the
Hindu
Marriage Act, after a Family Court is established in India, is to
be dealt with by the Family Court, on the grounds as provided
under the Hindu Marriage Act. In fact, a mere perusal of Section
7 of the Family Courts Act would show that it speaks about suits
and proceedings. Therefore, reading Section 7 of the Family
Courts Act with Section 29 of the Limitation Act, also fortifies us
in our finding that the word ‘proceedings’ within the meaning of
Section 29(3) is to be confined to the original proceedings. [Para
24][515-E-H; 516-A]
3. This court also does not find any merit in the contention
based on Section 20. Section 20 gives overriding effect to the
Family Courts Act, notwithstanding anythingwhich is inconsistent
with any other Act. It is true that it is intended to have an
overwhelming sway even in the teeth of other provisions. But in
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order to apply Section 20, and to rule out Section 12 of the
Limitation Act, the appellant must succeed in the first place in
eliminating the application of Section 29(2) of the Limitation Act.
Once Section 29(2) applies, the Family Courts Act would be a
special enactment providing for special period of limitation as
contemplated in Section 19 but bringing in its train, the provisions
of Sections 4 to 24 of the Limitation Act. Section 12 of the
Limitation Act is legitimately available to a prospective appellant.
It is also conducive to the interest of justice. In fact, it is
incomprehensible how on one hand, the law commands through
Rule 52 of the Rules that a certified copy must accompany an
appeal, and yet a decision declaring the marriage dissolved could
hold a litigant to ransom, when she has no right to file an appeal
without a certified copy, and yet a successful party before the
original court is left free to remarry before the period runs out
under the Limitation Act. [Para 25][516-B-E]
4. There is thus nothing inconsistent in Section 12 read
with Section 29(2) of the Limitation Act with Section 19 of the
Family Courts Act. Therefore, there is no merit at all in the
contention of the appellant that the provisions of Section 20 will
override the provisions of Section 12 of the Limitation Act thereby
rendering the appeal filed by the respondent beyond time. [Para
26][516-E-F]
5. The appeal on being filed on
09.09.2004 must be treated
as having been presented within the meaning of Section 15 of the
Act. The upshot of the discussion is that the appellant has not
made out a case to overturn the findings on merits. Equally, as
the appellant failed in persuading us to hold that the appeal was
not filed within the period stipulated in Section 19 of the Family
Courts Act or that the appeal was not presented during the period
of Section 15 within time, the second marriage which is relied
upon by the appellant clearly took place in 33 contravention of
mandate of Section 15 of the Hindu Marriage Act and this Court
has no hesitation in holding that the High Court was entirely right
in its findings. [Para 27][517-B-D]
6. There is a child born in the said marriage. No doubt being
in contravention of Section 15, it becomes a fait accompli but at
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the same time we do not reasonably perceive any possibility of
the appellant and the respondent cohabiting as husband and wife.
Whatever life was there in the marriage has been snuffed out by
the passage of time, the appearance of new parties and vanishing
of any bond between the parties. Not even the slightest possibility
of rapprochement between the appellant and the respondent
exists for reasons though which are entirely due to the actions of
the appellant and for which the respondent cannot be blamed.
The marriage between the appellant and the respondent has
become dead. It can be described as a point of no return. There
is no possibility of the appellant and the respondent stitching
together any kind of a reasonable relationship as the tie between
the parties has broken beyond repair and having regard to the
facts of this case, this court would think that it would be in the
interest of justice and to do complete justice to the parties that
this Court should pass an order dissolving the marriage between
the appellant and the respondent. [Para 32][520-D-G]
Lata Kamat v. Vilas (1989) 2 SCC 613 : [1989] 2 SCR
137; R. Srinivas Kumar v. R. Shametha (2019) 9 SCC
409 : [2019] 12 SCR 873; Munish Kakkar v. Nidhi
Kakkar (2020) 14 SCC 657 : [2019] 15 SCR 169;
Sivasankaran v. Santhimeenal (2021) SCC Online SC
702 - referred to.
Canara Bank, Bombay v. Warden Insurance Co. Ltd.
(1952) Bom 1083; Vidyacharan Shukla v. Khubchand
(1964) AIR 1099 : [1964] SCR 6 129; Sm.
Sipra Dey
v. Ajit Kumar Dey AIR 1988 Cal 28; Kuttimalu v.
Subramonian (1981) KLT 602; Kunnarath Yesoda v.
Manathanath Narayanan AIR 1985 Ker 220; Chander
Dev v. Rani Bala AIR 1979 Delhi 22 – referred to.
Case Law Reference
[1989] 2 SCR 137
referred to
Para 19
[1964] 6 SCR 129
referred to
Para 19
[2019] 15 SCR 169
referred to
Para 30
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3293
of 2012.
From the Judgment and Order dated 12.02.2010 of the High Court
of Judicature at Madras in C.M.A. No. 3352 of 2004.
K. S. Mahadevan, Ms. Swati Bansal, Varun Mudgal, Rangarajan
R., Rajesh Kumar, Advs. for the Appellant.
Gautam Narayan, Ms. Asmita Singh, Advs. for the Respondent.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. By the impugned judgment, the High Court has reversed the
decree of dissolution of the marriage between the appellant and the
respondent which is passed under Section 13 (1) (ia) of the Hindu
Marriage Act, 1955.
