‘Excuse of the delay or not’ in allowing an appeal to ‘challenge decree of divorce by a losing spouse’ under Sec. 28 (1) of the Hindu Marriage Act, 1955[1] read with The Limitation Act, 1963 in divorce proceedings when ‘successful spouse celebrated second marriage’[2] after ‘expiry of period of limitation for filing of an appeal’[3] is the main focus of this article.
The author, with great respect to the Honorable Lord Justices of different High Courts who delivered their decisions, wish to discuss them.
In Sabitri Senapati [4] after obtaining decree of divorce from the Family Court on 12.7.1999, respondent-husband had his second marriage on 14.9.1999.
This is what Lord Justices A. Patnaik and P. Misra said while dismissing wife’s appeal.
“Thus, the appellant appears to have filed the appeal for enhancement of the amount granted towards permanent alimony and not for setting aside the decree of divorce and at this stage to allow the appellant to urge that the dissolution of marriage by a decree of divorce should be set aside by this Court would cause substantial prejudice not only to the respondent No. 2 but also Shantilata Sahu whom the respondent No. 2 has married on 14.9.1999 after the expiry of the period of limitation for filing an appeal against the decree of divorce as permitted by Section 15 of the Hindu Marriage Act as amended in 1976. We are, therefore, not inclined to consider the submission made by Mr. Sinha, learned counsel for the appellant that the dissolution of the marriage by the impugned decree of divorce was not in accord with the provisions of Section 13(1)(i) of the Hindu Marriage Act.”[5]
It is clear from the above para. that Lord Justices have delivered the decision not only on technical reason since the prayer was for enhancement of alimony alone but also on a ‘principle of law’ that since ‘the appeal was filed beyond the period of limitation when second marriage was already over’ with a child born to them to render the appeal as of no use.[6]
Even when ‘ex parte decree of divorce already passed in favour husband (or wife, as the case may be)’ Lord Justice P.C. Jain, inSurendra Kumar v. Kiran Devi[7] and Lord Justice G.K. Sarma’s ruling in Harjeet Singh V. Guddi[8] Lord Justice R.S. Kejriwal in Rajendra Prasad Yadav vs Prem Lata[9] are not prepared to set aside the decree ‘when second marriage took place after the expiry of period of limitation’ for filing of an appeal by the opposite spouse thereby the appeals have become in fructuous.
Then in Dr Lokeshwari v. Dr. Srinivasa Rao,[10] Lord Justice Dr.Motilal B. Naik of Andhra Pradesh High Court ‘dismissed’ wife’s appeal as ‘in fructuous’ on the most important reason that ‘husband, after obtaining divorce 18-9-1995 from Lower Court already had a lawful second marriage on 24-4-96 by the time she had filed the appeal, albeit with a prayer for excusing the delay, which delay in fact was condoned, but she was too late in filing of her appeal on 22-3-1996, admitted only on 9-9-1996.
No doubt delay was excused but this following observation of Lord Justice Dr. Motilal Niakwas very significant.
“There is no excuse for a person if he/she fails to show urgency to pursue the matter. Life is short and things cannot be taken so casually. A party in whose favour a decree is granted must be planning to contract a second marriage. There is no illegality in such a desire. The reasonable time within which appeal is to be filed is provided in the provisions of the Act. The facts in this case disclose that the appellant has deliberately shown the address of the respondent to be at Kavali, though she is aware of the fact that the respondent is working in London. We are, therefore, of the view, such a party cannot be permitted to get away with such a design.”
‘Commenting on the indifference of the appellant in not filing the appeal within the time’ Lord Justice P.C. Jain, like Lord Justice Dr.Motilal B. Naik, ‘aptly quoted the observations of the Supreme Court’ in P Venkateswarlu v. Motor and General Traders[11]that ‘all the proceedings of the courts can and must take conscious cognizance of events and developments subsequent to the institution of proceedings provided the rules of fairness to both sides are scrupulously obeyed.’[12]
Now coming to the decisions in the opposite direction, in Vathsala V. N Manoharan, [13]Ms. Vathsala, on obtaining an ‘ex parte decree of nullity of her marriage’ with her husband on the reasons of his impotency, solemnized her second marriage.
She preferred the appeal[14]when her argument that ‘when she had already performed her second marriage, his application as well as the order setting aside the decree had become ‘in fructuous and cannot be entertained’ was rejected.
