Research › Browse › Judgment

Kerala High Court · body

1981 DIGILAW 177 (KER)

KUITIMALU v. SUBRAMONIAN

1981-07-17

G.BALAGANGADHARAN NAIR

body1981
Judgment :- 1. This petition is by the appellant in the appeal which has been filed from the decree of the District Judge, Manjeri allowing the respondent's application for dissolving the marriage between them under the Hindu Marriage Act. The petition purports to be under S.5, Limitation Act and seeks to condone the delay of 60 days in filing the appeal on the ground that she was under the bona fide impression, caused by the advice of her lawyer at Manjeri, that limitation for the appeal was 90 days and that it was when she met her lawyer at Ernakulam that she was advised that the time for appeal was only 30 days. In addition to her own affidavit the petitioner has produced an affidavit sworn by her lawyer at Manjeri that he had advised her that there were 90 days for filing the appeal and that he realised the mistake only later when it was pointed out by the Advocate at Ernakulam and he referred to the relevant provision in the Hindu Marriage Act. In the light of this latter affidavit which was occasioned by the respondent's attempt to undervalue the petitioner's unsupported affidavit, I am satisfied that there was sufficient cause - if S.5 of the Limitation Act applied - to condone the delay. 2. That leads to the respondent's further objection that S.5 of the Limitation Act 1963 - the 1963 Act for short - does not apply at all to appeals under the Hindu Marriage Act and that the petition has to be dismissed on that short ground. This objection, which was his principal objection requires to be considered in detail. S.29(2) and (3) of the 1963 Act read: (1) ... (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 S.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 S.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) " The corresponding sub-sections (2) and (3) of S.29 of the Limitation Act, 1908 (the 1908 Act) might be quoted for comparison: (1) (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of S.3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law - (a) the provisions contained in S.4, S.9 to 18, and S.22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. (3) Nothing in this Act shall apply to suits under the Indian Divorce Act. (4) " Sub-section (2) of S.29 of the 1963 Act is materially different from its predecessor in the 1908 Act and the difference has been thus explained in Mangu Ram v. Delhi Municipality, AIR. 1976 SC 105 at 108: "Whereas under the Indian Limitation Act, 1908 S.29, sub-section (2), cl. (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than those contained in S.4, 9 to 18 and 22, shall not apply and, therefore, the applicability of S.5 was in clear and specific terms excluded. S.29, sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Ss 4 to 24, which would include S.5, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law." S.28 of the Hindu Marriage Act which provides for appeals prescribes a limitation period of 30 days for appeals. It is a special law within S.29(2) of both the Limitation Acts. It is a special law within S.29(2) of both the Limitation Acts. That the 1963 Act does not contain any period of limitation different from S.28 of the Hindu Marriage Act does not exclude S.29 (2) of the 1963 Act, for as painted out in Vidyacharan Shukla's case, AIR. 1964 SC. 1099, following Kaushalya Rani v. Gopal Singh, AIR. 1964 SC. 260, and approving the decision of the Bombay High Court in Canara Bank Ltd. v. Wardom Insurance Co. Ltd., AIR. 1953 Bombay 35, S.29 (2) would apply even to a case where a difference between the special law and the Limitation Act arose by the omission to provide for a period of limitation to a particular proceeding under the Limitation Act. Although Vidyacharan Shukla's case was concerned with S.29 (2) of the 1908 Act, there is no difference between the two Acts on this aspect and it still governs. 3. On its express term and as explained in Mangu Ram supra, Ss 4 to 24 of which S.5 is relevant to this case, apply even to a special law if they are not excluded by such law. Such exclusion might be direct and express or as pointed out in Hukumdev v. Lalit Narain, AIR. 1974 SC. 480, 490, "In our view, even in a case where the special law does not exclude the provisions of S.4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation." There is no exclusion of S.5 of the 1963 Act either expressly or by implication in the Hindu Marriage Act. The prescription of a period of limitation in mandatory terms in S.28 (4) of the Hindu Marriage Act cannot by itself operate to exclude the provisions of the Limitation Act for "Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of S.S." Mangu Ram's case supra at page 108 Sub-section (4) of S.28 of the Hindu Marriage Act does not therefore exclude S.5 of the 1963 Act. 4. 