2. We have heard Mr. K.S Mahadevan, learned counsel for the
appellant and Mr. Gautam Narayan, learned counsel for the respondent.
3. The appellant and the respondent were married as per the Hindu
rites and customs on 29.08.1999. According to the appellant, there were
certain differences between his sister and the respondent’s brother, who
were married to each other, which led to the appellant’s sister returning
to her parental house. Further, the case of the appellant is that the
respondent left the appellant on 18.01.2000 and returned to her parental
home. She did not return home. She stood accused of cruelty and
accordingly, the divorce petition was filed on 05.03.2001 seeking
dissolution. The Family Court allowed the petition by its decree dated
23.07.2004. An appeal was carried by the respondent before the
Madras
High Court under Section 19 of the Family Courts Act, 1984 and it was
filed on 09.09.2004. According to the appellant, since the period for filing
an appeal by the respondent had expired, he re-married on 31.10.2004
on the strength of the decree of dissolution dated 23.07.2004. He was
served with the notice in the matter in May, 2005. Respondent, in fact,
filed a petition seeking restitution of conjugal rights under Section 9 of
the Hindu Marriage Act on 27.12.2004 and the same is still pending.
4. The learned counsel for the appellant, Mr. K.S Mahadevan,
would submit that the High Court has clearly erred in reversing the
judgment of the Family Court. He would submit that this is a case of
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matrimonial cruelty practised by the respondent. The Trial Court has
after considering the evidence rendered a finding to justify the grant of
dissolution of the marriage. It is pointed out that there was a strained
relationship between the respondent and the appellant’s sister. It must
be noticed here that the appellant’s sister was married to the brother of
the respondent on 24.05.1999, prior to the marriage between the appellant
and the respondent on 29.08.1999. It is pointed out that on the evidence,
finding was rendered by the trial court that strain between the respondent
and the appellant’s sister had a telling effect on the relationship between
the appellant and the respondent. The learned counsel for the appellant
contended that the respondent would threaten to commit suicide. What
is more, the learned counsel for the appellant would further contend that
though the appellant requested the respondent to come back. But she
refused, stating that in view of the fact that she had gone to deliver a
child, she needed more time. She had requested for five months. In fact,
the father of the respondent passed away on 03.02.2001. It is further
contended that the attitude of the respondent is reflected by the admitted
fact that the respondent did not file any petition seeking restitution of
conjugal rights. If she was genuinely interested in coming back and staying
with the appellant, she would have done that. It is pointed out further
that the findings
rendered by the High Court about there not being any
strained relationship between the respondent and her sister-in-law is
unsustainable. He pointed out the contradictions in the impugned judgment
in this regard. He would contrast the finding that there was no such
strain with the finding that there was a strained relationship between the
families. The respondent was never willing to live with the appellant.
The finding of the High Court that the respondent was always ready and
willing to rejoin is criticized as being unsustainable on facts. It is pointed
out in this regard that the intention to return was not reflected in the
pleadings, and it finds expression for the first time in the evidence of the
respondent only.
5. It is further contended that the finding of the High Court about
the effect of the respondent taking with her all jewels and belongings,
which was a fact relied on by the Family Court to find that the respondent
was not interested in living with the appellant, cannot be sustained on the
ground that it is speculative and the finding of the High Court is bereft of
any evidence in support thereof. Two views being possible, it is contended
the High Court should not have reversed the view of the Trial Court. It
is further contended that the appellant and the respondent have been
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living separately since 18.01.2000. 22 Years have passed away. A long
and continuous separation, the marriage is as of today only a legal fiction.
It is a tie beyond repair, the entire substratum having evaporated. The
sanctity of the marriage is lost. It is, therefore, contended that the judgment
of the High Court must be overturned. Next, it is contended that the
appeal filed by the respondent under Section 19 was clearly beyond
time. It is pointed out that when the High Court has rejected the contention
that the period of 90 days is available to appeal the decree, it has erred
in finding that the appeal was filed within time on the wings of the
provisions of Section 12 of the Limitation Act.
Learned counsel would contend that the finding is in the teeth of
Section 29 (3) of the Limitation Act. He further pointed out that Section
19 of the Family Courts Act is a code in itself and it is evident from
Section 20 which declares that Section 20 will have effect notwithstanding
anything inconsistent with any other law. He would further contend, in
this regard, most pertinently that Section 19 (1) contemplates that the
provisions of the Code of Civil Procedure will not stand in the way of the
overwhelming operation of Section 19 of the Family Courts Act. In other
words, he contends that in a case which falls under the Code of Civil
Procedure, it is mandatory that an appeal should be accompanied by a
certified copy but
when Section 19(1) is properly appreciated, this
requirement must be treated as having been taken away. Equally, he
dwells upon Section 19(1) to contend that the provisions of the Family
Courts Act will have effect notwithstanding anything which is contrary
to any other law. Thus, the period of 30 days in Section 19 must be
adhered to by the prospective appellant. Hence, the appellant is not
entitled to exclude any period with the aid of the Limitation Act. He
would contend that the High Court has wrongly relied upon Section 29(2)
of the Limitation Act. This being a law relating to marriage and divorce,
it fell squarely within the four walls of Section 29(3). In this regard, he
would contend that while an appeal before the High Court under Section
19 is not a suit, it would certainly be a proceeding within the meaning of
Section 29(3). He would submit that the judgment of this Court reported
in Lata Kamat v. Vilas1, etc. was a matter which fell to be considered
under Section 28 of the Hindu Marriage Act. Having regard to the
pronounced differences in the provisions of the Family Courts Act, in
particular, Sections 19 and 20, the word ‘proceeding’ in Section 29(3)
1 1989 (2) SCC 613
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would embrace an appeal which is carried under Section 19. He would
next contend that under Section 15 of the Hindu Marriage Act, the appeal
must be presented in time. The word “presented” according to Mr. K.S
Mahadevan, Ld. Counsel, cannot be allowed to be interpreted in a pedantic
manner and it should not be understood as the mere pushing of an appeal
into the files of the Court. In other words, an appeal will be treated as
“presented” within the meaning of Section 15 only when it is not only
filed but further moved and brought up before the Court on the judicial
side. Though the appeal was filed on 09.09.2004, it is pointed out that the
application for stay of decree was signed as early as on 30.08.2004. The
appeal was kept ready and it was not filed immediately deliberately. The
moment, the respondent came to know that the appellant got re-married
on 30.01.2004, she moved an application for stay on 01.11.2004.
