In the present appeals the question is whether the time for filing them had expired by 18th August, 1980, when the husband re-married. If the appeals are in time, by re-marriage of the husband these cannot become anfractuous .There is no doubt that a decree of divorce breaks the marital ties but during the pendency of the appeal against the decree or during the time it can be preferred the parties are not competent to contract another marriage, their incapacity to do so is absolute. Their Lordships in the above-cited case have held so in so many words. Reliance by Mr. Bedi on the above case, Therefore, is misplaced. The further contention that as a copy of the decree dissolving the marriage is to be provided free of cost to the parties, Therefore, time spent in obtaining its certified copy is not to be excluded has also no force.
(12) This question is well-settled. It was decided by the Judicial Committee of' the Privy Council as far back as in the year 1928, that the provisions of section 12(2) of the Limitation Act would apply even though a copy of the decree was not required to be filed along with the memorandum of appeal. It was held in that case Jittbhoy N. Surty v. T.S. Chettyar (firm), Air 1928 Privy Council 103) that the time requisite for obtaining the copies of the judgment and decree has to be excluded for from computation. In Shri Chander Dev Chadha v. Smt. Rani Bala (Supra), a Divisional Bench of 'this Court has held that section 12(2) of the Limitation Act, 1963, applies to appeals under Hindu Marriage Act, and, Therefore, the time requisite for obtaining a copy of the decree or order appealed from is to be excluded in computing the period of limitation.
Delhi High Court
Suresh Bala vs G.M.S. Bala on 21 September, 1982
Equivalent citations: AIR 1983 Delhi 230, 1983 (4) DRJ 53
(1) These two appeals have been filed by Smt. Suresh Bala challenging the decree of dissolution of marriage passed on 11th July, 1980, under section 13(i)(ib) ofthe Hindu Marriage Act (herein called 'the Act') in favor of her husband Major Gurmohinder Singh Bala. The finding that it was the appellant who had deserted her husband by leaving her matrimonial home on 5th January, 1973, and thereafter continued to live separately for a period of over two years immediately proceeding the filing of the petition by her husband, is sought to be reversed.
(2) In the cross-objections filed by the husband the plea raised is that the appeals have become infructuous because of the husband's re-marriage and that in any case he was entitled to a decree under section 13(1)(a) on the ground of cruelty as well.
(3) Before proceeding further it may be noted that the husband filed two separate petitions, first under section 10 of the Act on 20th September, 1973, seeking judicial separation on the ground that his wife had treated him with cruelty, the second petition was filed on 17th August, 1977, seeking divorce under section 13(1)(a) of the Act on the ground of desertion. After the Marriage Laws (Amendment) Act, the petition was got amended on 19th September, 1976, for a decree of divorce under section 13(1)(a) of the Act on the ground of cruelty. On joint submission of the partics these petitions were consolidated for trial and were disposed of by the impugned judgment. The ground of cruelty alleged by (4) Before noticing the contentions of the parties, it appropriate to deal with the preliminary objection taken by Mr. F.Gedi, learned counsel for the husband-respondent that the appeals have become infructuous.
(5) The plea is that after passing of the decree of dissolution of marriage on llthJuly, 1980, the husband got married on 18th August, 1980. That marriage is valid and lawful. Therefore, the appeals filed subsequently have become infructuous. Mr. Bedi's contention is that the appeals ought to have been preferred within thirty days from the date of decree as per subsection (4) of section 27 of the Act. The appellant-wife was not required under law to apply for a certified copy of the decree to enable her to file the appeal as she was entitled to get an attached copy of the decree free of cost from the Court the day it was passed in accordance with the provision of subsection (4) of section 23 of the Act. If she did 'so it was at her own risk. According to Mr. Bedi even before the passing of the Marriage Laws (Amendment) Act, 1976, a marriage by a divorced party within the waiting period of one year was not void; therefore after the deletion of proviso to section 15 of the Act (which provided for that period) a marriage by a divorced party after thirty days of the date of co-decree, as in the present case is lawful. In support of the argument that a marriage performed by a divorced party within the waiting period is not void, reliance is placed on Lila Gupta v. Laxmi Narain and others, .
(6) To my mind the objection in other words is that appeals have not been preferred within time. It is the case of the respondent that in view of the fact that he got an attested copy of the decree from the Court free of cost, the wife must have got it or in any case was entitled to get it. But she did not file appeal within thirty days. After making enquiries from the counter of the Registry that appeal had not been filed challenging the decree within the period prescribed, he got married on 18th August, at Jullundur Cantonment.
