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Smt. Lata Kamat vs Vilas on 29 March, 1989
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ACT: Hindu Marriage Act 1956: Sections 11, 12, 13 a nd 28---Decree of nullity and decree of divorce--Distincti on between--Marriage declared nullity--Wife fili ng appeal--Husband marrying after trial Court decree but befo re the filing of the appeal--Appeal whether rendered infruct u- ous Indian Limitation Act 1963: Sections 4, 24 a nd 29--Applicability of provisions of Act to an appeal und er section 28 Hindu Marriage Act 1956--Time required for o b- taining copies of judgment to be excluded.

tenable and had been rendered infructuous because he h ad re-married before the filing of the appeal. The Appella te Court allowed the preliminary objection and dismissed t he appeal, and the High Court dismissed the second appeal. Before this Court it was contended on behalf of t he appellant that (i) the word 'divorce' has been used in section 15 in a broader sense and, in view of the langua ge used in that section, it is not possible to distingui sh between a decree of nullity under section 11 or 12 a nd decree of divorce under section 13; (ii) the interpretati on put by the lower courts, on the basis of judgments of so me of the High Courts, that section 15 will not apply to a decree under section 12 but would only apply when there is a decree under section 13, does not appear to be correct as the scope and language of section 15 coupled with the la n- guage of section 28, had not been considered by any one of these courts; and (iii) even if it is held that section 15 applies to a decree under section 12, the respondent

provisions of the Limitation Act will not apply in vi ew of the section 29(3) of that Act, and therefore the period 138 for obtaining copies of the judgment excluded under secti on 12 clause will not be available to the appellant. Allowing the appeal, it was, HELD: (1) It is no doubt true that section 12 and se c- tion 13 have different phraseology. In section 12 it is sa id that the "marriage may be annulled by a decree of nullit y" whereas in section 13, the phraseology used is "dissolved by a decree of divorce". Though in substance the meaning of t he two may be different under the circumstances and on t he facts of each case, but the legal meaning or the effect, is that by intervention of the court the relationship betwe en two spouses has been severed either in accordance with t he provisions of section 12 or in accordance with the prov i- sions of section 13. Probably it is because of this reas on that the phrase 'decree of nullity' and 'decree of divorc e' have not been defined. [143A-B] (2) Under the provisions of section 28 all decrees

could only be a limited right subject to the desire of the other party. [144H; 145A-B] (4) The Legislature in its wisdom had enacted section 28 conferring a right of appeal which is unqualified, unr e- strictive and not depending on the mercy or desire of a party against all decrees in any proceeding under the Ac t. Hence, the only interpretation which could be put on t he language of section 15 should be that which will be consis t- ent with section 28. Therefore, the phrase 'marriage h as been dissolved 139 by a decree of divorce' in section 15 will only mean whe re the relationship of marriage has been brought to an end by the process of court by a decree, which will include a decree under section 11, 12 or 13. The view taken by t he courts below is accordingly not sustainable. [145C-D; 147F ] Chandra Mohini Srivastava v. Avinash Prasad Srivastava