Therefore, she deliberately wanted to know whether the appellant would
re-marry. Thereafter, she moved the application for stay on 18.11.2004,
and obtained the stay on the said date. Therefore, it is contended that it
is impossible to determine as to when a party who suffers a decree is
likely to file an appeal. It is the conduct of the respondent which is
harped upon to contend that she may not be granted any relief.
6. Per contra, Shri Gautam Narayan, learned counsel for the
respondent would point out that no case whatsoever was made out at
any point of time for the appellant to seek a dissolution of marriage.
After the marriage, finding that, she was pregnant, and as is natural, she
went to her parental house. The pregnancy was not a smooth affair. It
was actually complicated. Her father passed away. Circumstances
beyond her control constrained her to stay at her parental house and it
has nothing to do with lack of inclination on the part of the respondent to
fulfill her obligations under the marital tie. It is pointed out that the
allegations which found favour with the Family Court are clearly not of
a standard, which would attract the ground of cruelty contemplated by
the law giver. No ground whatsoever existed for the Family Court to
grant a decree of dissolution. It is pointed out that the High Court has
exhaustively discussed the matter with reference to the circumstances
and has correctly come to the conclusion that there is no cruelty at all.
The respondent is entirely blameless. She is a teacher. There is a son in
the marriage. It is pointed out that the appellant has not at all taken any
interest in his own son. He would point out as far as the question relating
to the applicability of Section 29(3) of the Limitation Act is concerned,
Section 19 of the Family Courts Act is a special provision within the
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meaning of Section 29(2) and it is, therefore, Section 29(2) which would
apply. He would point out that word ‘proceeding’ in Section 29(3) must
be confined to proceedings akin to a suit, which means that original
proceedings brought by the parties and not an appeal carried in the matter.
7. He also would contend that there is no merit at all in the
contention about the interpretation sought to be placed on the word
“presented” in Section 15 of the Hindu Marriage Act. He would further
point out that the Court may notice the facts and the plight of the
respondent, who is blameless but for the unholy haste with which her
husband, has rushed into a marriage.
8. As far as the contention of the learned counsel for the appellant
that the High Court erred in the matter of reversing the decree of the
Family Court is concerned, we are of the view that there is absolutely no
merit in the contention. Undoubtedly, to describe the marriage as short-
lived will not extricate the appellant from the rightful share of blame that
falls on his shoulders. The marriage took place on 29.09.1999. Having
become pregnant, the respondent left for her matrimonial home on
18.01.2000. The child was born on 29.08.2000. The father of the
respondent died in February, 2001.
9. The haste with which the appellant has instituted proceedings
is clearly made out by the fact that the appellant moved the petition
before the Family Court on 05.03.2001. In
other words, the petition is
filed within a period of less than two years of the date of marriage.
Cruelty, undoubtedly, can consist of physical as also mental cruelty. It is
a matter to be decided on the facts of each case. But we are of the clear
view that by any yardstick the case sought to be made by the appellant
was without any basis. The evidence in this case consisted of the oral
testimony of the appellant PW-1, and the oral testimony of the respondent
is RW-1. Apart from that, exhibits A-1 & A-2, as such do not throw any
light on the cruelty alleged against the respondent. The High Court has
clearly found that there was no basis at all in the allegation of cruelty,
which even as reiterated before us, consists in the so-called strained
relationship between the respondent and the appellant’s sister. The High
Court rightly noted that having regard to the date of the marriage of the
appellant’s sister, which is prior to the appellant’s marriage, it cannot be
a case where there was a strain between them, as in such a case, the
marriage between the respondent and the appellant would not have taken
place, in the first place. Making up the case of a strained relationship
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between the appellant and the respondent as a ground of cruelty is beyond
our comprehension. To our query to the learned counsel for the appellant
as to whether there are any other circumstances or instances of cruelty,
learned counsel of appellant apart from pointing out to the threat to commit
suicide and refusal to come back, was unable to point out any other
specific instance of cruelty. As regards, the respondent not coming back,
it is quite clear that respondent being pregnant, she had to go to her
parental house. This was but natural. The pregnancy was not a smooth
one as pointed out. If the wife decided to stay for some more time in her
own parent’s house, after the delivery of the child, it is beyond our
comprehension as to how such a case could have been brought before
the Court, and more importantly without even waiting for a reasonable
period of time. The appellant was not even keeping in mind the fact that
had fathered a child, rushes to the Court and files the petition seeking
divorce. We cannot be oblivious to the death of the father of the respondent
on 03.02.2001. Keeping in view these facts, we do not see any ground
being made out by the appellant for interfering with the findings that
there is no cruelty made out by the appellant on the part of the respondent.
