Smt. Premlata Sharma vs Bhagwat Prasad Sharma and Another

K.C. Agarwal, J.—Doubting the correctness of a decision reported in Indraj Vs. Smt. Shanti and Others, a learned Single Judge made reference of the following question to the Full Bench:

Whether a second appeal is maintainable from an appellate decree in a proceeding under the Hindu Marriage Act, after its amendment by the Marriage Laws (Amendment) Act, 1976, and, if so, whether the limitation for filing it is 30 days or 90 days?

The aforesaid question raises two controversies. The first is about maintainability of a second appeal as against a decree of the lower appellate Court passed u/s 28 of the Hindu Marriage Act and the second is of limitation for filing a second appeal in the High Court.

The facts briefly stated are that B.P. Sharma, the Respondent, filed petition u/s 13(i)(a) of the Hindu Marriage Act for divorce against his wife, Smt. Prem Lata Sharma, on the ground that she had sexual intercourse with Respondent No. 2 after the solemnisation of the marriage. The petition was contested by his wife, Smt. Prem Lata Sharma, who is the Appellant in this appeal. On March 27, 1980, the Civil Judge, Dehradun, dismissed the petition against which Bhagwat Prasad Sharma, Respondent No. 1, preferred an appeal to the District Judge, who allowed the petition u/s 13(i)(a) on 19th May, 1981 and dissolved the marriage. Against this judgment and decree, Smt. Prem Lata filed the present second appeal.

In the second appeal, a preliminary objection to its maintainability was raised by Respondent No. 1. The Appellant controverted the preliminary objection by relying on the decision in Indraj Vs. Smt. Shanti and Others, , casting doubt on the correctness of the view taken in that case, the present reference has been made.

The original Section 28 has been deleted, and substituted by Section 19 of the Marriage Laws (Amendment) Act, 1976. The old section was as follows:

All decrees and orders made by the Court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are endorsed, and may be appealed from under any law for the time being in force Provided that there shall be no appeal on the subject of costs only.

This section has been a subject matter of interpretation by various High Courts expressing different views on the same.

The Law Commission in its 59th Report made a recommendation with regard to the amendment of various provisions of the Hindu Marriage Act, 1956. The Parliament acting upon the recommendations of the Law Commission amended Section 28 of the Act by the Marriage Laws (Amendment) Act, 1976. The Law Commission observed:

It would appear that most of the remedies conferred by the Hindu Marriage Act (to be pursued by a petition) being of a special character, it would be meaningless to expect that the right of appeal in relation to order under the Act would be available in any other law. The CPC (Section 104 and Order 43) could not have anticipated the subsequent passage of the Hindu Marriage Act. The narrower view would make it difficult to apply Section 28. Similar language is used in the Indian Divorce Act (Section 55) and the uniform interpretation of that section is that Act itself creates the right of appeal. The Special Marriage Act, (Section 39) also used similar language and does not seem to have been interpreted differently from the provisions in the Divorce Act.

At the same time, it appears to us that an omnibus right of appeal against orders is not necessary, and is likely to delay the proceedings. Generally speaking an appeal against order of an interim nature should be excluded."

Section 28, as it stands now, reads as under:

(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-section (3), be appealable as decree of the Court made in the exercise of its original civil jurisdiction, and every such appeal lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act, u/s 25 or Section 26 of this Act shall, subject to the provisions of Sub-section (3), be appealable if they are not in the nature of interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.

Sri. S.V. Gupta in his book on Hindu Law, 3rd (1981) Ed. Vol. II has described the position now as it stands after amendment made by the afore said Amending Act as follows:

The confusion or conflict of the view which was occasioned by the faulty drafting of the older Section 28 is now set at rest by the new section. Under this Sub-section all decrees made in any proceeding under this Act, except decrees only for costs, are made appealable, but in this Sub-section appeal would lie or not under any other law in force. Decrees which can be passed under this Act are decrees passed Under Sections 9, 10, 11, 12 and 13. Such appeals shall now lie to the Court to which appeals ordinarily lie from the decisions .of the Court given in the exercise of its original civil jurisdiction. In other words, while this Sub-section itself is the source of the right of appeal against the decrees passed under this Act the procedural right of filing the appeal will be governed by the other laws such as the Letters Patent, or the CPC or the other local laws. For further comments and decisions see comments u/s 3, Clause (b), paragraph 37 and comments in paragraph 262 of this section.