Lord Justice Veeraswamy, while dismissing her appeal, held that ‘when remedies are provided for the respondent to request the Court for setting aside the decree, she ‘cannot defeat those remedies’ because of her second marriage’ but has to wait for the disposal of the application.[15]
Then In 2013, Lord Justice L Narasimha Reddy in R Parvati v. R.V. Subramanyam[16] after referring to Lord Justice P.C. Jain’s decision but declining to follow it, excused the delay of 153 days in filing an appeal by R Parvati for challenging the decree of divorce’ already granted to husband in spite of husband’s second marriage on the reason that ‘she came to know about the ex parte decree passed on 9-6-2000 at Visakahpatnam, Andhra Pradesh State, only when her husband came to attend Court at Raipur, Chattisgarh State, where she was living because of disturbance with her husband, in connection with some criminal cases filed by her against husband.[17]
According to her ‘she was not served with notice about commencement of divorce proceedings in Vishakhapatnam so there was a delay of 153 days’ in coming to the High Court to challenge the rejection of her prayer for setting aside the ex parte decree of divorce.[18]
L. Narasimha Reddy is not prepared to ‘declare the appeal ‘as fructuous’ on the basis that second marriage of husband already took place earlier to the filing of the appeal.’
L. Narasimha Reddy examined Lord Justice P.C. Jain’s decision but declined to follow it.
Now In the following appeals ‘excusing delay has come up for decision’ in a different legal context and in different set of circumstances.
In Mohana Murari[19] the lower court in a common order on 29-6-1963 ‘dismissed’ husband’s petition under s. 9 of The HM Act[20] but wife’s request for annulment of her marriage under s.12 of The HM Act ‘was upheld’ on the reason of husband’s impotency.
Husband filed an appeal on 5-10-1963. Meanwhile ‘she had her second marriage on 2-7-1964.’
Lord Justices TP Naik and Shiv Dayal, after observing the ‘distinction between valid, void and voidable marriages’ and also on the ‘nature of decree of nullity and of divorce’, finally held that husband’s appeal cannot be maintained on ‘non applicability of Sec. 15 to such decree’ so that her second marriage was not disturbed but saved.
Lord Justices TP Naik and Shiv Dayal dismissed his appeal as it had become ‘in fructuous’ and serves no purpose at this stage since she had already had her second marriage.[21]
Lord Justices also declared ‘prohibitory order might have been obtained against her’ by appellant against the celebration of her second marriage.[22] This declaration may be highly debatable.[23]
On the strength of Division Bench ruling of Mohana Murari, Lord Justice Faizuddin held in Shakuntala[24] that wife’s appeal challenging of decree of divorce passed on 19-1-1981 had become ‘in fructuous’ when husband married again on 2-3-1982.
In Pramod Sharma v. Radha[25] first appeal challenging the ex-parte order passed on 6-3-1965 under Sec. 12 of the HM Actin favour of husband was dismissed on 1-8-1966 on the preliminary objection that a copy of decree was not annexed to the appeal but anyhow her appeal was admitted.
2nd marriage of husband took place sometime after dismissal.
Lord Justices Ajit Singh Bains and R.S. Narula, after observing that that ‘appellant cannot now revert back to his status as husband of respondent (even if his appeal fails) because his remarriage in law is neither void nor voiable but valid and irrevocable,’ held that ‘her appeal had become in fructous.’
But no doubt with the Supreme Court decision in Lata Kamat,[26] Mohana Murari, Shakuntala and
Pramod Sharma had a decent burial. But the fact that second marriage already took place after the expiry of period of limitation for filing of an appeal by opposite spouse is accepted as very important event in not excusing the delay in filing the appeal.
Finally, the author humbly submits that four Lord Justices, namely, A. Patnaik, P. Misra, Faizuddin came to their opinion ‘that since second marriage was already celebrated without any legal obstacle, allowing the appeal at this stage by excusing the delay does not serve any purpose thus protecting the second marriage.’ We can also keep Lord Justices G.K. Sarma, R.S. Kejriwal and P.C. Jain in this group.
But Lord Justice L Narasimha Reddy clearly moved in the opposite direction. Lord Justices Murthaza Fazl Ali and J.N. Bhat[27]may also be placed with Lord Justice L. Narasimha Reddy.
But it is not possible to place Lord Justices A. P Sen and J.S. Verma, M. Bhattacharjee and Ajit Kumar Naik in either of the two groups of Lord Justices when there is ‘no information whether second marriage took place or not’ in the reports of the two decisions.
