N. RAJENDRAN versus S. VALLI

[2022] 16 S.C.R. 498

[2022] 16 S.C.R.

N. RAJENDRAN

S. VALLI

(Civil Appeal No. 3293 of 2012)

BFEBRUARY 03, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Hindu Marriage Act, 1955 – ss.13(1)(ia), 15 – Family CourtsAct, 1984 – ss. 19, 20 – Limitation Act, 1963 – s. 29 – Cruelty –Irretrievable breakdown of marriage – Dissolution of Marriage –CCase of appellant that respondent left appellant and returned toher parental home – Divorce petition by appellant on ground ofcruelty – Family Court allowed divorce petition – Respondent filedappeal under section 19 of the Family Courts Act, 1984 before theHigh Court – Appellant contended that the time for filing an appealDhad expired and so he had re-remarried on the strength of the decreeof dissolution of marriage – Respondent later filed petition seekingrestitution of conjugal rights u/s. 9 of the Hindu Marriage Act, whichwas still pending – High Court reversed the decree of dissolution ofthe marriage between the appellant and the respondent holdingthere was no cruelty – On appeal, held: Appellant failed inEpersuading Court to hold that the appeal was not filed within theperiod stipulated u/s. 19 of the Family Courts Act – The secondmarriage of the appellant took place in contravention of mandateof s.15 of the Hindu Marriage Act – High Court was right in itsfinding – There was no cruelty – No possibility of rapproachementFbetween appellant and respondent – Marriage between appellantand respondent is dead – In exercise of power u/Art. 142 of theConstitution, marriage between appellant and respondent declaredas dissolved.

Disposing of the appeal, the CourtG

HELD: 1. On perusal of rule 52 of the Family Courts(Procedure) Rules, 1996. It plainly would suffice to repel thecontention of the appellant that an appeal can be maintained withinthirty days even if it is in the absence of certified copy. Comingfurther to the arguments of the learned counsel for the appellantHthat Section 19 overrides the provisions of the Code of Civil

Procedure and there may not be any need to have certifiedcopy of the judgment, this Court finds this argument to be clearlyuntenable having regard to Rule 52 made by the Madras HighCourt under the said Section 21 of the very Act namely, the FamilyCourts Act. The non-obstante clause in Section 19 actually has adifferent purport and scope and it was not meant to sweep awayall requirements as existed in law for maintaining an appeal. [Para23][515-C-D]

2. Equally, without substance is the contention of theappellant based on Section 19(3) of the Act. It constituted speciallaw within the meaning of Section 29(2) of the Limitation Act. Itmust be noticed that the Family Courts Act itself was based onthe overwhelming realization that specialized institution whichmust resort increasingly to efforts of reconciliation between theparties be established. It must be noticed that even with thepromulgation of the Act, unless Family Court is established,the Courts which were earlier dealing with the provisions wouldcontinue to have jurisdiction. With the establishment of FamilyCourt and the jurisdiction it was to exercise under Section 7 ofthe Act, this Court is of the view that the Family Courts Act mustbe read along with the cognate enactments. In other words, theFamily Courts Act is not standalone Act. It draws sustenancefrom Acts like the Hindu Marriage Act. This is for the reasonthat petition within the meaning, for instance, of the HinduMarriage Act, after Family Court is established in India, is tobe dealt with by the Family Court, on the grounds as providedunder the Hindu Marriage Act. In fact, mere perusal of Section7 of the Family Courts Act would show that it speaks about suitsand proceedings. Therefore, reading Section 7 of the FamilyCourts Act with Section 29 of the Limitation Act, also fortifies usin our finding that the word ‘proceedings’ within the meaning ofSection 29(3) is to be confined to the original proceedings. [Para24][515-E-H; 516-A]3. This court also does not find any merit in the contentionbased on Section 20. Section 20 gives overriding effect to theFamily Courts Act, notwithstanding anythingwhich is inconsistentwith any other Act. It is true that it is intended to have anoverwhelming sway even in the teeth of other provisions. But in

Aorder to apply Section 20, and to rule out Section 12 of theLimitation Act, the appellant must succeed in the first place ineliminating the application of Section 29(2) of the Limitation Act.Once Section 29(2) applies, the Family Courts Act would be aspecial enactment providing for special period of limitation ascontemplated in Section 19 but bringing in its train, the provisionsBof Sections 4 to 24 of the Limitation Act. Section 12 of theLimitation Act is legitimately available to prospective appellant.It is also conducive to the interest of justice. In fact, it isincomprehensible how on one hand, the law commands throughRule 52 of the Rules that certified copy must accompany anCappeal, and yet decision declaring the marriage dissolved couldhold litigant to ransom, when she has no right to file an appealwithout certified copy, and yet successful party before theoriginal court is left free to remarry before the period runs outunder the Limitation Act. [Para 25][516-B-E]

D4. There is thus nothing inconsistent in Section 12 readwith Section 29(2) of the Limitation Act with Section 19 of theFamily Courts Act. Therefore, there is no merit at all in thecontention of the appellant that the provisions of Section 20 willoverride the provisions of Section 12 of the Limitation Act therebyrendering the appeal filed by the respondent beyond time. [ParaE26][516-E-F]

5. The appeal on being filed on 09.09.2004 must be treatedas having been presented within the meaning of Section 15 of theAct. The upshot of the discussion is that the appellant has notmade out case to overturn the findings on merits. Equally, asFthe appellant failed in persuading us to hold that the appeal wasnot filed within the period stipulated in Section 19 of the FamilyCourts Act or that the appeal was not presented during the periodof Section 15 within time, the second marriage which is reliedupon by the appellant clearly took place in 33 contravention ofGmandate of Section 15 of the Hindu Marriage Act and this Courthas no hesitation in holding that the High Court was entirely rightin its findings. [Para 27][517-B-D]