The learned counsel for the respondent points out that there is no evidence
for the alleged threat to commit suicide and we do not think that there is
any material produced which
can be believed apart from what can we
describe as normal wear and tear, which is normal to most marriages, if
not all. There is nothing which is made out to justify a decree of dissolution
of marriage on the ground of cruelty by the respondent.
10. The next argument advanced by the appellant that having
regard to the provisions of Section 15 and the appellant having re-married
on 31.10.2004, the matter must be considered and disposed of in the
light of the second marriage which is entirely lawful. The appeal was
filed on 09.09.2004, which is beyond the period of 30 days stipulated in
Section 19 of the Family Courts Act. The High Court has found that the
appeal is within time, noticing that after the decree was passed by the
Family Court on 23.07.2004, an application for a certified copy was
made by the respondent on 31.07.2004 and the period spent in obtaining
the copy is to be excluded. When a certified copy was made available
on 19.08.2004, the respondent, according to the appellant, signed the
application for stay on 30.08.2004. The appeal was prepared on
01.09.2004. The appeal was filed only on 09.09.2004. Therefore, if the
period spent in applying and obtaining a certified copy is excluded, the
appeal is well within time as found by the High Court. If the appellant is
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justified in contending that the Court could not have allowed the respondent
to seek shelter under Section 12 of the Limitation Act, the appeal would
be beyond time and the 2nd marriage contracted by the appellant would
be entirely lawful.
11. In order to the appreciate the contention of the appellant, we
must advert to Section 15 of the Hindu Marriage Act, 1955. It reads as
follows:
“When a marriage has been dissolved by a decree of divorce and
either there is no right of appeal against the decree or, if there is
such a right of appeal, the time for appealing has expired without
an appeal having been presented, or an appeal has been presented
but has been dismissed, it shall be lawful for either party to the
marriage to marry again.”
12. Section 19 of the Family Courts Act is to be noticed next,
which reads as follows:
“(1) Save as provided in sub-section (2) and notwithstanding
anything contained in the Code of Civil Procedure,1908 (5 of 1908)
or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any
other law, an appeal shall lie from every judgment or order, not
being an interlocutory order, of a Family Court to the High Court
both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family
Court with the consent of the parties2 [or from an order passed
under Chapter IX of the Code of Criminal Procedure, 1973 (2 of
1974):
Provided that nothing in this sub-section shall apply to
any appeal
pending before a High Court or any order passed under Chapter
IX of the Code of Criminal Procedure, 1973 (2 of 1974) before
the commencement of the Family Courts (Amendment) Act, 1991
(59 of 1991).]
(3) Every appeal under this section shall be preferred within a
period of thirty days from the date of the judgment or order of a
Family Court.
[(4) The High Court may, of its own motion or otherwise, call for
and examine the record of any proceeding in which the Family
Court situate within its jurisdiction passed an order under Chapter
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IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the
purpose of satisfying itself as to the correctness, legality or propriety
of the order, not being an interlocutory order, and as to the regularity
of such proceeding.]
[(5)] Except as aforesaid, no appeal or revision shall lie to any
court from any judgment, order or decree of a Family Court.”
13. Equally we must notice, Section 20 of the Family Courts Act,
which reads as under:
“The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any other law for the
time being in force or in any instrument having effect by virtue of
any law other than this Act.”
14. The other set of provisions which must be noticed is Section
29 of the Limitation Act which reads as under:
“29. Savings.—(1) Nothing in this Act shall affect section 25 of
the Indian Contract Act, 1872 (9 of 1872).
(2) Where any special or local law prescribes for any suit, appeal
or application a period of limitation different from the period
prescribed by the Schedule, the provisions of section 3 shall apply
as if such period were the period prescribed by the Schedule and
for the purpose of determining any period of limitation prescribed
for any suit, appeal or application by any special or local law, the
provisions contained in sections 4 to 24 (inclusive) shall apply only
in so far as, and to the extent to which, they are not expressly
excluded by such special or local law.
(3) Save as
otherwise provided in any law for the time being in
force with respect to marriage and divorce, nothing in this Act
shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of “easement” in section
2 shall not apply to cases arising in the territories to which the
Indian Easements Act, 1882 (5 of 1882), may for the time being
extend.”
15. On the one hand, it is the case of learned counsel for the
appellant that having regard to the provisions of Family Courts Act, i.e.,
Section 19, Section 29(3) would clearly apply and, therefore, the Limitation
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Act would not apply. Since the Limitation Act would not apply, the period
spent in applying for a certified copy and obtaining the same cannot be
excluded by the respondent in calculating the period of limitation.
16. The learned counsel for the respondent on the other hand,
would contend that it is Section 29(2) which would apply. Another allied
argument which we must notice is that the appeal though filed on
09.09.2004, cannot be treated as having been presented on 09.09.2004.
