Holding

Section 15 applies to any decree that dissolves the marriage, including a decree of nullity under Section 12, and the right of appeal under Section 28 is not rendered infructuous by the respondent's remarriage; the Limitation Act’s provisions apply to such appeals with the copy‑obtaining time excluded.

Summary

The trial court declared the marriage between Smt. Lata and her husband Vilas null under Section 12(1)(d) of the Hindu Marriage Act because the wife was pregnant by another man. While the wife appealed, the husband remarried, and the lower courts held the appeal infructuous, dismissing it. The Supreme Court examined whether Section 15, which governs remarriage after a decree of divorce, also applies to a decree of nullity under Section 12, and whether a remarriage can render an appeal under Section 28 ineffective. It held that Section 15 covers any decree that ends the marriage—whether under Sections 11, 12 or 13—so the husband's remarriage does not nullify the appellant's right to appeal. The Court also ruled that the Limitation Act’s provisions (Sections 4‑24) apply to appeals under Section 28, with the time spent obtaining certified copies excluded under Section 12(2) of the Limitation Act. Consequently, the appeal was deemed maintainable.

Issues considered

The scope of Section 15 of the Hindu Marriage Act: does it apply to decrees of nullity under Section 12?
Whether a remarriage by the respondent after a decree of nullity renders an appeal under Section 28 infructuous.
Applicability of the Indian Limitation Act, 1963 (especially Sections 12(2) and 29(3)) to appeals under Section 28 of the Hindu Marriage Act.

Legislation cited

Hindu Marriage Act, 1955s. 11, s. 12, s. 13, s. 15, s. 25, s. 26, s. 28
Limitation Act, 1963s. 12(2), s. 29(1), s. 29(2), s. 29(3), s. 29(4), s. 2(l), s. 4, s. 5

Subjects

Hindu Marriage Actdecree of nullitydecree of divorceappealSection 15Section 28Limitation Actremarriageinfructuous appealcivil appeal

Judgment

+ SMT. LATA KAMAT
A
v.
VILAS

MARCH 29, 1989

[G.L. OZA, ANDS. RA1NAVEL PANDIAN, JJ.] B

Hindu Marriage Act 1956: Sections I I, 12, 13 and 28-Decree
of nullity and decree of divorce--Distinction between-Marriage
declared nullity-Wife filing appeal-Husband marrying after trial
Court decree but before the filing of the appeal-Appeal whether
rendered infructuous
c
+· Indian Limitation Act 1963: Sections 4, 24 and 29-Applicability
of provisions of Act to an appeal under section 28 Hindu Marriage Act
1956-...-Time required for obtaining copies of judgment to be excluded.

A decree in favour of the respondent-husband was granted by the D
Trial Court declaring his marriage with the appellant to be a nullity
under section 12(l)(d) of the Hindu Marriage Act, 1956 on the ground
that the wife at the time of marriage was pregnant by some one other
than the respondent. In the appeal filed by the appellant, the respon·
dent raised a preliminary objection contending that the appeal was not
tenable and had been rendered infructuous because he had re-married E
before the filing of the appeal. The Appellate Court allowed the pre-
liminary objection and dismissed the appeal, and the High Court dis-
missed the second appeal.

Before this Court it was contended on behalf of the appellant that
(i) the word 'divorce' has been used in section 15 in a broader sense F
and, in view of the language used in that section, it is not possible to
distinguish between a decree of nullity under section 11 or 12 and
decree of divorce under section 13; (ii) the interpretation put by the
lower courts, 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 G
correct as the scope and language of section 15 coupled with the
language of section 28, had not been considered by any one of these
courts; and (iii) even if it is held that section 15 applies to a decree
under section 12, the respondent had re-married after the period of
limitation had expired, as the provisions of the Limitation Act will not
apply in view of the section 29(3) of that Act, and therefore the period H
137
i-,

138 SUPREME COURT REPORTS [19891 2 s.c.~.

A
for obtaining copies of the judgnient excluded under section 12 clau'se +
(;?),will not be available to the appellant. · . ·
..
Allowing the appeal, it was,