6. There is child born in the said marriage. No doubt beingin contravention of Section 15, it becomes fait accompli but at

the same time we do not reasonably perceive any possibility ofthe appellant and the respondent cohabiting as husband and wife.Whatever life was there in the marriage has been snuffed out bythe passage of time, the appearance of new parties and vanishingof any bond between the parties. Not even the slightest possibilityof rapprochement between the appellant and the respondentexists for reasons though which are entirely due to the actions ofthe appellant and for which the respondent cannot be blamed.The marriage between the appellant and the respondent hasbecome dead. It can be described as point of no return. Thereis no possibility of the appellant and the respondent stitchingtogether any kind of reasonable relationship as the tie betweenthe parties has broken beyond repair and having regard to thefacts of this case, this court would think that it would be in theinterest of justice and to do complete justice to the parties thatthis Court should pass an order dissolving the marriage betweenthe appellant and the respondent. [Para 32][520-D-G]

Lata Kamat v. Vilas (1989) 2 SCC 613 : [1989] 2 SCR137; R. Srinivas Kumar v. R. Shametha (2019) 9 SCC409 : [2019] 12 SCR 873; Munish Kakkar v. NidhiKakkar (2020) 14 SCC 657 : [2019] 15 SCR 169;Sivasankaran v. Santhimeenal (2021) SCC Online SC702 - referred to.

Canara Bank, Bombay v. Warden Insurance Co. Ltd.(1952) Bom 1083; Vidyacharan Shukla v. Khubchand(1964) AIR 1099 : [1964] SCR 6 129; Sm. Sipra Deyv. Ajit Kumar Dey AIR 1988 Cal 28; Kuttimalu v.Subramonian (1981) KLT 602; Kunnarath Yesoda v.Manathanath Narayanan AIR 1985 Ker 220; ChanderDev v. Rani Bala AIR 1979 Delhi 22 – referred to.

ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 3293of 2012.

From the Judgment and Order dated 12.02.2010 of the High Courtof Judicature at Madras in C.M.A. No. 3352 of 2004.

K. S. Mahadevan, Ms. Swati Bansal, Varun Mudgal, RangarajanBR., Rajesh Kumar, Advs. for the Appellant.

Gautam Narayan, Ms. Asmita Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.C

1. By the impugned judgment, the High Court has reversed thedecree of dissolution of the marriage between the appellant and therespondent which is passed under Section 13 (1) (ia) of the HinduMarriage Act, 1955.

2. We have heard Mr. K.S Mahadevan, learned counsel for theDappellant and Mr. Gautam Narayan, learned counsel for the respondent.

3. The appellant and the respondent were married as per the Hindurites and customs on 29.08.1999. According to the appellant, there werecertain differences between his sister and the respondent’s brother, whowere married to each other, which led to the appellant’s sister returningEto her parental house. Further, the case of the appellant is that therespondent left the appellant on 18.01.2000 and returned to her parentalhome. She did not return home. She stood accused of cruelty andaccordingly, the divorce petition was filed on 05.03.2001 seekingdissolution. The Family Court allowed the petition by its decree datedF23.07.2004. An appeal was carried by the respondent before the MadrasHigh Court under Section 19 of the Family Courts Act, 1984 and it wasfiled on 09.09.2004. According to the appellant, since the period for filingan appeal by the respondent had expired, he re-married on 31.10.2004on the strength of the decree of dissolution dated 23.07.2004. He wasserved with the notice in the matter in May, 2005. Respondent, in fact,Gfiled petition seeking restitution of conjugal rights under Section 9 ofthe 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 thejudgment of the Family Court. He would submit that this is case of

matrimonial cruelty practised by the respondent. The Trial Court hasafter considering the evidence rendered finding to justify the grant ofdissolution of the marriage. It is pointed out that there was strainedrelationship between the respondent and the appellant’s sister. It mustbe noticed here that the appellant’s sister was married to the brother ofthe respondent on 24.05.1999, prior to the marriage between the appellantand 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 respondentand the appellant’s sister had telling effect on the relationship betweenthe appellant and the respondent. The learned counsel for the appellantcontended that the respondent would threaten to commit suicide. Whatis more, the learned counsel for the appellant would further contend thatthough the appellant requested the respondent to come back. But sherefused, stating that in view of the fact that she had gone to deliver achild, 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 furthercontended that the attitude of the respondent is reflected by the admittedfact that the respondent did not file any petition seeking restitution ofconjugal rights. If she was genuinely interested in coming back and stayingwith the appellant, she would have done that. It is pointed out furtherthat the findings rendered by the High Court about there not being anystrained relationship between the respondent and her sister-in-law isunsustainable. He pointed out the contradictions in the impugned judgmentin this regard. He would contrast the finding that there was no suchstrain with the finding that there was strained relationship between thefamilies. The respondent was never willing to live with the appellant.The finding of the High Court that the respondent was always ready andwilling to rejoin is criticized as being unsustainable on facts. It is pointedout in this regard that the intention to return was not reflected in thepleadings, and it finds expression for the first time in the evidence of therespondent only.