17. Section 29(3) in its earlier avatar under the Limitation Act,
1908 reads as follows:
“(3) Nothing in this Act shall apply to suits under the Indian Divorce
Act (4 of 1869).”
18. This meant that there is no period of limitation, and that the
Limitation Act did not apply to a suit for divorce under the Indian Divorce
Act, 1869. The Third Report of the Law Commission on the Limitation
Act, 1908 had this to say about the need for change.
“Para 60. Sub-section (3) makes this Act inapplicable to suits
under the Divorce Act, 1869. There are other Acts like the Parsi
Marriage and Divorce Act and the Special Marriage Act, dealing
with marriage and divorce. The reasons for excluding proceedings
under the Divorce Act, 1869 are equally applicable to proceedings
under these other Acts. We recommend that the sub-section may
be amplified to include all Acts relating to matrimonial causes.
The Acts to be included may be specified when drafting the
amendment to the section
19. This question as to whether the Limitation Act would apply to
an appeal under the matrimonial laws is not res integra. No doubt, under
the auspices of Section 28 of the Hindu Marriage Act, in the decision of
this Court reported in Lata Kamat (supra), we need only notice the
following paragraph:
“12.The Schedule in the Limitation Act does not provide for an
appeal, under the Hindu Marriage Act but it is only provided in
sub-section (4) of Section 28 of the Hindu Marriage Act. Thus
the limitation provided in sub-section (4) of Section 28 is different
from the Schedule of the Limitation Act. Accordingly to sub-section
(2) of Section 29, provisions contained in Sections 4 to 24 will be
applicable unless they are not expressly excluded. It is clear that
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the provisions of the Act do not exclude operation of provisions of
Sections 4 to 24 of the Limitation Act and therefore it could not be
said that these provisions will not be applicable. It is therefore
clear that to an appeal under Section 28 of the Hindu Marriage
Act, provisions contained in Section 12 sub-section (2) will be
applicable, therefore the time required for obtaining copies of the
judgment will have to be excluded for computing the period of
limitation for appeal. A Division Bench of Delhi High Court in
Chandra Dev Chadha case held as under : (AIR pp. 24-25)
The Hindu Marriage Act is a special law. That this “special law”
prescribes” for an appeal a period of limitation” is also evident.
The period of limitation is 30 days. It is a period different from
that prescribed in the First Schedule to the Limitation Act, 1963.
But when we turn to the First Schedule, we find there is no provision
in the First Schedule for an appeal against the decree or order
passed under the Hindu Marriage Act. Now it has been held that
the test of a “prescription of a period of limitation different from
the period prescribed by the First Schedule” as laid down in Section
29(2), Limitation Act, 1963 is satisfied even in a case where a
difference between the special law and Limitation Act arose by
omissions to provide for a limitation to a particular proceeding
under the Limitation Act, see, Canara Bank, Bombay v. Warden
Insurance Co. Ltd. Bombay, AIR 19 Bom
approved by the Supreme
Court in Vidyacharan Shukla v. Khubchand.
Once the test is satisfied the provisions of Ss, 3, 4 to 24, Limitation
Act, 1963 would at once apply to the special law. The result is
that the court hearing the appeal from the decree or order passed
under the Hindu Marriage Act would under Section 3 of the
Limitation Act have power to dismiss the appeal if made after the
period of limitation of 30 days prescribed therefor by the special
law. Similarly, under Section 5 for sufficient cause it will have the
power to condone delay. Likewise, under Section 12(2) the time
spent in obtaining a certified copy of the decree or order appealed
from will be excluded. If it is so, Section 12(2) of the Limitation
Act is attracted, and the appellants in all the three appeals will be
entitled to exclude the time taken by them for obtaining certified
copy of the decree and order. The appeals are, therefore, within
time.
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Similar is the view taken by the Calcutta High Court in Smt. Sipra
Dey case and also the M.P. High Court in Kantibai case. It is
therefore clear that the contention advanced by the learned counsel
for the respondent on the basis of the Limitation Act also is of no
substance.”
20. We may also notice that this subject has engaged the High
Court on a more elaborate basis. Apart from the decision of the Delhi
High Court. This Court also noticed the judgment of the Division Bench
of Calcutta High Court which has exhaustively considered the issue and
the decision is reported in Sm. Sipra Dey v. Ajit Kumar Dey2. In the
said case, the Court has given the rationale for the change that was
brought about in the provisions of Section 29(3) in the Limitation Act,
1963.
The Legislature wished to extend the protection from the
Limitation Act, as it were, in regard to the word ‘proceedings’ in
matrimonial matters to persons other than those who were covered by
the provisions of section 29(3) in the Limitation Act, 1908. Protection
under Section 29(3) of the 1908 Act was available to those who are
governed by the Indian Divorce Act. The rationale appears to be that by
the very nature, matrimonial matters like Restitution of Conjugal Rights,
Divorce, Guardianship, are matters for which it may not be appropriate
to fix a period of limitation. It would not be in the interest of justice qua
the parties and, therefore, not in the interest
of society. It is this principle
which was extended to cases, as for instance, to proceedings under the
Special Marriage Act, where parties were governed by the Special
Marriage Act, and the Parsi Marriage Act and any other law which
related to matrimonial matters. But when it comes to providing for an
appeal from the original proceedings, it is an entirely different proposition.