In regard to the difference of opinion between various High Courts, the Law Commission observed:

A controversy arose in the past with reference to this part of the section, the question being whether this section itself confers a right of appeal, or whether the reference to " any law for the time being in force " implies that a right of appeal must be sought in some other law. As the language of the section is not very clear on this point, and has been criticised judicially, the matter requires examination. Almost all High Courts now take the view that the right is conferred by Section 28. The case law on the subject is reviewed exhaustively in the Andhra Pradesh Full Bench decision and in a recent Bombay case.

It would be noticed from the above that the Law Commission had made a reference to a decision of the Andhra Pradesh High Court reported in Kode Kutumab Rao Vs. Kode Sesharatnamamba, and Madhukar v. Malthi 75 Bom. LR 311 where the view taken was that the right of appeal is conferred by Section 28. The Andhra Pradesh High Court had noted:

...It was meaningless to expect that right of appeal in relation to orders passed under the Act would be available in any other law. The clause ''may appeal from under any provision of law for the time being in force'' would, therefore, be meaningless if it be construed to mean that the right of appeal has been made to depend upon the existence of any provision in that behalf in any law unless we say that any law would also mean the Act itself....

In order to remove the anomaly and defuse the controversy arising out of the decisions of the various High Courts, that Section 28 of the Hindu Marriage Act was amended. Under the amended section, one has not to look to the CPC for finding out the meaning of the expression "decrees " used in Sections 9, 10, 11, 12 and 13 of the Hindu Marriage Act.

Another point worthy of being noticed is that as the Law Commission felt that a lot of time was wasted in the miscellaneous appeals which used to be preferred against the orders granting pendente lite maintenance, that it recommended for a clear provision providing that no appeal shall lie against the grant of pendente lite maintenance. By the Fifty-Ninth Report, the Law Commission also had recommended for amendment of Section 39 of the Special Marriage Act. It noticed that the language of Section 39 of the Special Marriage Act was also defective and the same controversy could arise as had arisen under the corresponding section in the Hindu Marriage Act. Section 39 of the Special Marriage Act providing for appeals was recommended to be enacted on the lines of Section 28 in the Hindu Marriage Act.

In Udayan Chinubhai v. R.C. Bali AIR 1977 SC 2319, the Supreme Court referred to the history of judicial controversy deading to the addition of Explanation in Sub-section (2) of Section 12 of the Limitation Act and also the recommendations of the Law Commission. It relied upon the recommendations of the Law Commission in support of its decision and while doing so it observed:

We are happy that in arriving at this decision, we are effectuating a very useful recommendation of the Law Commission whose anxiety in the Report was clearly manifest to put an end to an ancient judicial conflict. The Court will do its duty not to re-commence another series of litigation.

The above observations of the Supreme Court make it clear that the Court can look into the recommendations of the Law Commission while interpreting a provision which has been amended on its basis. The recommendations made in the instant case, if are kept into account, would clarify the meaning of Sub-sections (1) and (4) of Section 28.

Before we shift to the other point, we may also note the object of enacting Sub-section (4) of Section 28 recommended by the Law Commission as under:

In order to expedite the disposal of litigation, we also recommend that the period of limitation for appeals under the Act should be thirty days.

The objections of the Legislature given in the Bill were mainly:

(i) To liberalise the provisions relating to divorce;

(ii) To enable expeditious disposal of proceedings under the Act; and

(iii) To remove certain anomalies and handicaps those have come to light after the passing of the Act.

While interpreting Section 28 of the Hindu Marriage Act, as it stands now, it is necessary to keep in mind, as said by the Supreme Court in The Bengal Immunity Company Limited Vs. The State of Bihar and Others, , the following four things are to be discerned and considered :

(i) What was the common law before the making of the Act;

(ii) What was the mischief and defect for which the common law did not provide;

(iii) What remedy the Parliament has resolved and appointed to cure the disease; and

(iv) The true reason of the remedy.