5. It is further contended that the finding of the High Court aboutthe effect of the respondent taking with her all jewels and belongings,which was fact relied on by the Family Court to find that the respondentwas not interested in living with the appellant, cannot be sustained on theground that it is speculative and the finding of the High Court is bereft ofany evidence in support thereof. Two views being possible, it is contendedthe High Court should not have reversed the view of the Trial Court. Itis further contended that the appellant and the respondent have been

Aliving separately since 18.01.2000. 22 Years have passed away. longand continuous separation, the marriage is as of today only legal fiction.It is tie beyond repair, the entire substratum having evaporated. Thesanctity of the marriage is lost. It is, therefore, contended that the judgmentof the High Court must be overturned. Next, it is contended that theappeal filed by the respondent under Section 19 was clearly beyondBtime. It is pointed out that when the High Court has rejected the contentionthat the period of 90 days is available to appeal the decree, it has erredin finding that the appeal was filed within time on the wings of theprovisions of Section 12 of the Limitation Act.Learned counsel would contend that the finding is in the teeth ofCSection 29 (3) of the Limitation Act. He further pointed out that Section19 of the Family Courts Act is code in itself and it is evident fromSection 20 which declares that Section 20 will have effect notwithstandinganything inconsistent with any other law. He would further contend, inthis regard, most pertinently that Section 19 (1) contemplates that theDprovisions of the Code of Civil Procedure will not stand in the way of theoverwhelming operation of Section 19 of the Family Courts Act. In otherwords, he contends that in case which falls under the Code of CivilProcedure, it is mandatory that an appeal should be accompanied by acertified copy but when Section 19(1) is properly appreciated, thisrequirement must be treated as having been taken away. Equally, heEdwells upon Section 19(1) to contend that the provisions of the FamilyCourts Act will have effect notwithstanding anything which is contraryto any other law. Thus, the period of 30 days in Section 19 must beadhered to by the prospective appellant. Hence, the appellant is notentitled to exclude any period with the aid of the Limitation Act. HeFwould contend that the High Court has wrongly relied upon Section 29(2)of the Limitation Act. This being law relating to marriage and divorce,it fell squarely within the four walls of Section 29(3). In this regard, hewould contend that while an appeal before the High Court under Section19 is not suit, it would certainly be proceeding within the meaning of

Section 29(3). He would submit that the judgment of this Court reportedGin Lata Kamat v. Vilas[1], etc. was matter which fell to be consideredunder Section 28 of the Hindu Marriage Act. Having regard to thepronounced differences in the provisions of the Family Courts Act, inparticular, Sections 19 and 20, the word ‘proceeding’ in Section 29(3)

H1 1989 (2) SCC 613

would embrace an appeal which is carried under Section 19. He wouldnext contend that under Section 15 of the Hindu Marriage Act, the appealmust be presented in time. The word “presented” according to Mr. K.SMahadevan, Ld. Counsel, cannot be allowed to be interpreted in pedanticmanner and it should not be understood as the mere pushing of an appealinto 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 onlyfiled but further moved and brought up before the Court on the judicialside. Though the appeal was filed on 09.09.2004, it is pointed out that theapplication for stay of decree was signed as early as on 30.08.2004. Theappeal was kept ready and it was not filed immediately deliberately. Themoment, the respondent came to know that the appellant got re-marriedon 30.01.2004, she moved an application for stay on 01.11.2004.Therefore, she deliberately wanted to know whether the appellant wouldre-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 itis impossible to determine as to when party who suffers decree islikely to file an appeal. It is the conduct of the respondent which isharped upon to contend that she may not be granted any relief.6. Per contra, Shri Gautam Narayan, learned counsel for therespondent would point out that no case whatsoever was made out atany point of time for the appellant to seek dissolution of marriage.After the marriage, finding that, she was pregnant, and as is natural, shewent to her parental house. The pregnancy was not smooth affair. Itwas actually complicated. Her father passed away. Circumstancesbeyond her control constrained her to stay at her parental house and ithas nothing to do with lack of inclination on the part of the respondent tofulfill her obligations under the marital tie. It is pointed out that theallegations which found favour with the Family Court are clearly not ofa standard, which would attract the ground of cruelty contemplated bythe law giver. No ground whatsoever existed for the Family Court togrant decree of dissolution. It is pointed out that the High Court hasexhaustively discussed the matter with reference to the circumstancesand has correctly come to the conclusion that there is no cruelty at all.The respondent is entirely blameless. She is teacher. There is son inthe marriage. It is pointed out that the appellant has not at all taken anyinterest in his own son. He would point out as far as the question relatingto the applicability of Section 29(3) of the Limitation Act is concerned,Section 19 of the Family Courts Act is special provision within the

Ameaning of Section 29(2) and it is, therefore, Section 29(2) which wouldapply. He would point out that word ‘proceeding’ in Section 29(3) mustbe confined to proceedings akin to suit, which means that originalproceedings brought by the parties and not an appeal carried in the matter.

7. He also would contend that there is no merit at all in theBcontention about the interpretation sought to be placed on the word“presented” in Section 15 of the Hindu Marriage Act. He would furtherpoint out that the Court may notice the facts and the plight of therespondent, who is blameless but for the unholy haste with which herhusband, has rushed into marriage.

C8. As far as the contention of the learned counsel for the appellantthat the High Court erred in the matter of reversing the decree of theFamily Court is concerned, we are of the view that there is absolutely nomerit in the contention. Undoubtedly, to describe the marriage as short-lived will not extricate the appellant from the rightful share of blame thatfalls on his shoulders. The marriage took place on 29.09.1999. HavingDbecome pregnant, the respondent left for her matrimonial home on18.01.2000. The child was born on 29.08.2000. The father of therespondent died in February, 2001.