It is in the interest of the parties and also the society at large that a
period of limitation is fixed within which the verdict of the Court at the
bottom of the judicial hierarchy is called in question. There must be
certainty and certainty in point of time and it is viewed in this regard, that
we must understand the meaning of the word “proceeding” in Section
29(3).
21. We have no difficulty in contemplating that shorn of the context
provided in Section 29(3), and placed in a different setting, the word
2 AIR 1988 Calcutta 28
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“proceeding” may embrace an appeal. However, in the context of Section
29(3) and having regard to the history of the legislation, it is quite clear
that the intent of the legislature was to take in proceedings before the
original court by way of a petition as are contemplated in various provisions
of the Hindu Marriage Act as for instance. Further we would notice that
as was in fact correctly noticed by the Calcutta High Court in the judgment
(supra), that in Sections 3,4,5,12,13,29, 30 & 31 of the Limitation Act,
the expression ‘appeal’ is expressly used. What is more apposite is in
Section 29 itself, which is at the center of the controversy before us,
Section 29(2) on the one hand, expressly uses the word ‘appeal’, whereas
when it comes to Section 29(3), the legislature has carefully chosen the
word ‘proceedings’. Going by the company, the word “proceedings”
keeps, namely a suit, it in no uncertain terms indicates that what the
legislature had in mind was original proceedings and not appellate
proceedings. In fact, a learned Single Judge of the Kerala High Court
had dealt with this issue in the judgment reported in Kuttimalu v.
Subramonian3 and his views on similar lines, stands approved by the
full Bench of Kerala High Court in Kunnarath Yesoda v. Manathanath
Narayanan4. It is relevant to notice the following paragraphs from the
judgment of the full Bench of the Kerala High Court:
“16. The second contention relates to the meaning of the
expression
“other proceeding” in Section 29(3) of the Limitation
Act. As has been rightly held in Kuttimalu v. Subramonian 1981
Ker LT 602 : (AIR 1981 NOC 221) following Chander Dev v.
Rani Bala, AIR 1979 Delhi 22, the statutory bar under Section
29(3) is limited to suits and other proceedings both of which are
original in nature and not to appeals which belong to a distinct and
separate category. We are in entire agreement with the reasoning
and conclusion of Balagangadharan Nair, J. in 1981 Ker LT 602 :
(AIR 1981 NOC 221).
17. The contention therefore that the appeal under the Hindu
Marriage Act against a decree for divorce should be filed within
30 days of the date of the decree, whether a certified copy has
been obtained or not and even if the appellate Court closes after
the decree has been passed or order has been made and remain
so closed for over 30 days therefrom cannot be accepted. Section
3 1981 KLT 602
4 AIR 1985 Ker 220
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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.”
22. Taking up the contents of paragraph 18 above, we find that it
is again a circumstance which sufficiently deals with the argument of
Shri K.S. Mahadevan, learned counsel for the appellant, that a certified
copy may not be necessary. As noticed by the High Court, a free copy
may be supplied as per the requirement under the Family Courts Act but
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that is a far cry from holding that an appeal can be carried without a
certified copy. In this regard, we are again fortified by a Rule which has
been made under Section 21 of the Family Court Act. The Madras High
Court has framed Rule 52 of the Family Courts (Procedure) Rules, 1996
which reads as follows:
“Copy of judgment or order to be filed with appeal- Every appeal
under section19(1) of the Act shall be accompanied by a copy
certified to be true copy by the court which passed the Judgment.”
23. This plainly would suffice to repel the contention of the appellant
that an appeal can be maintained within thirty days even if it is in the
absence of a certified copy. Coming further to the arguments of the
learned counsel for the appellant that Section 19 overrides the provisions
of the Code of Civil Procedure and there may not be any need to have a
certified copy of the judgment, we find this argument to be clearly
untenable having regard to Rule 52 made by the Madras High Court
under the said Section 21 of the very Act namely, the Family Courts Act.
The non-obstante clause in Section 19 actually has a different purport
and scope and it was not meant to sweep away all requirements as
existed in law for maintaining an appeal.
24. Equally, without substance is the contention of the appellant
based on Section 19(3) of the Act. It constituted a special law within the
meaning of Section 29(2) of the Limitation Act. It must be noticed that
the Family Courts Act
itself was based on the overwhelming realization
that a specialized institution which must resort increasingly to efforts of
reconciliation between the parties be established. It must be noticed that
even with the promulgation of the Act, unless a Family Court is established,
the Courts which were earlier dealing with the provisions would continue
to have jurisdiction. With the establishment of Family Court and the
jurisdiction it was to exercise under Section 7 of the Act, this Court is of
the view that the Family Courts Act must be read along with the cognate
enactments. In other words, the Family Courts Act is not a standalone
Act. It draws sustenance from Acts like the Hindu Marriage Act. This
is for the reason that a petition within the meaning, for instance, of the
Hindu Marriage Act, after a Family Court is established in India, is to be
dealt with by the Family Court, on the grounds as provided under the
Hindu Marriage Act. In fact, a mere perusal of Section 7 of the Family
Courts Act would show that it speaks about suits and proceedings.
Therefore, reading Section 7 of the Family Courts Act with Section 29
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of the Limitation Act, also fortifies us in our finding that the word
‘proceedings’ within the meaning of Section 29(3) is to be confined to
the original proceedings.