(7) It is urged that after the amendment of the Act, it is incumbent on a divorced party to file the memorandum of appeal within thirty days accompanied by a copy of decree which copy is to be provided free of cost by the Court. What is the purpose of laying down thirty days period for filing of the appeals, for provision of a free of cost copy of the decree to the parties, and for the deletion of the period of waiting before a divorced party could marry again, is the question posed by Mr. Bedi. The answer according to him is that these provisions were introduced by amendment in order to expedite not only the disposal of appeal against the decree but to enable the parties to marry immediately after thirty days of passing of the decree.
(8) The submission, therefore, is that it be held that the time spent by the appellant for obtaining certified copies of the decree and judgment is not to be excluded in computing the period of limitation for illing these appeals. When confronted wiih the case law that section 12(2) of the Limitation Act, 1963, applies to appeals under the Hindu Marriage Act and therefore time spent for obtaining a copy of the decree is to be excluded from computing the period of limitation(Shri Chander Dev Chaudhry v. Smt Rani Bala), 1978 2nd (2) Delhi 331) Mr. Bedi urged that in view of the decision of the Supreme Court in Lila Gupta's case (supra) the judgment of this Court was no longer good law.
(9) Let me therefore, advert to that judgment of the Supreme Court. The facts were that a decree of divorce was granted on 8th April, 1963, dissolving Rajinder Kumar's marriage with Saria Gupta. Soon thereafter RajinderKumar married one Lila Gupta on 25th May, 1963. However, he expired on 7th May, 1965. Disputes arose between Lila Gupta and relatiolions of Rajinder Kumar in respect of property left by him. The case of the relations was that as Rajinder Kumar had contracted the marriage with Lila Gupta within one year of the date of the decree in contravention of the proviso to section 15 of the Act, the marriage was void. Therefore, Lila Gupta could not be considered a widow of Rajinder Kumar. The question before the Supreme Court was : Whether a marriage contracted in contravention of or in violation of the proviso to section 15 of the Act is void or merely invalid not affecting the core of marriage ? Allowing the appeals it was held that such marriage solemnised in contravention of the said proviso was not a nullity. The factum of completely dropping the proviso by the amendment of the Act was considered by their Lordships to reinforce their finding that such marriage was not void. On this aspect it was observed : "THEnet result is that now since the amendment parties whose marriage is dissolved by a decree of divorce can contract marriage soon thereafter provided of course the period of appeal has expired" .
(10) This judgment deals with the validity of marriage contracted within the waiting period in contravention of proviso to section 15 and not with the validity of marriage contracted in violation of substantive part of section 15 of the Act.
(11) In the present appeals the question is whether the time for filing them had expired by 18th August, 1980, when the husband re-married. If the appeals are in time, by re-marriage of the husband these cannot become iufructuous. There is no doubt that a decree of divorce breaks the marital ties but during the pendency of the appeal against the decree or during the time it can be preferred the parties are not competent to contract another marriage, their incapacity to do so is absolute. Their Lordships in the above-cited case have held so in so many words. Reliance by Mr. Bedi on the above case, therefore, is misplaced. The further contention that as a copy of the decree dissolving the marriage is to be provided free of cost to the parties, therefore, time spent in obtaining its certified copy is not to be excluded has also no force.
(12) This question is well-settled. It was decided by the Judicial Committee of' the Privy Council as far back as in the year 1928, that the provisions of section 12(2) of the Limitation Act would apply even though a copy of the decree was not required to be filed along with the memorandum of appeal. It was held in that case Jittbhoy N. Surty v. T.S. Chettyar (firm), Air 1928 Privy Council 103) that the time requisite for obtaining the copies of the judgment and decree has to be excluded for from computation. In Shri Chander Dev Chadha v. Smt. Rani Bala (Supra), a Divisional Bench of 'this Court has held that section 12(2) of the Limitation Act, 1963, applies to appeals under Hindu Marriage Act, and, therefore, the time requisite for obtaining a copy of the decree or order appealed from is to be excluded in computing the period of limitation.
(13) There is no controversy that if the time spent by the appellant in obtaining the certified copy of the judgment and the decree if excluded, then these appeals filed on 5th September, 1980 are within time. Therefore, there is no merit in the preliminary objection. The appeals are maintainable.
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