9. The haste with which the appellant has instituted proceedingsis clearly made out by the fact that the appellant moved the petitionEbefore the Family Court on 05.03.2001. In other words, the petition isfiled within period of less than two years of the date of marriage.Cruelty, undoubtedly, can consist of physical as also mental cruelty. It isa matter to be decided on the facts of each case. But we are of the clearview that by any yardstick the case sought to be made by the appellantFwas without any basis. The evidence in this case consisted of the oraltestimony of the appellant PW-1, and the oral testimony of the respondentis RW-1. Apart from that, exhibits A-1 & A-2, as such do not throw anylight on the cruelty alleged against the respondent. The High Court hasclearly found that there was no basis at all in the allegation of cruelty,which even as reiterated before us, consists in the so-called strainedGrelationship between the respondent and the appellant’s sister. The HighCourt rightly noted that having regard to the date of the marriage of theappellant’s sister, which is prior to the appellant’s marriage, it cannot bea case where there was strain between them, as in such case, themarriage between the respondent and the appellant would not have takenHplace, in the first place. Making up the case of strained relationshipbetween the appellant and the respondent as ground of cruelty is beyondour comprehension. To our query to the learned counsel for the appellantas to whether there are any other circumstances or instances of cruelty,learned counsel of appellant apart from pointing out to the threat to commitsuicide and refusal to come back, was unable to point out any otherspecific instance of cruelty. As regards, the respondent not coming back,it is quite clear that respondent being pregnant, she had to go to herparental house. This was but natural. The pregnancy was not smoothone as pointed out. If the wife decided to stay for some more time in herown parent’s house, after the delivery of the child, it is beyond ourcomprehension as to how such case could have been brought beforethe Court, and more importantly without even waiting for reasonableperiod of time. The appellant was not even keeping in mind the fact thathad fathered child, rushes to the Court and files the petition seekingdivorce. We cannot be oblivious to the death of the father of the respondenton 03.02.2001. Keeping in view these facts, we do not see any groundbeing made out by the appellant for interfering with the findings thatthere 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 evidencefor the alleged threat to commit suicide and we do not think that there isany material produced which can be believed apart from what can wedescribe as normal wear and tear, which is normal to most marriages, ifnot all. There is nothing which is made out to justify decree of dissolutionof marriage on the ground of cruelty by the respondent.

10. The next argument advanced by the appellant that havingregard to the provisions of Section 15 and the appellant having re-marriedon 31.10.2004, the matter must be considered and disposed of in thelight of the second marriage which is entirely lawful. The appeal wasfiled on 09.09.2004, which is beyond the period of 30 days stipulated inSection 19 of the Family Courts Act. The High Court has found that theappeal is within time, noticing that after the decree was passed by theFamily Court on 23.07.2004, an application for certified copy wasmade by the respondent on 31.07.2004 and the period spent in obtainingthe copy is to be excluded. When certified copy was made availableon 19.08.2004, the respondent, according to the appellant, signed theapplication for stay on 30.08.2004. The appeal was prepared on01.09.2004. The appeal was filed only on 09.09.2004. Therefore, if theperiod spent in applying and obtaining certified copy is excluded, theappeal is well within time as found by the High Court. If the appellant is

Ajustified in contending that the Court could not have allowed the respondentto seek shelter under Section 12 of the Limitation Act, the appeal wouldbe beyond time and the 2[nd] marriage contracted by the appellant wouldbe entirely lawful.

11. In order to the appreciate the contention of the appellant, weBmust advert to Section 15 of the Hindu Marriage Act, 1955. It reads asfollows:

“When marriage has been dissolved by decree of divorce andeither there is no right of appeal against the decree or, if there issuch right of appeal, the time for appealing has expired withoutCan appeal having been presented, or an appeal has been presentedbut has been dismissed, it shall be lawful for either party to themarriage to marry again.”

12. Section 19 of the Family Courts Act is to be noticed next,which reads as follows:D

“(1) Save as provided in sub-section (2) and notwithstandinganything contained in the Code of Civil Procedure,1908 (5 of 1908)or in the Code of Criminal Procedure, 1973 (2 of 1974) or in anyother law, an appeal shall lie from every judgment or order, notbeing an interlocutory order, of Family Court to the High Courtboth on facts and on law.E

(2) No appeal shall lie from decree or order passed by the FamilyCourt with the consent of the parties2 [or from an order passedunder Chapter IX of the Code of Criminal Procedure, 1973 (2 of1974):

FProvided that nothing in this sub-section shall apply to any appealpending before High Court or any order passed under ChapterIX of the Code of Criminal Procedure, 1973 (2 of 1974) beforethe commencement of the Family Courts (Amendment) Act, 1991(59 of 1991).]

G(3) Every appeal under this section shall be preferred within aperiod of thirty days from the date of the judgment or order of aFamily Court.

[(4) The High Court may, of its own motion or otherwise, call forand examine the record of any proceeding in which the FamilyHCourt situate within its jurisdiction passed an order under Chapter

IX of the Code of Criminal Procedure, 1973 (2 of 1974) for thepurpose of satisfying itself as to the correctness, legality or proprietyof the order, not being an interlocutory order, and as to the regularityof such proceeding.]

[(5)] Except as aforesaid, no appeal or revision shall lie to anycourt from any judgment, order or decree of 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 notwithstandinganything inconsistent therewith contained in any other law for thetime being in force or in any instrument having effect by virtue ofany law other than this Act.”

14. The other set of provisions which must be noticed is Section29 of the Limitation Act which reads as under:

“29. Savings.—(1) Nothing in this Act shall affect section 25 ofthe Indian Contract Act, 1872 (9 of 1872).

(2) Where any special or local law prescribes for any suit, appealor application period of limitation different from the periodprescribed by the Schedule, the provisions of section 3 shall applyas if such period were the period prescribed by the Schedule andfor the purpose of determining any period of limitation prescribedfor any suit, appeal or application by any special or local law, theprovisions contained in sections 4 to 24 (inclusive) shall apply onlyin so far as, and to the extent to which, they are not expresslyexcluded by such special or local law.

(3) Save as otherwise provided in any law for the time being inforce with respect to marriage and divorce, nothing in this Actshall apply to any suit or other proceeding under any such law.