The peculiarity of Lord Justice Motilal B. Naik’s[28]ruling was that ‘despite excusing the delay the appeal was dismissed on ‘unpardonable and inordinate delay’ in coming to the Appellant Court.’[29]
Lord Justices TP Naik Shiv Dayal, Ajit Singh Bains and R.S. Narula were clear that ‘the appeal had become ‘in fructuous’ on the reason that ‘second marriage already took place’ after obtaining the decree of nullity’ but also that Sec.15 of HM Act does not apply to ‘such decree’ but not on ‘the reason of delay in filing the Appeal’ (so there is no necessity to decide on the issue of excusing such delay or not) it is left to the readers whether these four Lord Justices may have joined in the group of Lord Justice A. Patnaik and others or in the opposite camp had it been a case of decree of divorce.[30]
Lord Justices R. Sethi and G. Singhvi[31] did not at all find it necessary ‘to speak on the issue of ‘excusing of delay’ when it is held that ‘second marriage of husband took place when wife’s appeal is pending.’
Then S.V. Suhasini Devi,[32] K. Yasoda,[33] Chander Dev Chada,[34]Suresh Bala,[35]Mrs. Debi Bhaduri,[36] referred and discussed in some of these appeals are ‘not relevant authorities on the main issue of excusing delay or not’ since all the Lord Justices in the above appeals have held that ‘when the time taken in obtaining the copy of the decree is excluded in computation of the period of limitation,’ the appeals are ‘deemed to have been filed within the period of limitation.’
Then the ‘most vital question being how can a divorcee, male or female, imagine or expect, unless God or clairvoyant’ that ‘a request for excusing the delay will be made for filing an appeal’ before celebrating second marriage after the expiry of 90 days.
Let us assume for a moment, that a divorcee, after waiting, firstly for ‘90 days’ in view of sec.28 of the HM Act and another 90 days to know whether Special Leave Petition is moved in approaching the Supreme Court,[37] performs second marriage.
Is excusing the delay is justifiable or not?
‘When delay is excused’ the ‘legal status, especially of new female spouse is ‘kept in abeyance’[38] until ‘the final disposal of the appeal’[39] but ‘children of fresh second marriage are ‘legitimate’ on the strength of Sec. 16 of the HM Act.’[40]
If appeal is dismissed she is safe or else, her plight is pitiable.
The author wants to give a solution to the problem.
The author had earlier expressed his opinion in his article[41] that the earlier proviso to sec. Sec. 15 of the HM Act[42] was quite unnecessarily deleted to make the problem of excuse of delay on the legal status of post divorce marriages more complicated.
This most salutary rule ‘of waiting period of 1 year for divorced couple for re-marriage’ is very useful in celebrating fresh marriage before the other spouse exhausts all the remedies to the level of Supreme Court within that period.
Even if we deduct the period of 90 days for filing of the first appeal and also another 90 days in moving the SC, still the appellant has days 185 left for praying for excusing the delay on valid reasons.
Therefore, the author once again firmly recommends that the proviso to Sec. 15 must be immediately brought into force.[43]
But it must be made clear that ‘delay, whatsoever, can never be excused when a fresh marriage celebrated after the expiry of 1 year’ by suitable amendment to the HM Act.
Similarly, suitable amendments must be brought into force to the HM Act that ‘a fresh marriage celebrated before the expiry of 1 year shall also lead to criminal prosecution’ as deterrent provision.
Now coming to the other side of the argument, it is highly debatable as some section of public may also argue that ‘excusing any period of delay, whatsoever, at least in divorce proceedings is not to be allowed’ as ‘90 days’ is more than sufficient for filing of an appeal.’
We have to wait for further developments.
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[1] Earlier it was ‘30 days, now ‘90 days’
[2] Sction 15 - When Divorced Persons May Marry Again. The main paragraph, minus the proviso (deleted in 1976) is as follows: ‘When a marriage has been dissolved by a decree of divorce and there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal being presented or an appeal has been presented but has been dismissed.
[3] As per the deleted proviso to Sec.15 ‘divorced couple shall wait for one year before performing second marriage.’
[4] Sabitri Senapati v. Judge, Family Court and Another AIR 2004 Orissa 75 DB
[5] Para 7, page 78
[6] In addition to the alimony of Rs. 40000, the respondent was directed to pay Rs. 100 000 to appellant.
[7] AIR 1997 Raj 63
[8] 1987 1 Raj LR 520
[9] II (1997) DMC 614, 1996 (3) WLC 505
[10] AIR 2000 AP 451
[11] AIR 1975 SC 1409
[12] Page 64, p 7
[13] AIR 1969 Mad. 405
[14] Para 1 at 405
[15] Para 2 at Page 405
[16] AIR 2013 AP 191
[17] Page 192 p 4
[18] Page 192 p 2
[19] Mohana Murari V. Kusuma Kumari (1965) MP 194
[20] Petition for ‘Restitution of Conjugal Rights.’
