N.Rajendran vs S.Valli

N.RAJENDRAN APPELLANT(S)

VERSUS

S.VALLI RESPONDENT(S)

JUDGMENT

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 Signature Not Verified

for the appellant and Mr. Gautam Narayan, learned Digitally signed by Rajni Mukhi Date: 2022.02.08 18:44:37 IST Reason:

counsel for the respondent.

1

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

2 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 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

3 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

4 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 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

5 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 6 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

1 1989 (2) SCC 613

7 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) 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

8 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

9 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 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

10 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

11 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

12 appellant would not have taken place, in the first

place. Making up the case of a strained relationship

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

13 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

14 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 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:

15

“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.

16 [(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 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

17 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 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

18 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

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 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

20 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.

Similar is the view taken by the Calcutta High Court in Smt. Sipra Dey case and also 21 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

2 AIR 1988 Calcutta 28

22 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

23 of the context provided in Section 29(3), and placed

in a different setting, the word “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

24 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 15 of the Hindu Marriage Act only declares that it shall be lawful for either party to the marriage to marry again under certain

3 1981 KLT 602 4 AIR 1985 Ker 220

25 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 26 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 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 27 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

28 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.

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

29 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.

30

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 Court has clarified that though Section 15 31 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

32 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

33 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

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

34 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

5 (2019) 9 SCC 409

35 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.”

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 6 (2020) 14 SCC 657 7 2021 SCC Online SC 702

36 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.

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 37 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

38 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.

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

39 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.

……………………………………………………J. [K.M. JOSEPH]

……………………………………………………J. [HRISHIKESH ROY]

New Delhi;

February 03, 2022.

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