(4) Sections 25 and 26 and the definition of “easement” in section2 shall not apply to cases arising in the territories to which theIndian Easements Act, 1882 (5 of 1882), may for the time beingextend.”

15. On the one hand, it is the case of learned counsel for theappellant that having regard to the provisions of Family Courts Act, i.e.,Section 19, Section 29(3) would clearly apply and, therefore, the Limitation

AAct would not apply. Since the Limitation Act would not apply, the periodspent in applying for certified copy and obtaining the same cannot beexcluded by the respondent in calculating the period of limitation.

16. The learned counsel for the respondent on the other hand,would contend that it is Section 29(2) which would apply. Another alliedBargument which we must notice is that the appeal though filed on09.09.2004, 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 DivorceCAct (4 of 1869).”

18. This meant that there is no period of limitation, and that theLimitation Act did not apply to suit for divorce under the Indian DivorceAct, 1869. The Third Report of the Law Commission on the LimitationAct, 1908 had this to say about the need for change.D

“Para 60. Sub-section (3) makes this Act inapplicable to suitsunder the Divorce Act, 1869. There are other Acts like the ParsiMarriage and Divorce Act and the Special Marriage Act, dealingwith marriage and divorce. The reasons for excluding proceedingsunder the Divorce Act, 1869 are equally applicable to proceedingsEunder these other Acts. We recommend that the sub-section maybe amplified to include all Acts relating to matrimonial causes.The Acts to be included may be specified when drafting theamendment to the section

19. This question as to whether the Limitation Act would apply toFan appeal under the matrimonial laws is not res integra. No doubt, underthe auspices of Section 28 of the Hindu Marriage Act, in the decision ofthis Court reported in Lata Kamat (supra), we need only notice thefollowing paragraph:

“12.The Schedule in the Limitation Act does not provide for anGappeal, under the Hindu Marriage Act but it is only provided insub-section (4) of Section 28 of the Hindu Marriage Act. Thusthe limitation provided in sub-section (4) of Section 28 is differentfrom the Schedule of the Limitation Act. Accordingly to sub-section(2) of Section 29, provisions contained in Sections 4 to 24 will beapplicable unless they are not expressly excluded. It is clear thatH

[K. M. JOSEPH, J.]

the provisions of the Act do not exclude operation of provisions ofSections 4 to 24 of the Limitation Act and therefore it could not besaid that these provisions will not be applicable. It is thereforeclear that to an appeal under Section 28 of the Hindu MarriageAct, provisions contained in Section 12 sub-section (2) will beapplicable, therefore the time required for obtaining copies of thejudgment will have to be excluded for computing the period oflimitation for appeal. Division Bench of Delhi High Court inChandra Dev Chadha case held as under : (AIR pp. 24-25)

The Hindu Marriage Act is special law. That this “special law”prescribes” for an appeal period of limitation” is also evident.The period of limitation is 30 days. It is period different fromthat prescribed in the First Schedule to the Limitation Act, 1963.But when we turn to the First Schedule, we find there is no provisionin the First Schedule for an appeal against the decree or orderpassed under the Hindu Marriage Act. Now it has been held thatthe test of “prescription of period of limitation different fromthe period prescribed by the First Schedule” as laid down in Section29(2), Limitation Act, 1963 is satisfied even in case where adifference between the special law and Limitation Act arose byomissions to provide for limitation to particular proceedingunder the Limitation Act, see, Canara Bank, Bombay v. WardenInsurance Co. Ltd. Bombay, AIR 19 Bom approved by the SupremeCourt in Vidyacharan Shukla v. Khubchand.Once the test is satisfied the provisions of Ss, 3, 4 to 24, LimitationAct, 1963 would at once apply to the special law. The result isthat the court hearing the appeal from the decree or order passedunder the Hindu Marriage Act would under Section 3 of theLimitation Act have power to dismiss the appeal if made after theperiod of limitation of 30 days prescribed therefor by the speciallaw. Similarly, under Section 5 for sufficient cause it will have thepower to condone delay. Likewise, under Section 12(2) the timespent in obtaining certified copy of the decree or order appealedfrom will be excluded. If it is so, Section 12(2) of the LimitationAct is attracted, and the appellants in all the three appeals will beentitled to exclude the time taken by them for obtaining certifiedcopy of the decree and order. The appeals are, therefore, withintime.

ASimilar is the view taken by the Calcutta High Court in Smt. SipraDey case and also the M.P. High Court in Kantibai case. It istherefore clear that the contention advanced by the learned counselfor the respondent on the basis of the Limitation Act also is of nosubstance.”

B20. We may also notice that this subject has engaged the HighCourt on more elaborate basis. Apart from the decision of the DelhiHigh Court. This Court also noticed the judgment of the Division Benchof Calcutta High Court which has exhaustively considered the issue andthe decision is reported in Sm. Sipra Dey v. Ajit Kumar Dey[2]. In thesaid case, the Court has given the rationale for the change that wasCbrought about in the provisions of Section 29(3) in the Limitation Act,1963.

The Legislature wished to extend the protection from theLimitation Act, as it were, in regard to the word ‘proceedings’ inmatrimonial matters to persons other than those who were covered byDthe provisions of section 29(3) in the Limitation Act, 1908. Protectionunder Section 29(3) of the 1908 Act was available to those who aregoverned by the Indian Divorce Act. The rationale appears to be that bythe very nature, matrimonial matters like Restitution of Conjugal Rights,Divorce, Guardianship, are matters for which it may not be appropriateEto fix period of limitation. It would not be in the interest of justice quathe parties and, therefore, not in the interest of society. It is this principlewhich was extended to cases, as for instance, to proceedings under theSpecial Marriage Act, where parties were governed by the SpecialMarriage Act, and the Parsi Marriage Act and any other law whichrelated to matrimonial matters. But when it comes to providing for anFappeal 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 aperiod of limitation is fixed within which the verdict of the Court at thebottom of the judicial hierarchy is called in question. There must becertainty and certainty in point of time and it is viewed in this regard, thatGwe must understand the meaning of the word “proceeding” in Section29(3).

