A divorcee can remarry if no appeal is filed
Divorced Hindu spouses, on getting a decree of divorce, can remarry:
- if the parties have no right to appeal as in the case of mutual consent divorce
- if the time for right of appeal has expired without the parties filing an appeal or
- if the court dismissed the appeal filed before it (Section 15 of the Hindu Marriage Act 1955 (HMA)
Therefore a divorce decree holder, who is eager to marry another person as soon as possible, needs to know when the period for filing ends. One law says its 30 days but another law says it is 90 days. The Supreme Court in 2002 and many High Courts in later years directed the government of India to bring an end to this confusion but nothing has happened.
HMA provides 90 days whereas FCA 30 days for appeal
The Section 28 (4) of the HMA amended in 2003 provides 90 days for filing appeal against a divorce decree. The provision is in conflict with Section 19 (3) of the Family Court Act (FCA) which provides only 30 days for filing appeal. There exists a conflict as to whether the limitation period for appeal is 90 days or 30 days.
But some courts hold that it would be better to consider 90 days as the right one. The reason is that the period of 30 days existing in the HMA was replaced with 90 days in Section 28(4) of the HMA in the year 2003 much after the enactment of the FCA in 1984.
The period of limitation for filing an appeal starts running only from the day on which the order was issued or made. The time during which the defendant has been absent from India will be excluded (Section 15 of the Limitation Act). No other delay on the part of the intending parties will be excluded from the stipulated limitation period.
In short, if the defendant does not file an appeal within the period of limitation the divorce decree will become final and the divorce decree holder can remarry any other person.
Allahabad High Court decision
The Allahabad High Court in Smt. Gunjan v Praveen delivered on 8th February, 2017 States that the decree of divorce or any other decree passed under the HMA by the Family Court is appealable under Section 28 of the HMA read with Section 19 of the FCA.
The court says that the provisions regarding filing of appeal contained in Section 19 of the FCA are procedural in nature and the procedural law is always subservient to the substantive law. The provisions of the HMA are substantive in nature whereas those under the FCA providing for appeal are procedural. Therefore, the period of limitation, as provided under the substantive law for filing the appeal, would prevail over the period of limitation prescribed in the procedural law.
Relying on a full bench decision of the Bombay High Court the Allahabad High Court comes to the conclusion that limitation for filing appeal against the decree of divorce or any other decree passed under the Act, 1955 is 90 days, as provided in Section 28(4) of the HMA and not 30 days, as it appears in Section 19(3) of the FCA.
What the Bombay High Court says
A Full Bench of Bombay High Court in Shri Shivram Dodanna Shetty v Sou. Sharmila Shivram Shetty held that in appeals filed under Section 19(1) of the FCA the period of limitation prescribed under sub-section (4) of Section 28 of HMA shall apply. The case was a Family Court Appeal.
The Bombay High Court states that as the HMA was amended by Parliament in the year 2003, in that sense, the period of limitation of 90 days was prescribed by a later law which would override the provisions relating to period of limitation prescribed in FCA enacted in 1984.
What the Supreme Court says
In Savitri Pandey v Prem Chandra Pandey delivered on 8 January, 2002 case what the Supreme Court states is that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard and the court directed the Registry to forward copy of this judgment to the Ministry of Law & Justice for appropriate action.
What High Court of Kerala says?
The High court of Kerala, in its interim order in Vineesh v Shiji Mukundan, says since the Section 28 (4) of the HMA was enacted in 2003, much later in point of time compared to the enactment of FCA in 1984, and as it is a special enactment, the Section 28(4) of HMA prevails over the Section 19(3) of FCA. The court relied on Viswanathan P K v Sindhu M K (2009 (4) KHC 307).
That means, the limitation period for filing an appeal is 90 days period after the judgement.
Conclusion
To sum up, it is better to hold that the period of limitation of 90 days provided under Section 28 (4) of the HMA will prevail over the period of 30 days provided under Section 19(3) of the FCA.
It is true that a conflict, which needs to be resolved by an amendment, still exists.
Additional reading
- Gunjan v Praveen https://indiankanoon.org/doc/6646775/
- Shri Shivram Dodanna Shetty v Sharmila Shivram Shetty https://indiankanoon.org/doc/70905829/
- Savitri Pandey v Prem Chandra Pandey https://indiankanoon.org/doc/325522/
- The Family Court Act, 1984 https://legislative.gov.in/sites/default/files/A1984-66_0.pdf
- The Limitation Act https://www.indiacode.nic.in/bitstream/123456789/1565/1/A1963__36.pdf
- The Hindu Marriage Act, 1955 https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