HELD: (I) It is no doubt true that section 12 and section 13 havl}
B different phraseology. In section 12 it is said that the "marriage may he
annulled by a decree of nullity" whereas in section 13, the phraseology
used is "dissolved by a decree of divorce". Though in substance the
meaning of the two may he different under the circumstances and on the
facts of each case, but the legal meaning or the effect, is .that hy
intervention of the court the relationship between two spouses has been.
severed either in accordance with the provisions of section 12 or in
c accordance with the provisions of section 13. Probably it is because of ...l
this reason that the phrase 'decree of nullity' and 'decree of divorce' J
have not been defined. [l·BA-B] ·

(2) Under the provisions· of section 28 all decrees made by the
D Court in any proceeding under this Act are appealable. In order to
provide an appeal against all decrees section 28 bas used a very wide
terminology which includes decrees under sections 11, 12 and 13, and so
far as this is concerned it could hardly he contested as the language of
section 28 itselfis so clear. [143G-H]

E , (3) If it is accepted tha_t Section 15 will not apply to cases when a
decree is passed nnder section 11 or 12, it will mean that as soon as a
decree is passed the party aggrieved may appeal hut 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 he
subject to the act of the other party in cases where decree is passed
F under section U 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 section 11 or 12 as the right of appeal against a decree under
section 11 or 12 could only he a limited right subject to the desire of the
other party. [14411; 145A-B]
G
(4) The Legislature in its wisdom· had enacted section 28 con-
ferring 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 the Act. Hence, the only interpretation which could
be put on the language of section 15 should he that which will he consis-
H tent with section 28. Therefore, the phrase 'marriage has been dissolved
SMT. LATA v. VILAS IOZA, J.J 139

by a decree of divorce' in section 15 will only mean where the relation-
A
ship of marriage has been brought to an end by the process of court by a
decree, which will include a decree under section 11, 12 or 13. The view
taken by the courts below is accordingly not sustainable. [l45C-D; 147FI

Chandra Mohini Srivastava v. Avinash Prasad Srivastava &
Anr., [1967] l SCR 864; Tejinder Kaurv. GurmitSingh, AIR [19881 SC B
839; Vathsala v. N. Manoharan, AIR (1969) Madras 405, referred to.

Mohanmurari v. Smt. Kusumkumari, AIR (1965) M.P. 194;
Jamboo Prasad Jain v. Smt. Ma/ti Prabha, AIR 1979 Allahabad 260;
Pramod Sharma v. Smt. Radha, AIR (1976) Punjab 355, overruled.

(5) So far as clause (3) of Section 29 of the Limitation Act is
c
concerned, the impact of it will he that the provisions of the Limitation
Act will not apply so far as a suit or an original proceeding under the
Hindu Marriage Act is concerned, but clause (3) will not govern an
appeal. [149E]
D
(6) To al) appeal under section 28 of the Hindu Marriage Act,
provisions contained in section 12 clause (2) of the Limitation Act will
be applicable, and therefore, the time required for obtaining copies of
v the judgment will have to be excluded for computing the period of
limitation for appeal. [ l49G-H]
E
Chander Dev Chadha v. Smt. Rani Bala, AIR (1979) Delhi 22; /
Smt. Sipra Dey v. Ajit Kumar Dey, AIR (1988) Cal 28 and Kantibai v.
Kamal Singh Thakur, AIR (1978) M.P. 245, referred to .

.o1.. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 708
1~~- F
From the Judgment and Order dated 20.2.1987 of the Bombay
High Court in S.A. No. 282 of 1985.

Mrs. Shyamla Pappu, K.K. Rai and Mrs. Indira Sawhney for the
Appellant. G

G.L. Sanghi and A.K. Sanghi for the Respondent.

The Judgment of the Court was delivered by

OZA, J. This appeal after leave has been filed by the appellant H
140 SUPREME COURT REPORTS [1989] 2 S.C.R.

A wife arising out of a decree under Section 12(1)(d) of the Hindu Mar- -+
riage Act (hereinafter referred to as the 'Act'), a decree declaring the
marriage a nullity.

The respondent husband instituted a petition on 7th March, 1984
for a declaration that the marriage of the respondent with the appel-
B lant 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 ulti-
mately the Hird 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.
c
The appellant wife filed a regular civil appeal No. 436 of 1985 on i
19.7.1985 before the !Ind 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
D filed by the appellant, the respondent raised a preliminary objection
contending that after passing of the judgment an,d 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 applica-
tion that this marriage was solemnised on 27 .6.1985 when there was no y
impediment against the respondent husband which could come in his
E 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 !Ind Addi-
tional District Judge, Nagpur vide his order dated 17.8.1985 allowed f.
F the objection of the respondent and dismissed the appeal as infructu- .._
ous with a direction to the parties to bear their own respective costs.