These principles of law have been applied by the Supreme Court in subsequent cases. In R.M.D. Chamarbangwalla v. Union of India AIR 1957 SC 618, the Supreme Court stated that:

the Court dealing with the interpretation of an Act should have regard to the history of the legislation to declare object thereof and the working of the Statute.

The evil which was intended to be removed by the Amending Act was to avoid delay in the disposal of the cases. As already pointed out by us above, the evil was undue delay because of the appeals which used to be filed against grant of maintenance pendente lite and expenses. From its nature, the disputes contemplated by Sections 9, 10, 11, and 13 of the Act were such which needed early and expeditious disposal. It had been realised that frivolous appeals are filed against grant of maintenance pendente lite with a view to harass one side by the other. In order to knock off such appeals Section 28 was amended. The other reason appears to be the ambiguity in Section 28 which had let to conflicting interpretations.

Interpreting Sub-sections (1) and (4) of Section 28 of the Act, learned Counsel appearing for the Respondents contended that as the Legislature intended to provide for only one appeal, it provided limitation in respect of one appeal and not for two. He urged that had the Legislature thought of providing two appeals against the decrees contemplated by Sections 9, 10, 11 and 13, it would have enacted Section 28 differently and had similarly provided for ninety days limitation for filing appeal to the High Court. We are unable to accept this submission. Section 28(1) provides that all decrees passed by the Court in every proceeding under this Act are appealable to the Court to which an appeal lies from the trial Court in its original civil jurisdiction. As against a decree of a civil Court which is dealing with a suit below Rs. 20000/- an appeal lies to the District Judge and, thereafter, second appeal to the High Court. In case of valuation of a petition below Rs. 20000/-, the application would lie before a Civil Judge provided that such a Court is notified u/s 3(b) of the Hindu Marriage Act to be a District Court. Section 3(b) of the aforesaid Act defines the words "district Courts "as follows

(b) " district Court " means, in any area for which there is a city civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other civil Court which maybe specified by" the State Government by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt within this Act.

From a perusal of the definition, it would appear that other Courts of civil jurisdiction could also be invested with the jurisdiction to decide the cases under Hindu Marriage Act by means of notification by the State Government in the Official Gazette. In a case, therefore, where a Civil Judge is notified u/s 3(b) by the State Government to be a district Court, that Court would have jurisdiction to entertain the petition and the question of entertainability of an appeal and, thereafter, second appeal will depend on the valuation of the subject matter given by the Petitioner filing such an application. It is correct that no rule, perhaps as it was not possible to do so, has been made in accordance with which a petition could be valued. In the absence of such a rule, in a Petition where valuation was below Rs. 20000/- an appeal could lie to the District Judge whereas in another to the High Court. Similar anomalies may be in existence in other jurisdictional proceedings. That by itself will not rule out the interpretation of Section 28(1) that the right of appeal would be governed in the same manner as decree of a Civil Court made in exercise of its original civil jurisdiction. The expression "as" used in Section 28(1) is indicative of the intention 9 Parliament that a decree made by the Court in any proceeding under the Hindu Marriage Act should receive the same treatment with regard to the appealability as decrees made in exercise of its original civil jurisdiction... This expression means "like", "similar to", "of the same kind", "in the same manner", "in the manner in which".

Emphasis was laid by the learned Counsel for the Respondents on the words "each such appeal" and it was submitted that since the expression "each" is indicative of only one, therefore the Court must hold that only one appeal has been provided for by the legislature and should not hold that the second appeal is also maintainable Under Sub-section (1) of Section 28 of the Act, as that would amount to legislating. The expression "every" here would mean "each one of all". The dictionary meaning of the word "every" given in Black''s Dictionary is "each one of all", "all separate", "individual", "were constituting the whole", "one by one". Consequently, we have no difficulty in holding that the expression "each" used-in Section 28(1) does not necessarily mean only one. On the plain language of Section 28(1), therefore, it clearly follows that each one of the decrees passed by a Court deciding petitions Under Sections 9, 10, 11 and 13, would receive the same treatment as regards appealability of the decree of a civil Court made in exercise of its original civil jurisdiction. Since a second appeal is provided for against a decree of a Civil Judge made in a suit below Rs. 20000/-, a second appeal would equally be maintainable in petitions below that amount if it has been tried by a Civil Judge.