25. We also do not find any merit in the contention based on Section
20. Section 20 gives overriding effect to the Family Courts Act,
notwithstanding anything which is inconsistent with any other Act. It is
true that it is intended to have an overwhelming sway even in the teeth
of other provisions. But in order to apply Section 20, and to rule out
Section 12 of the Limitation Act, the appellant must succeed in the first
place in eliminating the application of Section 29(2) of the Limitation
Act. Once Section 29(2) applies, the Family Courts Act would be a
special enactment providing for special period of limitation as
contemplated in Section 19 but bringing in its train, the provisions of
Sections 4 to 24 of the Limitation Act. Section 12 of the Limitation Act is
legitimately available to a prospective appellant. It is also conducive to
the interest of justice. In fact, it is incomprehensible how on one hand,
the law commands through Rule 52 of the Rules that a certified copy
must accompany an appeal, and yet a decision declaring the marriage
dissolved could hold a litigant to ransom, when she has no right to file an
appeal without a certified copy, and yet a successful party before the
original court is left free to remarry before the period runs out
under the
Limitation Act.
26. There is thus nothing inconsistent in Section 12 read with
Section 29(2) of the Limitation Act with Section 19 of the Family Courts
Act.
Therefore, we find that there is no merit at all in the contention of
the appellant that the provisions of Section 20 will override the provisions
of Section 12 of the Limitation Act thereby rendering the appeal filed by
the respondent beyond time.
27. The further argument addressed by the learned counsel for
the appellant, Shri K.S.Mahadevan, that the respondent filed an appeal
on 09.09.2004 and therefore it was not an appeal which was presented
within the meaning of Section 15 of the Hindu Marriage Act, is without
any merit at all. In fact, Section 3 of the Limitation Act uses the word
“prefers” in the context of an appeal. Section 15 no doubt uses the word
“presented”. What Section 15 intends is to place a time limit on the right
of the unsuccessful party to challenge a proceeding by which the marriage
has been declared dissolved. In Lata Kamat (supra), we notice that this
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Court has clarified that though Section 15 uses the word “dissolved”, it
has been interpreted to also apply to cases where the marriage is
pronounced null and void keeping in view the interests of justice. Thus,
the intention of the Legislature was to give effect to the decree for
dissolution, if the unsuccessful party does not move the appellate court
within time. The argument of the learned counsel for the appellant that
not only must the appellant file the appeal, or prefer the appeal or present
the appeal, but he must also ensure that the appeal comes on the judicial
side of the High Court is clearly without any basis. Therefore, we find
that the appeal on being filed on 09.09.2004 must be treated as having
been presented within the meaning of Section 15 of the Act. The upshot
of the discussion is that the appellant has not made out a case to overturn
the findings on merits. Equally, as the appellant failed in persuading us to
hold that the appeal was not filed within the period stipulated in Section
19 of the Family Courts Act or that the appeal was not presented during
the period of Section 15 within time, the second marriage which is relied
upon by the appellant clearly took place in contravention of mandate of
Section 15 of the Hindu Marriage Act and we have no hesitation in
holding that the High Court was entirely right in its findings.
28. The question lingers, unfortunately, however, as to whether
this should be the end of the enquiry by this
Court in the facts of this
case. The parties have beyond dispute been living separately since
18.01.2000, in other words, for more than 22 years. Should we rest
content with affirming the impugned judgment which we find beyond
reproach? Should we hearken to the plea of the learned counsel for the
appellant that declining to interfere with the judgment should not lead to
a situation where the parties will never be able to cohabitate as husband
and wife and what is more, third parties have made their appearance on
the scene in the form a second wife and son born to her on 25.02.2004
and yet the marriage remains intact. There is a son born to the appellant
from the second marriage which is contracted undoubtedly in violation
of Section 15.
It is pointed out by learned counsel for the respondent that the son
was born in the second marriage to the appellant even prior to the
pronouncement of dissolution by the Family Court.
29. Article 142 of the Constitution undoubtedly clothes this Court
with a reservoir of power to pass orders as would reach complete justice
to the parties. What comes to mind is the concept of irretrievable
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breakdown of marriage. Undoubtedly, though there have been reports
of the Law Commission in this regard recommending changes in the
law, as of today the statute does not provide for irretrievable breakdown
of marriage as a ground. However, this Court has on a number of occasions
exercised its power and granted dissolution of marriage on the ground of
irretrievable breakdown of marriage based on Article 142. In this regard,
learned counsel for respondent pointed out that this is not a case for
exercising power under Article 142. He addressed this submission,
reminding us of the conduct of the appellant throughout. He would submit
that the respondent is completely without blame. She was always ready
and willing. The findings as found by the High Court being confirmed, no
occasion arises for this Court to exercise power under Article 142. We
record this submission for as a prefatory remark to indicate that this is
not a case where both parties are agreeable for a dissolution by way of
irretrievable breakdown of marriage. But that then leads us to the question
as to whether the consent of the parties is necessary to order dissolution
of marriage on the ground of irretrievable breakdown. This again, is not
res integra. We may notice that this Court has in a catena of decisions
discussed this very aspect. The judgment reported in R. Srinivas Kumar
v. R. Shametha5 reads as under:
“7. Now so far as submission on behalf of
the respondent wife
that unless there is a consent by both the parties, even in exercise
of powers under Article 142 of the Constitution of India the
marriage cannot be dissolved on the ground of irretrievable
breakdown of marriage is concerned, the aforesaid has no
substance. If both the parties to the marriage agree for separation
permanently and/or consent for divorce, in that case, certainly
both the parties can move the competent court for a decree of
divorce by mutual consent. Only in a case where one of the parties
do not agree and give consent, only then the powers under Article
142 of the Constitution of India are required to be invoked to do
substantial justice between the parties, considering the facts and
circumstances of the case. However, at the same time, the interest
of the wife is also required to be protected financially so that she
may not have to suffer financially in future and she may not have
to depend upon others.”