Against this the appellant preferred a second appeal before the
High Court. The High Court by its judgment dated 20.2.1987 dismis-
sed the appeal holding that as the appeal was filed by the appellant
G after the re-marriage of the respondent it has become infructuous. The ~
learned Judge also dismissed the application for maintenance pen-
dent elite and aggrieved by this judgment of the High Court after obtain-
ing leave this appeal is filed in this Court.

It was contended by learned counsel for the appellant that the
H language of Sec. 15 clearly goes to show that it refers to a marriage
SMT. LATA v. VILAS !OZA, J.J 141

+ which has been dissolved and it also talks of right of appeal against the
A
decree. In view of this language used in Sec. 15 it is not possible to
distinguish between a decree of nullity under Section 11 or 1~ 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 B
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 there- c
.(_ fore contended that the interpretation put by the lower court on the
basis of judgments of some of the High Courts that Sec. 15 will not
apply to a decree under Sec. 12 but would only apply when there is a
decree under Sec. 13 does not appear to be the correct view and on this
basis it was contended by learned counsel for the appellant that the D
courts below were wrong in coming to the conclusion that the appeal
had become infructuous because the respondent has married a second
time.

~ Learned counsel also referred to meaning of the word 'divorce'
in Webster's Third New International Dictionary and Shorter Oxford E
English Dictionary. Learned counsel in support of her .contentions
referred to the two decisions of this Court in Chandra Mohini Sri-
vastava v. Avinash Prasad Srivastava & another, [1967] 1SCR864 and
Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839 Although on the
basis of these decisions what was contended was that the provisions of
_.z the Act have to be interpreted broadly. Learned counsel also placed F
~ reliance on the decision in Vathsala v. N. Manoharan, AIR 1969
Madras 405. Learned counsel however, conceded that there are deci-
sions in Mohanmurari v. Smt. Kusumkumari, AIR 1965 M.P. 194;
Jamboo Prasad Jain v. Smt. Ma/ti Prabha and Anr., AIR 1979 Al-
lahabad 260 and Pramod Sharma v. Smt. Radha, AIR 1976 Punjab 355
where the question of Section 15 in relation to a decree under Sec. 12 G
~ has been specifically considered and decided against the appellant, but
learned counsel contended that the scope and language of Sec. 15
coupled with the language of Sec. 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 Sec. 15 refers to "marriage dis-
solved by decree for divorce" whereas in the present case, the mar- H
142 SUPREME COURT REPORTS [1989] 2 S.C.R.

riage was not dissolved by decree of divorce. The marriage was
A 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 Sec. 15 will
not apply to cases where a marriage is annulled by a decree of nullity in
B accordance with Sections 11 or 12 of the Act. Learned counsel how-
ever frankly conceded that so far as Sec. 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 Sec. 28 even against the order or a
decree passed under Sections 11 or 12, the phrase 'if there is such a
right of appeal, t])e time for filing has expired without an appeal hav-
ing been presented' are to be given its meaning, it would be clear that
c Sec. 15 also will apply to decrees by which the marriage is either
dissolved or annulled i.e. decrees which are passed under Sec. 12 or
under Sec. 13. Learned counsel in face of this raised another conten-
tion pertaining to the application of the Limitation Act which we will
examine later.
D
In order to understand the meaning of Sec. 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. Sec. 12 clause (1) of the Act reads:

E "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,-

xx xx xx
. F
xx xx xx

Similarly Sec. 13 clause ( 1) of the Act reads:

(1) Any marriage solemnized, whether before or after the
G 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,-

xx xx xx

H xx xx xx
SMT. LATA v. VILAS !OZA, J.] 143

-../ It is no doubt true that these two sections have different phraseology.
A
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 B
._,' 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. Sec.
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 c
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. D

(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 E

-
_..(
Court given in exercise of its original civil jurisdiction;

(3) There shall be no appeal under this section on the sub-
ject of costs only.

