Sushmita Mukherjee v. Asit Mukherjee — 1989 DIGILAW 388 (CAL)

JUDGMENT S. Ahmed, J.; An application under s. 5 of the Limitation Act was filed by the appellant for condonation of delay in preferring the appeal passed in Matrimonial Suit no. 25 of 87. It will appear that in preferring this appeal there has been a delay of 25 days. The petitioner has stated that her advocates in the Court below advised that an appeal against the decree has to be preferred within 90 days and the period taken for obtaining certified copy would be taken into account for computing the period of limitation. The learned advocate who filed the Memorandum of Appeal did not file the same along with the application under S. 5 of the Limitation Act in view of the fact he was also of the view that the period of limitation prescribed is 90 days. Because of the misconception of the learned advocates with regard to the period of limitation there has been a delay in preferring this appeal. Accordingly, she has prayed for condonation of delay under s. 5 of the Limitation Act. 2. The respondent is contesting this application. Mr. Pal appearing for the respondent has forcefully argued that an application under s. 5 of the Limitation Act is not maintainable in an appeal arising out of a decree of divorce. Referring to s. 28(4) Mr. Pal submits that it has provided for limitation of 30 days from the date of the decree or order and this limitation according to Mr. Pal has to be strictly construed because of the provisions of s. 15 of the Hindu Marriage Act. Section 15 of the Hindu Marriage Act runs thus––Divorce persons when may marry again––When a marriage has been disallowed by a decree of divorce and on the other 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. Mr. Pal pointedly referred to this provision and submitted that it shall be lawful or either party to the marriage to marry again after the time for appealing has expired. The time within which the appeal has to be filed provided by s. 28(4) of the Hindu Marriage Act. Mr. Pal pointedly referred to this provision and submitted that it shall be lawful or either party to the marriage to marry again after the time for appealing has expired. The time within which the appeal has to be filed provided by s. 28(4) of the Hindu Marriage Act. This time must be a specified date viz. a date 30 days after the date of the decree or order appealed against. If no appeal is preferred within that period marriage will be lawful. If this period is allowed to be unsettled by entertaining an application under s. 5 of the Limitation Act there will be no definite date on which either party to the marriage can remarry. Accordingly, Mr. Pal submits that if an application under s. 5 of the Limitation Act is entertained in an appeal arising out of a suit for divorce under the Hindu Marriage Act, the purpose of s. 15 will be completely frustrated. If either party to the marriage remarry after the divorce with due course after a substantial period has passed away even then if an application under s. 5 is maintained an appeal can be entertained on condonation of delay and thereby challenging a legality of the remarriage by implication in the appeal so filed. Accordingly, Mr. Pal submits that since the substantive provision of s. 15 will be defeated if an application under s. 5 of the Limitation Act is entertained. Because of this Mr. Pal submits that no application under s. 5 of the Limitation Act is entertainable in this appeal. As we have noted that the Hindu Marriage Act has prescribed the period of appeal. It will also appear that there is no provision in the schedule under the Limitation Act as to an appeal against an order passed under the Hindu Marriage Act. This limitation so prescribed is a limitation prescribed by law other than the Limitation Act. Section 29(2) of the Limitation Act provides that where any special or legal law prescribes for any suit appeal or application a period of limitation different from the date 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 legal law the provisions contained in ss. 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 legal law. In the Hindu Marriage Act there is no provision excluding operation of ss. 4 to 24 of the Indian Limitation Act. Mr. Pal contends that such exclusion is implied because of the provisions in s. 15 of the Hindu Marriage Act. 3. In this connection, we may note also the provision of s. 29(3) of the Limitation Act. It provides that 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 proceedings under any such law. This sub section viz., sub-s. (3) of s. 29 of the Limitation Act expressly excludes the application of the Limitation Act in respect of any suit or other proceedings relating to marriage and divorce. The question whether sub-s. (3) will apply in case of an appeal arising out of a decree of divorce has been considered in various decisions of this court as well as by the Supreme Court. In a decision reported in 1980(1) CLJ 309 (Devi Bhaduri v. Kumarjib Bhaduri) the court held that s. 29(3) of the Limitation Act excludes the application of the Act only to suits or other proceedings with respect to marriage and divorce. It does not specifically mention appeals as is used in sub-s. (2). The expression suits or other proceedings referred to in sub-s. (3) obviously relates to original proceedings and not to proceeding in appeal. The court further held upon consideration of the relevant provisions that S. 5 of the Limitation Act can be invoked for condonation of delay in presenting the appeal. In another decision reported in 1987(2) CLJ 446 (Smt. Sipra Deb v. Ajit Kumar Deb) another Division Bench of this court held that the word 'proceeding', appearing in s. 29(3) of the Limitation Act does not include an appeal. The provisions of the Limitation Act are not applicable to original matrimonial proceedings but applies in respect of appeal from original proceedings. It further held that Hindu Marriage Act being a special law in view of S. 29(2) of the Limitation Act s. 5 of Limitation Act can be invoked in respect of an appeal from original matrimonial proceedings. The provisions of the Limitation Act are not applicable to original matrimonial proceedings but applies in respect of appeal from original proceedings. It further held that Hindu Marriage Act being a special law in view of S. 29(2) of the Limitation Act s. 5 of Limitation Act can be invoked in respect of an appeal from original matrimonial proceedings. Supreme Court in a decision reported in 1989 (2) SCC 613 (Lata Kamal v. Vilas) has held that the Hindu