[21] This finding is sufficient for disposal of the case as there is no necessity to excuse the delay of 50 days.
[22] at Para 9 page 195
[23] For further information on the issue restraining one spouse from performance of second marriage by other spouse refer toUma Shanker Prasad Singh v. Rama Devi AIR 1967 Patna 220, Trilok Chand Modi v. Om Prakash Jaiswal AIR 1974 Patna 335,Bhornilal v. Kaushliya AIR 1970 Raj 83, Shankarrappa v Basamma AIR 1964 Mysore 247 and Sita Bai v. Ramachandra AIR 1958 Bom 116
[24] Mrs. Shakuntala v. Govinda Prasad (1985) 1 DMC 472
[25] Pramod Sharma v. Radha AIR 1976 P & H 355
[26] The SC in Lata Kamat v. Vilas AIR 1989 SC 1477 held that sec. 28 of the HM Act applies to ‘all decrees’ passed under the Act and also that sec. 15 of the HM Act also applies for performance of second marriage when earlier marriage had legally come to an end.
[27] Lord Justices Murthaja Fazl Ali and J.N. Bhat in Kishen Lal .v Mst. Krishna and others (AIR 1971 JK 31) held that ‘that husband’s appeal, filed on 19-12-1966’ (Para 4, page 32) challenging the dismissal of his earlier petition on 1-10-1966 for restitution of conjugal rights was found to be ‘within the period of limitation’ for granting the above decree on 23-4-1968 in his favor since ‘there was sufficient evidence to prove the marriage between the spouses’ and ‘it makes no difference to his appeal whether she married for second time before or after the appeal.’
[28]
[29] This decision also may not be direct authority on the main issue of this article because delay was anyhow excused but the appeal was found to be ‘in fructuous’
[30] But Lord Justice Veeraswamy did not share this opinion though it was also a decree of nullity.
[31] In Smt. Veena Rani (AIR 1995 P &H 213), rejecting husband’s argument that wife’s appeal be dismissed as it had become ‘in fructuous’ when he already had second marriage with Smt. Vidya on 9-5-1984 after obtaining the ‘order of annulment’ on 22-9-1983 thinking that Sec. 15 of HM Act does not apply, Lord Justices R. Sethi and G. Singhvi rightly held that that on ‘the strength of Lata Kamat that argument is no longer valid’ and all ‘the earlier decisions are not good law’ and also importantly on the reason held that he ‘married second time during the pendency of her appeal.’
[32] S.V. Suhasini Devi V. Padmanabhan AIR 1989 Ker 314
[33] K. Yasoda v Narayanan AIR 1985 Ker 220
[34] Chander Dev Chada v.Rani Bala AIR 1979 Delhi 22
[35] Suresh Bala v. G.M.S. Bala AIR 1983 Delhi 230
[36] Mrs. Debi Bhaduri v Kumarjib Bhaduri AIR 1980 Cal 1
[37] For instance refer to Suman Kapur V. Sudhir Kapur AIR 2009 SC 589.
[38] Though the problem of status of a spouse in second marriage is same in the reverse direction but the position of ‘males’ is not as ‘pitiable’ as in case of ‘females’ in our society.
[39] Refer to the facts and decision in Kannan v. Selvi (2012) 5 SCC (Lord Justice (Smt.) Ranjana Prakash Desai(wrote the judgment for herself and for Justice AFTAB ALAM) permanently settled the issue that when ‘an appeal challenging the divorce was allowed’ the dissolved marriage is revived, resulting in conviction for an offence sec. 494 of Indian Penal Code, 1860 f the spouse who performed second marriage pending appeal.
[40] Legitimacy of children of void and of voidable marriages
[41] ‘POST DIVORCE MARRIAGES PENDING APPEAL’ (Published in the Journal of Indian Law Institute, New Delhi, July 2004, Vol. 45, Nos. 3 & 4, Pages 450 to 470)
[42] The proviso is as follows:
‘any marriage solemnized by divorced persons before the period of 1 year from the date of decree of divorce is null and void’ but does not, of course, say, that it will lead to criminal prosecution of the person.’
[43] Refer to ‘the suggestion made by the Author way back in 2004 to bring back the deleted proviso to Sec. 15 of the HM Act’ in his Article.