\ (4) Every appeal under this section shall be preferred F
--*- 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 proceed- G
-+ ing 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 decrees 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 is in this context that we H
144 SUPREME COURT REPORTS 11989] 2 S.C.R.

analyse the language of Section 15. It reads: ·t-·
A
"Divorced persons when may marry again-When a mar-
riage 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
B without an appeal having been presented or an appeal has
been presented but has been dismissed, it shall be lawful -t
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
c expired without an appeal having been presented or an appeal has
been presented but has been disll)issed'. 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 Sec.
13 then either party to the proceeding have tQ wait till the period of
D 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
E 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 dis-
F solved under Sections 11, 12 or 13 by grant of a decree of nullity or I
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 culmi-
nate into a decree bringing an end to the relationship of marriage then
G 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 Sec. 15 will not apply
H to cases when a decree is passed under Sec. 11 or 12 it will mean that as

"
SMT. LATA v. VILAS [OZA, J.) 145

soon as a decree is passed the party aggrieved may appeal but the other
A
party by remarriage would make the appeal infructuous and therefore
the right of appeal of one of the parties to the decree under Sec. 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
-i- Section 13 and a different provision for appeal when there is a decree B
under Sections 11 or 12 as the right of appeal against a decree under
I Sec. 11 or 12 could only be a limited right subject to the desire of the
other party. The Legislature in its wisdom has enacted Sec. 28 con-
ferring 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 c
+-· on the language of Sec. 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.
D
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 reads:
--y
"Divorce-!. Legal dissolution of marriage by a court or
other competent body, or'' according to forms locally recog-

-
E
nized. 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:
_;. F
"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 the Court had occasion to consider the effect of an
...., application for setting aside an exparte decree which was granted G
under Sec. 12 and it was contended that while the application by the
husband for setting aside the exparte decree was pending the wife
contracted remarriage. Will not remarriage have the effect of making
the application to set aside exparte 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 H
146 SUPREME COURT REPORTS 119891 2 S.C.R.

A appellant infructuous, and the learned Judge placing reliance on the
,.
observations made in Chandra Mohini's case held:

"That is the principle of Smt. Chandra Mohini v. Avinash
Prasad, AIR 1967 SC 581. The principle laid down in that
decision has general application. The Supreme Court
B
pointed out that on dissolution of marriage, a spouse can
lawfully marry only when there is no right of appeal against t
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." ,...,..

c 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 -J.
wherein the observations made in Chandra Mohini's case have been
quoted and it is held that:

"In view of this, it was incumbent on the respondent to
D 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 Art. 133(c) of the Limi·
tation Act, 1963 i.e. till 14th September, 1986. Till that y-
period was over, it was not lawful for either party to marry
E

-
again as provided by S. 15. It was incumbent on the respon-
dent, as observed in Lila Gupta's case (ILR 1969) 1 All. 92)
to have apprised 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 had
F
F
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
G 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:
H
SMT. LATA v. VILAS [OZA, J.I 147

"Even though it may not have been unlawful for the
A
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 respon-
dent to make sure whether an application for special leave
had been filed in this Court and he could not, by marrying
immediately after the High Court's decree, deprive the B
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 consider-
ing the impact of an appeal against a decree under Section 13 itself and C
+- not a decree under Section 11 or 12 but as indicated earlier if the
impact of the phraseology 'right of appeal' occnrring in Sec. 15 is to be
examined in the light of language of Sec. 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.
D
The decisions of the High Court on which reliance is placed by
courts below and the learned counsel for the respondent are:
i) Mohanmurari ii) Jamboo Prasad Jain, and Pramod Sharma. In
none of these decisions the impact of the right of appeal occurring in
Sec. 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 E
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 therefo'e the view taken by all the
courts below is not sustainable. The contention of the learned counsel F
for the appellant has to be accepted so far as this question is con-
cerned.

Learned counsel for the respondent contended that as Section 28
sub-clause (4) of the Act provides for the limitation for prefe~nl( an
appeal in view of Sec. 29 clause (3). Provisions of Limitation Act will G
not apply and if they do not apply as the trial court disposed of the
matter by a decree dated 3.5 .1985 th.e period of limitation for appeal
could only be upto 3.6.1985 as the period for obtaining copies as con-
templated under Section 12 clause (2) of the Limitation Act will not be
applicable and therefore even if it is held that under Sec. 15 the
respondent had to wait till the period of limitation for appeal expires H
148 SUPREME COURT REPORTS [1989] 2 S.C.R.