21. We have no difficulty in contemplating that shorn of the contextprovided in Section 29(3), and placed in different setting, the word

H2 AIR 1988 Calcutta 28

“proceeding” may embrace an appeal. However, in the context of Section29(3) and having regard to the history of the legislation, it is quite clearthat the intent of the legislature was to take in proceedings before theoriginal court by way of petition as are contemplated in various provisionsof the Hindu Marriage Act as for instance. Further we would notice thatas 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 inSection 29 itself, which is at the center of the controversy before us,Section 29(2) on the one hand, expressly uses the word ‘appeal’, whereaswhen it comes to Section 29(3), the legislature has carefully chosen theword ‘proceedings’. Going by the company, the word “proceedings”keeps, namely suit, it in no uncertain terms indicates that what thelegislature had in mind was original proceedings and not appellateproceedings. In fact, learned Single Judge of the Kerala High Courthad dealt with this issue in the judgment reported in Kuttimalu v.Subramonian[3] and his views on similar lines, stands approved by thefull Bench of Kerala High Court in Kunnarath Yesoda v. ManathanathNarayanan[4]. It is relevant to notice the following paragraphs from thejudgment of the full Bench of the Kerala High Court:

“16. The second contention relates to the meaning of theexpression “other proceeding” in Section 29(3) of the LimitationAct. As has been rightly held in Kuttimalu v. Subramonian 1981Ker LT 602 : (AIR 1981 NOC 221) following Chander Dev v.Rani Bala, AIR 1979 Delhi 22, the statutory bar under Section29(3) is limited to suits and other proceedings both of which areoriginal in nature and not to appeals which belong to distinct andseparate category. We are in entire agreement with the reasoningand conclusion of Balagangadharan Nair, J. in 1981 Ker LT 602 :(AIR 1981 NOC 221).

17. The contention therefore that the appeal under the HinduMarriage Act against decree for divorce should be filed within30 days of the date of the decree, whether certified copy hasbeen obtained or not and even if the appellate Court closes afterthe decree has been passed or order has been made and remainso closed for over 30 days therefrom cannot be accepted. Section

3 1981 KLT 602

4 AIR 1985 Ker 220

A15 of the Hindu Marriage Act only declares that it shall be lawfulfor either party to the marriage to marry again under certaincircumstances. From this it does not follow that right to remarryenures automatically after the expiry of 30 days from the date ofthe decree of divorce. If an appeal is presented, one will have towait till it is dismissed. If there is right of appeal, the time forBfiling the appeal should have expired without the appeal beingfiled, taking into consideration the time required for obtaining thecertified copy. The period for filing the appeal does not expire ifonce the delay in filing the appeal is condoned. The computationof time under Section 10 of the General Clauses Act, 1897 whenCthe court or office is closed also extends the time beyond 30 days.Thus Section 15, on its face, indicates that it is not the legislativeintention that right to remarry arises exactly after 30 days of thedecree of divorce.

18. Reliance was placed on Section 23(4) of the Hindu MarriageDAct which provides: —

“In every case where marriage is dissolved by decree ofdivorce the court passing the decree shall give copy thereoffree of cost to each of the parties”.

The contention was advanced that an applicant was entitled to aEcopy free of cost and therefore the time taken to obtain certifiedcopy cannot be excluded. Our attention was also drawn to Section363(1) of the Criminal Procedure Code under which : —

“When the accused is sentenced to imprisonment, copy of thejudgment shall, immediately after the pronouncement of theFjudgment, be given to him free of cost”.

Section 15 of the Hindu Marriage Act only enables the applicantto obtain copy free of cost; but does not statutorily prescribe thetime during which the copy has to be delivered. Section 23(4)does not advance the contention of the appellant that the timeGrequired to obtain the certified copy cannot be excluded.”

22. Taking up the contents of paragraph 18 above, we find that itis again circumstance which sufficiently deals with the argument ofShri K.S. Mahadevan, learned counsel for the appellant, that certifiedcopy may not be necessary. As noticed by the High Court, free copyHmay be supplied as per the requirement under the Family Courts Act but

that is far cry from holding that an appeal can be carried without acertified copy. In this regard, we are again fortified by Rule which hasbeen made under Section 21 of the Family Court Act. The Madras HighCourt has framed Rule 52 of the Family Courts (Procedure) Rules, 1996which reads as follows:

“Copy of judgment or order to be filed with appeal- Every appealunder section19(1) of the Act shall be accompanied by copycertified to be true copy by the court which passed the Judgment.”

23. This plainly would suffice to repel the contention of the appellantthat an appeal can be maintained within thirty days even if it is in theabsence of certified copy. Coming further to the arguments of thelearned counsel for the appellant that Section 19 overrides the provisionsof the Code of Civil Procedure and there may not be any need to have acertified copy of the judgment, we find this argument to be clearlyuntenable having regard to Rule 52 made by the Madras High Courtunder the said Section 21 of the very Act namely, the Family Courts Act.The non-obstante clause in Section 19 actually has different purportand scope and it was not meant to sweep away all requirements asexisted in law for maintaining an appeal.