4. The rub however lies in S.29 (3) of the Limitation Act which decrees that nothing in the Act "shall apply to any suit or other proceeding under any" law relating to marriage and divorce, save as otherwise provided in such law. The respondent contends that the sub-section totally excludes the Limitation Act from all proceedings, original and appellate, under the Hindu Marriage Act, while the petitioner argues that what is outside the Limitation Act is only suits and other original proceedings under the marriage and divorce laws including the Hindu Marriage Act. Now S.29 (3) of the 1908 Act was more limited because it merely provided that "Nothing in this Act shall apply to suits under the Indian Divorce Act". The Law Commission had observed in its third report, 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." Although the recommendation of the Law Commission that these laws may be specified has not been carried out, sub-section (3) of the 1963 Act has amplified the corresponding sub-section of the 1908 Act to exclude suits and other proceedings under any law dealing with marriage and divorce. 5. On the terms of sub-section (3) of the 1963 Act and in the nature of the case what is excluded is suits and other proceedings of an original nature like a petition for relief under the Marriage and Divorce Laws. Although the expression 'proceedings' is somewhat elastic and might in certain contexts include an appeal, here it is linked with the expression 'suit' and they should therefore be understood in their cognate sense, the word 'proceeding'being restricted to a sense analogous to that of a suit. Some of the acts on which proceedings could be instituted under these laws are continuing wrongs and it would have been incompatible with the nature of the remedies and the human issues involved in them to harness the proceedings to the laws of limitation. Some of the acts on which proceedings could be instituted under these laws are continuing wrongs and it would have been incompatible with the nature of the remedies and the human issues involved in them to harness the proceedings to the laws of limitation. That appears to be the rationale of the exclusion. But such reasons have no relevance to an appeal from a decree or order passed in a suit or proceeding under the Act, even though the appeal itself is empowered by the Act. It is also significant to note that what S.28, Hindu Marriage Act which provides for appeals, enacts is that all decrees made by the court in any proceeding under the Act shall be appealable as original decrees of the court and that such appeals shall lie to the court to which appeals ordinarily lie, thus emphasising the distinction between proceedings under the Act and appeals. S.55 of the Indian Divorce Act contains a like provision with the more significant reference to decrees and orders made by the court "in any suit or proceeding under this Act", expressions which are not different from the words "any suit or other proceeding" in S.29 (3) of the 1963 Limitation Act. 6. An early case A v. B, ILR. XXII Bombay 612, held that the term "suit" does not include an appeal and that appeals from decrees in suits under the Indian Divorce Act are not excluded from the operation of the Limitation Act. Chander Dev v. Rani Bala, AIR. 1979 Delhi 22, which is nearer in point took the view that in calculating the period of limitation for an appeal under the Hindu Marriage Act, the appellant was entitled under S.12(2), Limitation Act, to exclude the period spent in obtaining a copy of the decree. The learned Judges discussed the question at some length and held: "The Limitation Act, 1963 is inapplicable to original proceedings. But appeals from decrees in suits under the Indian Divorce Act and appeals from decrees and orders under the Hindu Marriage Act are not excluded from the operation of the Indian Limitation Act. ... ... The prohibition contained in S.29 (3), Limitation Act, 1963 is restricted only to suits and proceedings and hence does not extend to appeals." 7. But appeals from decrees in suits under the Indian Divorce Act and appeals from decrees and orders under the Hindu Marriage Act are not excluded from the operation of the Indian Limitation Act. ... ... The prohibition contained in S.29 (3), Limitation Act, 1963 is restricted only to suits and proceedings and hence does not extend to appeals." 7. The decision applies to the instant case as S.12, with which it was concerned, is like S.5 which is relevant here among the Sections specified in S.29 (2) of the Limitation Act as applicable to appeals. 8. I hold that S.5 of the Limitation Act applies to appeals under the Hindu Marriage Act. 9. On the merits I have already indicated that the petitioner has made out sufficient cause. The delay is condoned and the application is allowed.