A as he entered into a marriage on 27.6.1985 it'was clearly after the
period of limitation has expired and therefore this marria~e 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
B 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 I
be said to be a marriage which he was entitled to perform in view of .t
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 Sec. 29 clause 3 of the Limitation Act whereas learned
c counsel appearing for the appellant contended that Sec. 29 clause 3
talks of suit or proceedings and therefore the phrase 'proceedings' i
used in clause 3 of Sec. 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(L) of the Limitation Act. It
D was therefore contended that the provisions of the Limitation Act will
be applicable to appeals under Sec. 28 of the Act.· Learned counsel for
the appellant placed reliance on the decisions in Chander Dev Chadha
v. Smt. Rani Bala, AIR 1979 Delhi 22; Smt. Sipra Dey v. Ajit Kumar
Dey, AIR 1988 Calcutta 28 and Kanti-bai v. Kamal Singh Thakur, y
AIR 1978M.P. 245.
E
Section 2(L) 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. Sec. 29 of the
Limitation Act reads:
F
"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
G the period prescribed by the Schedule, the provisions of
Section 3 shall apply as if such period, were the period
prescribeli by the Schedule and for the purpose of deter-
mining any period of limitation prescribed for any suit,
appeal or application by any special or local law, the pro-
visions contained in Sections 4 to 24 (inclusive) shall apply
H only insofar as, and to the extent to which, they are not
SMT. LATA v. VILAS [OZA, J.] 149

-4 expressly excluded by such special or local law. A
(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 proceed-
ing under any such law.
B
f (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
c
<t--· 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 D
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 Jaw. It is therefore clear E
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.

)~
The Schedule in the Limitation Act do not provide for an.appeal, F
under the Hindu Marriage Act but it is only provided in clause (4) of
Sec. 28 of the Hindu Marriage Act. Thus the limitation provided in
clause (4) of Sec. 28 is different from the Schedule of the Limitation
Act. Accordingly to clause (2) of Sec. 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 G
-\- 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 applic-
able. 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 limita- H
150 SUPREME COURT REPORTS [1989] 2 S.C.R.

tion for appeal. A Division Bench of Delhi High Court in Chandra
A Dev Chadha's case held as under:

"The Hindu Marriage Act is a special Jaw. That this
"special Jaw" prescribes" for an appeal a period of limita-
tion is also evident. The period of limitation is 30 days. It is
B a period different from that prescribed in the First
Schedule to the Limitation Act, 1963. But when we turn to t
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
c down in S. 29(2), Limitation Act, 1963 is satisfied even in a
case where a. difference between the special Jaw and Limi-
tation 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.
D Bombay, AIR 1953 Born 35 (supra) approved by the
Supreme Court in Vidyacharan Shukla v. Khubchand, AIR
1964 SC 1099 ( 1102).

Once the test is satisfied the provisions of Ss, 3, 4 to
y
24, Limitation Act, 1963 would at once apply to the special
E law. The result is that the court hearing the appeal from the
decree or order passed under the Hindu Marriage Act
would under S. 3 of the Limitation Act have power to
dismiss the appeal if made after the period of limitation of
30 days prescribed thereof by the special Jaw. Similarly
under S. 5 for sufficient cause it will have the power to
F condone delay. Likewise under S. 12(2) the time spent in
obtaining a certified copy of the decree or order appealed
from will be excluded. If it is so, S. 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 ap-
G peals afe, therefore, within time."
' -f
Similar is the view taken by the Calcutta High Court in Smt. Sipra
Dey's case and also the M.P. 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 the Limitation Act also is of no
H substance.
SMT. LATA v. VILAS [OZA, J.] 151

Consequently the appeal is allowed. The judgment passed by the A
High Court as well as 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 Ilnd Additional District Judge,
Nagpur before whom the appeal was filed, will hear the appeal on
merits and dispose it of in accordance with law. B
t

• A suggestion was made by the counsel for the appellant about
some tests and willingness of the appellant for getting those tests
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 c
opinion, it would be appropriate for the lower appellate court to con-
sider the matter if parties approach about additional evidence. The
appallant shall be entitled to costs of this appeal. Costs quantified at
Rs.2500.

R.S.S. Appeal allowed. D

-