24. Equally, without substance is the contention of the appellantbased on Section 19(3) of the Act. It constituted special law within themeaning of Section 29(2) of the Limitation Act. It must be noticed thatthe Family Courts Act itself was based on the overwhelming realizationthat specialized institution which must resort increasingly to efforts ofreconciliation between the parties be established. It must be noticed thateven with the promulgation of the Act, unless Family Court is established,the Courts which were earlier dealing with the provisions would continueto have jurisdiction. With the establishment of Family Court and thejurisdiction it was to exercise under Section 7 of the Act, this Court is ofthe view that the Family Courts Act must be read along with the cognateenactments. In other words, the Family Courts Act is not standaloneAct. It draws sustenance from Acts like the Hindu Marriage Act. Thisis for the reason that petition within the meaning, for instance, of theHindu Marriage Act, after Family Court is established in India, is to bedealt with by the Family Court, on the grounds as provided under theHindu Marriage Act. In fact, mere perusal of Section 7 of the FamilyCourts Act would show that it speaks about suits and proceedings.Therefore, reading Section 7 of the Family Courts Act with Section 29

Aof the Limitation Act, also fortifies us in our finding that the word‘proceedings’ within the meaning of Section 29(3) is to be confined tothe original proceedings.

25. We also do not find any merit in the contention based on Section20. Section 20 gives overriding effect to the Family Courts Act,Bnotwithstanding anything which is inconsistent with any other Act. It istrue that it is intended to have an overwhelming sway even in the teethof other provisions. But in order to apply Section 20, and to rule outSection 12 of the Limitation Act, the appellant must succeed in the firstplace in eliminating the application of Section 29(2) of the LimitationAct. Once Section 29(2) applies, the Family Courts Act would be aCspecial enactment providing for special period of limitation ascontemplated in Section 19 but bringing in its train, the provisions ofSections 4 to 24 of the Limitation Act. Section 12 of the Limitation Act islegitimately available to prospective appellant. It is also conducive tothe interest of justice. In fact, it is incomprehensible how on one hand,Dthe law commands through Rule 52 of the Rules that certified copymust accompany an appeal, and yet decision declaring the marriagedissolved could hold litigant to ransom, when she has no right to file anappeal without certified copy, and yet successful party before theoriginal court is left free to remarry before the period runs out under theLimitation Act.E

26. There is thus nothing inconsistent in Section 12 read withSection 29(2) of the Limitation Act with Section 19 of the Family CourtsAct.

Therefore, we find that there is no merit at all in the contention ofFthe appellant that the provisions of Section 20 will override the provisionsof Section 12 of the Limitation Act thereby rendering the appeal filed bythe respondent beyond time.

27. The further argument addressed by the learned counsel forthe appellant, Shri K.S.Mahadevan, that the respondent filed an appealGon 09.09.2004 and therefore it was not an appeal which was presentedwithin the meaning of Section 15 of the Hindu Marriage Act, is withoutany 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 time limit on the rightof the unsuccessful party to challenge proceeding by which the marriageHhas been declared dissolved. In Lata Kamat (supra), we notice that this

Court has clarified that though Section 15 uses the word “dissolved”, ithas been interpreted to also apply to cases where the marriage ispronounced null and void keeping in view the interests of justice. Thus,the intention of the Legislature was to give effect to the decree fordissolution, if the unsuccessful party does not move the appellate courtwithin time. The argument of the learned counsel for the appellant thatnot only must the appellant file the appeal, or prefer the appeal or presentthe appeal, but he must also ensure that the appeal comes on the judicialside of the High Court is clearly without any basis. Therefore, we findthat the appeal on being filed on 09.09.2004 must be treated as havingbeen presented within the meaning of Section 15 of the Act. The upshotof the discussion is that the appellant has not made out case to overturnthe findings on merits. Equally, as the appellant failed in persuading us tohold that the appeal was not filed within the period stipulated in Section19 of the Family Courts Act or that the appeal was not presented duringthe period of Section 15 within time, the second marriage which is reliedupon by the appellant clearly took place in contravention of mandate ofSection 15 of the Hindu Marriage Act and we have no hesitation inholding that the High Court was entirely right in its findings.28. The question lingers, unfortunately, however, as to whetherthis should be the end of the enquiry by this Court in the facts of thiscase. The parties have beyond dispute been living separately since18.01.2000, in other words, for more than 22 years. Should we restcontent with affirming the impugned judgment which we find beyondreproach? Should we hearken to the plea of the learned counsel for theappellant that declining to interfere with the judgment should not lead toa situation where the parties will never be able to cohabitate as husbandand wife and what is more, third parties have made their appearance onthe scene in the form second wife and son born to her on 25.02.2004and yet the marriage remains intact. There is son born to the appellantfrom the second marriage which is contracted undoubtedly in violationof Section 15.

It is pointed out by learned counsel for the respondent that the sonwas born in the second marriage to the appellant even prior to thepronouncement of dissolution by the Family Court.

29. Article 142 of the Constitution undoubtedly clothes this Courtwith reservoir of power to pass orders as would reach complete justiceto the parties. What comes to mind is the concept of irretrievable

Abreakdown of marriage. Undoubtedly, though there have been reportsof the Law Commission in this regard recommending changes in thelaw, as of today the statute does not provide for irretrievable breakdownof marriage as ground. However, this Court has on number of occasionsexercised its power and granted dissolution of marriage on the ground ofirretrievable breakdown of marriage based on Article 142. In this regard,Blearned counsel for respondent pointed out that this is not case forexercising power under Article 142. He addressed this submission,reminding us of the conduct of the appellant throughout. He would submitthat the respondent is completely without blame. She was always readyand willing. The findings as found by the High Court being confirmed, noCoccasion arises for this Court to exercise power under Article 142. Werecord this submission for as prefatory remark to indicate that this isnot case where both parties are agreeable for dissolution by way ofirretrievable breakdown of marriage. But that then leads us to the questionas to whether the consent of the parties is necessary to order dissolutionof marriage on the ground of irretrievable breakdown. This again, is notDres integra. We may notice that this Court has in catena of decisionsdiscussed this very aspect. The judgment reported in R. Srinivas Kumarv. R. Shametha[5]reads as under:

“7. Now so far as submission on behalf of the respondent wifethat unless there is consent by both the parties, even in exerciseEof powers under Article 142 of the Constitution of India themarriage cannot be dissolved on the ground of irretrievablebreakdown of marriage is concerned, the aforesaid has nosubstance. If both the parties to the marriage agree for separationpermanently and/or consent for divorce, in that case, certainlyFboth the parties can move the competent court for decree ofdivorce by mutual consent. Only in case where one of the partiesdo not agree and give consent, only then the powers under Article142 of the Constitution of India are required to be invoked to dosubstantial justice between the parties, considering the facts andcircumstances of the case. However, at the same time, the interestGof the wife is also required to be protected financially so that shemay not have to suffer financially in future and she may not haveto depend upon others.”

N. RAJENDRAN v. S. VALLI

[K. M. JOSEPH, J.]

30. We may also notice the judgment of this Court reported inMunish Kakkar v. Nidhi Kakkar[6] which reads as under:

“18. No doubt there is no consent of the respondent. But there isalso, in real terms, no willingness of the parties, including of therespondent to live together. There are only bitter memories andangst against each other. This angst has got extended in the caseof the respondent to somehow not permit the appellant to get adecree of divorce and “live his life”, forgetting that both partieswould be able to live their lives in better manner, separately, asboth parties suffer from an obsession with legal proceedings, asreflected from the submissions before us.”

31. We may also notice the judgment of this Court reported inSivasankaran v. Santhimeenal[7] which reads as under:

“19. We are, thus, faced with marriage which never took offrom the first day. The marriage was never consummated andthe parties have been living separately from the date of marriagefor almost 20 years. The appellant remarried after 6 years of themarriage, 5 years of which were spent in Trial Court proceedings.The marriage took place soon after the decree of divorce wasgranted. All mediation efforts have failed.

20. In view of the legal position which we have referred toaforesaid, these continuing acts of the respondent would amountto cruelty even if the same had not arisen as cause prior to theinstitution of the petition, as was found by the Trial Court. Thisconduct shows disintegration of marital unity and thus disintegrationof the marriage. In fact, there was no initial integration itself whichwould allow disintegration afterwards. The fact that there havebeen continued allegations and litigative proceedings and that canamount to cruelty is an aspect taken note of by this court. Themarriage having not taken of from its inception and 5 years havingbeen spent in the Trial Court, it is difficult to accept that the marriagesoon after the decree of divorce, within 6 days, albeit 6 yearsafter the initial inception of marriage, amounts to conduct whichcan be held against the appellant.

6 (2020) 14 SCC 657

7 2021 SCC Online SC 702

A21. In the conspectus of all the aforesaid facts, this is one casewhere both the ground of irretrievable breakdown of marriageand the ground of cruelty on account of subsequent facts wouldfavour the grant of decree of divorce in favour of the appellant.

22. We are, thus, of the view that decree of divorce dissolvingBthe marriage between the parties be passed not only in exerciseof powers under Article 142 of the Constitution of India on accountof irretrievable breakdown of marriage, but also on account ofcruelty under Section 13(1)(i-a) of the Act in light of the subsequentconduct of the respondent during the pendency of judicialproceedings at various stages.”C32. Having found that consent of the parties is not necessary todeclare marriage dissolved, we cannot be unmindful of the facts asthey exist in reality. There has been marriage which took place on31.10.2004. There is child born in the said marriage. No doubt being incontravention of Section 15, it becomes fait accompli but at the sameDtime we do not reasonably perceive any possibility of the appellant andthe respondent cohabiting as husband and wife. Whatever life was therein the marriage has been snuffed out by the passage of time, theappearance of new parties and vanishing of any bond between the parties.Not even the slightest possibility of rapprochement between the appellantEand the respondent exists for reasons though which are entirely due tothe actions of the appellant and for which the respondent cannot beblamed. The marriage between the appellant and the respondent hasbecome dead. It can be described as point of no return. There is nopossibility of the appellant and the respondent stitching together any kindof reasonable relationship as the tie between the parties has brokenFbeyond repair and having regard to the facts of this case, we wouldthink that it would be in the interest of justice and to do complete justiceto the parties that we should pass an order dissolving the marriagebetween the appellant and the respondent.

33. We make it clear that this decision of ours is not based on ourGapproval of the conduct of the appellant nor is it based on sitting injudgment over the conduct of the respondent. In other words, we findthat respondent is blameless in the matter but the facts as they haveunfolded and the developments which have taken place, render itunavoidable for us to consider dissolution of marriage as the best courseHopen in the interest of justice.

34. Accordingly, while we affirm the judgment of the High CourtAand refuse to grant decree of dissolution on the ground of cruelty bythe respondent, we in exercise of our power under Article 142 of theConstitution declare the marriage between the appellant and therespondent as dissolved. This will be on condition that the appellant willpay sum of Rs.20,000,00/- (Rupees twenty lakhs) to the respondent byBway of demand draft within period of eight weeks from today. Wefurther make it clear that this will be without prejudice to all the rightsavailable to the son who was born in the marriage between the appellantand the respondent under law in regard to property rights. Till the amountis paid as aforesaid, the appellant will continue to be liable to pay Rs.7000/- per month to the respondent.C

35. The appeal is disposed of as above.

Ankit Gyan and Amarendra Kumar(Assisted by : Iram Jan, LCRA)

Appeal disposed of.