Hindu Marriage Act, 1955 – ss.13(1)(ia), 15 – Family Courts Act, 1984 – ss. 19, 20 – Limitation Act, 1963 – s. 29 – Cruelty – Irretrievable breakdown of marriage – Dissolution of Marriage – Case of appellant that respondent left appellant and returned to her parental home – Divorce petition by appellant on ground of cruelty – Family Court allowed divorce petition – Respondent filed appeal under section 19 of the Family Courts Act, 1984 before the High Court – Appellant contended that the time for filing an appeal had expired and so he had re-remarried on the strength of the decree of dissolution of marriage – Respondent later filed a petition seeking restitution of conjugal rights u/s. 9 of the Hindu Marriage Act, which was still pending – High Court reversed the decree of dissolution of the marriage between the appellant and the respondent holding there was no cruelty – On appeal, held: Appellant failed in persuading Court to hold that the appeal was not filed within the period stipulated u/s. 19 of the Family Courts Act – The second marriage of the appellant took place in contravention of mandate of s.15 of the Hindu Marriage Act – High Court was right in its finding – There was no cruelty – No possibility of rapproachement between appellant and respondent – Marriage between appellant and respondent is dead – In exercise of power u/Art. 142 of the Constitution, marriage between appellant and respondent declared as dissolved.
Disposing of the appeal, the Court
HELD: 1. On perusal of rule 52 of the Family Courts (Procedure) Rules, 1996. It 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 overrides the provisions of the Code of Civil Procedure and there may not be any need to have a certified copy of the judgment, this Court finds 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. [Para 23][515-C-D]
2. 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 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. [Para 24][515-E-H; 516-A]
3. This court also does not find any merit in the contention based on Section 20. Section 20 gives overriding effect to the Family Courts Act, notwithstanding anythingwhich 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. [Para 25][516-B-E]
4. 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, 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. [Para 26][516-E-F]
5. 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 33 contravention of mandate of Section 15 of the Hindu Marriage Act and this Court has no hesitation in holding that the High Court was entirely right in its findings. [Para 27][517-B-D]
6. 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 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, this court would think that it would be in the interest of justice and to do complete justice to the parties that this Court should pass an order dissolving the marriage between the appellant and the respondent. [Para 32][520-D-G]
Lata Kamat v. Vilas (1989) 2 SCC 613 : [1989] 2 SCR 137; R. Srinivas Kumar v. R. Shametha (2019) 9 SCC
409 : [2019] 12 SCR 873; Munish Kakkar v. Nidhi Kakkar (2020) 14 SCC 657 : [2019] 15 SCR 169;
Sivasankaran v. Santhimeenal (2021) SCC Online SC
702 - 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 Dey v. Ajit Kumar Dey AIR 1988 Cal 28; Kuttimalu v. Subramonian (1981) KLT 602; Kunnarath Yesoda v. Manathanath Narayanan AIR 1985 Ker 220; Chander Dev v. Rani Bala AIR 1979 Delhi 22 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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