5 (2019) 9 SCC 409
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30. We may also notice the judgment of this Court reported in
Munish Kakkar v. Nidhi Kakkar6 which reads as under:
“18. No doubt there is no consent of the respondent. But there is
also, in real terms, no willingness of the parties, including of the
respondent to live together. There are only bitter memories and
angst against each other. This angst has got extended in the case
of the respondent to somehow not permit the appellant to get a
decree of divorce and “live his life”, forgetting that both parties
would be able to live their lives in a better manner, separately, as
both parties suffer from an obsession with legal proceedings, as
reflected from the submissions before us.”
31. We may also notice the judgment of this Court reported in
Sivasankaran v. Santhimeenal7 which reads as under:
“19. We are, thus, faced with a marriage which never took of
from the first day. The marriage was never consummated and
the parties have been living separately from the date of marriage
for almost 20 years. The appellant remarried after 6 years of the
marriage, 5 years of which were spent in Trial Court proceedings.
The marriage took place soon after the decree of divorce was
granted. All mediation efforts have failed.
20. In view of the legal position which we have referred to
aforesaid, these continuing acts of the respondent would amount
to cruelty even if the same had not arisen as a cause prior to the
institution of the petition, as was found by the Trial Court.
This
conduct shows disintegration of marital unity and thus disintegration
of the marriage. In fact, there was no initial integration itself which
would allow disintegration afterwards. The fact that there have
been continued allegations and litigative proceedings and that can
amount to cruelty is an aspect taken note of by this court. The
marriage having not taken of from its inception and 5 years having
been spent in the Trial Court, it is difficult to accept that the marriage
soon after the decree of divorce, within 6 days, albeit 6 years
after the initial inception of marriage, amounts to conduct which
can be held against the appellant.
6 (2020) 14 SCC 657
7 2021 SCC Online SC 702
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21. In the conspectus of all the aforesaid facts, this is one case
where both the ground of irretrievable breakdown of marriage
and the ground of cruelty on account of subsequent facts would
favour the grant of decree of divorce in favour of the appellant.
22. We are, thus, of the view that a decree of divorce dissolving
the marriage between the parties be passed not only in exercise
of powers under Article 142 of the Constitution of India on account
of irretrievable breakdown of marriage, but also on account of
cruelty under Section 13(1)(i-a) of the Act in light of the subsequent
conduct of the respondent during the pendency of judicial
proceedings at various stages.”
32. Having found that consent of the parties is not necessary to
declare a marriage dissolved, we cannot be unmindful of the facts as
they exist in reality. There has been a marriage which took place on
31.10.2004. There is a child born in the said marriage. No doubt being in
contravention of Section 15, it becomes a fait accompli but at the same
time we do not reasonably perceive any possibility of the appellant and
the respondent cohabiting as husband and wife. Whatever life was there
in the marriage has been snuffed out by the passage of time, the
appearance of new parties and vanishing of any bond between the parties.
Not even the slightest possibility of rapprochement between the appellant
and the respondent exists for reasons though which are
entirely due to
the actions of the appellant and for which the respondent cannot be
blamed. The marriage between the appellant and the respondent has
become dead. It can be described as a point of no return. There is no
possibility of the appellant and the respondent stitching together any kind
of a reasonable relationship as the tie between the parties has broken
beyond repair and having regard to the facts of this case, we would
think that it would be in the interest of justice and to do complete justice
to the parties that we should pass an order dissolving the marriage
between the appellant and the respondent.
33. We make it clear that this decision of ours is not based on our
approval of the conduct of the appellant nor is it based on sitting in
judgment over the conduct of the respondent. In other words, we find
that respondent is blameless in the matter but the facts as they have
unfolded and the developments which have taken place, render it
unavoidable for us to consider dissolution of marriage as the best course
open in the interest of justice.
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34. Accordingly, while we affirm the judgment of the High Court
and refuse to grant a decree of dissolution on the ground of cruelty by
the respondent, we in exercise of our power under Article 142 of the
Constitution declare the marriage between the appellant and the
respondent as dissolved. This will be on condition that the appellant will
pay a sum of Rs.20,000,00/- (Rupees twenty lakhs) to the respondent by
way of a demand draft within a period of eight weeks from today. We
further make it clear that this will be without prejudice to all the rights
available to the son who was born in the marriage between the appellant
and the respondent under law in regard to property rights. Till the amount
is paid as aforesaid, the appellant will continue to be liable to pay Rs.7000/
- per month to the respondent.
35. The appeal is disposed of as above.
Ankit Gyan and Amarendra Kumar
Appeal disposed of.
(Assisted by : Iram Jan, LCRA)
N. RAJENDRAN v. S. VALLI
[K. M. JOSEPH, J.]