Marriage Act does not exclude operation of Ss. 4 to 24 of the Limitation Act. Referring to s. 2(1) of the Limitation Act the court held that in. terms of the said provisions suit does not include an appeal or an application the court held that the impact of sub-s. (3) of S. 29 will be that though the provisions of the Limitation Act will not apply so far as a suit or an original proceedings under this Act but same will apply to an appeal and the court applied the provisions of s. 12(2) of the Limitation Act in computing the period of limitation. On the face of these decisions Mr. Pal submitted that it is not open to this court to come to a finding that because of sub-s. (3) of S. 29 of the Limitation Act, the provisions of Ss. 4 to 24 of the Limitation Act will not apply in a case of an appeal arising out of an order or decree under the Hindu Marriage Act. But Mr. Pal submitted that since these decisions did not take into consideration its impact on the substantive provisions of s. 15 of the Hindu Marriage Act, Mr. Pal submitted with force that if ss. 4 to 24 and particularly s. 5 of the Limitation Act is attracted to an appeal arising out of an order or decree under the Hindu Marriage Act the whole purpose of s. 15 will be frustrated. He submitted that no such construction .should be put to a section. Mr. Pal wanted to indicate that since the views referred to above was not arrived at after taking into consideration its impact on s. 15 it is open to this court to come to a fresh decision in this light. We agree with the submissions made by Mr. He submitted that no such construction .should be put to a section. Mr. Pal wanted to indicate that since the views referred to above was not arrived at after taking into consideration its impact on s. 15 it is open to this court to come to a fresh decision in this light. We agree with the submissions made by Mr. Pal that if provisions of s. 29(2) is applied in case of appeal of this nature the object of s. 15 will be seriously affected if not made nugatory altogether. An element of uncertainty will creep in obtaining the right of re-marriage granted under s. 15 of the Hindu Marriage Act. But since after consideration of the relevant provisions the Supreme Court also came to the finding that ss. 4 to 24 will apply in cases of appeals arising out of a decree or order under the Hindu Marriage Act, we are unable to come to a different decision for the limited purpose of considering an application under s. 5 of Limitation Act. 4. Mr. Pal submitted that the decree in question was signed by the learned District Judge on 27th July 1987 and judgment decreeing the suit was delivered on 15th July 1987. On 27th November 1987 an information was obtained by the opposite party informing him that no appeal has been filed between the period 18.8.87 to 19.9.87. Defendant in the suit obtained certified copy on 11th November 1987. On 8th February 1988 plaintiff married again and on 27th May 1989 a son was born out of the remarriage. The opposite party waited for a reasonable period, if any, appeal is preferred by the defendant but since from information obtained by him he found that no such appeal has been preferred, he had made remarriage again. If an application under s. 5 is entertained and ultimately the appeal succeeds it is likely to invalidate the second marriage even though parties to the second marriage had no fault of their own. Accordingly, they cannot be penalised as they have exercised their right of remarriage in terms of the provisions of s. 15 of the Hindu Marriage Act. In Lala Kamar's case (supra) the appeal arose against an order passed by the High Court in second appeal. Accordingly, they cannot be penalised as they have exercised their right of remarriage in terms of the provisions of s. 15 of the Hindu Marriage Act. In Lala Kamar's case (supra) the appeal arose against an order passed by the High Court in second appeal. The facts of the case was that the respondent-husband filed a petition on 7th March 1984 for declaration that the marriage with the appellant was a nullity. A decree was passed in favour of the respondent. The appellant wife filed a civil appeal before the Additional District Judge, Nagpur. Before this appeal could be filed the respondent husband married on 27th June 1985 and in the appeal filed by the appellant the respondent raised a preliminary objection contending that after passing of the judgment and decree he has married again after the expiry of the period of limitation for filing an appeal. When the remarriage took place there was no impediment against the respondent husband which could come in his way for contracting this marriage. Under these circumstances, it was contended that the appeal has been rendered infructuous. The objection was allowed by the appellate court. Against that order a second appeal was preferred before the High Court. The High Court dismissed the appeal holding that as the appeal was filed by the appellant after the remarriage of the respondent it has become infructuous. This order passed in second appeal by the High Court was challenged before the Supreme Court. Having found that ss. 4 to 24 of the Limitation Act applies in respect of an appeal against a decree or order of divorce under the Hindu Marriage Act the appeal was allowed. The judgment passed by the High Court as well as by the first appellate court was set aside. The matter was remanded back to the first appellate court with a direction to dispose of the appeal on merits in accordance with law. The decision of the Supreme Court, therefore, impliedly took into consideration a remarriage performed after the period of limitation of 30 days provided by s. 28(4) of the Hindu Marriage Act. The contention raised is substantially the same as raised by Mr. Pal here before us. This being the position we cannot but hold that an application under s. 5 of the Limitation Act will be maintainable and the same has to be disposed of on its own merit. 5. The contention raised is substantially the same as raised by Mr. Pal here before us. This being the position we cannot but hold that an application under s. 5 of the Limitation Act will be maintainable and the same has to be disposed of on its own merit. 5. Coming to the merit of the application we are of the view that the delay in preferring the appeal has been sufficiently explained. Accordingly, we allow the application. Delay in preferring the appeal is condoned. Let the Memo of Appeal be now registered if otherwise in order. There will be no order as to costs. Pabitra Kumar Banerjee, J. : I agree.