Section 21 simply provides that all proceedings of the Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. It would mean that the matters of procedure of petition filed under this Act and of an appeal would be regulated by the Code of Civil Procedure. As to whether Section 21 merely regulates the proceedings under the Act, and does not confer the right of appeal, the Andhra Pradesh High Court held in Narendra Kumar Mehta Vs. Suraj Mehta, , that an appeal lies against a decree or order made under this Act under the specific provision contained in Section 28 of the Act and Section 21 of the same has no concern with the appealability of the decree. In our view, the right of second appeal flows from Section 28 but powers of the Court in dealing with the same are to be regulated by the provisions of the CPC in view of Section 21. Therefore, a second appeal arising out of decrees passed under the Hindu Marriage Act is limited to the grounds set out in Section 100 of the CPC and can be exercised only on the substantial questions of law. In Mohana Srinivasan v. Girija 1981 I MLJ 321; the Madras High Court was required to consider whether the second appeal lies after the amendment of Section 28 of the Hindu Marriage Act. It answered the question in the affirmative. It, however, held that the powers of the Court dealing with the second appeal would be those which are contained in Section 100 of the Code of Civil Procedure.

The next argument, was that the object behind Section 28 of the Hindu Marriage Act, introduced by the Amending Act that the proceedings under the Act, would be defeated if two appeals are found to be maintainable under the aforesaid Act. It was urged that second appeals had been consuming a lot of time in the disposal of the proceedings under the Act, which by their nature are such that they should be expeditiously decided by being given a priority over other cases. It may be true that the arrears in this Court are very heavy and disposal of second appeals is taking normally eight to ten years but that cannot be a ground to give a different interpretation to Section 28(1) than the language plainly suggests. This means that the right of second appeal has been curtailed or taken away by it. It may be true that because of the notification of the State Government made u/s 3B that Civil Courts have been recognized as district Courts for the purpose of this Act and that gives the right of filing two appeals. This again, to us, appears to be an untenable ground for interpreting Section 28(1) in a manner that it could justify that only one appeal is maintainable. It will not be possible to do so as the language used in it does not justify the same. Moreover, as emphasised earlier, the intention of the Amending Section 28(1) was not to curtail the second appeals. Its intention was to remove the anomalies and to do away with the appeals against grant of interim maintenance. At this place, it will be worth noting that whereas under Sub-section (1)(a) of Section 28 as against decrees two appeals are maintainable, the same would not be applicable to orders contemplated by Sections 25 and 26. In those cases only one appeal has been provided. Had the Legislature intended to provide for only one appeal in the cases of orders Under Sections 25 and 26, it would have used a similar phraseology. This having not been done, the intention of the Legislature to curtail second appeal does not appear to be so.

The second aspect of the question referred to this Full Bench is about the period of limitation of filing a second appeal. In Indraj v. Shanti, Hon''ble N.D. Ojha, J., held that the limitation for such an appeal would be the same as that of second appeals, filed under the Code of Civil Procedure. The period of limitation for such second appeal is laid down in Article 116.

With the help of Sub-section (4) of Section 28, the argument made was that as it lays down limitation for only one appeal, it must necessarily follow that no second appeal was thought of.

We do not agree with this submission. The period of limitation provided for under Sub-section (4) would not only govern a first appeal but also a second appeal. The expression "every" used in Sub-section (4) of Section 28, if is given its ordinary meaning, it would mean all the appeals. Reading Sub-sections (1) and (4) we will find that limitation in respect of all the appeals is 30 days. The learned Counsel for the Respondents suggested that as period of filing a second appeal in the Limitation Act is 90 days, the Legislature would not have cut it down to thirty days, had it not intended to make provision only for one appeal. This submission is not correct. In the context, the most appropriate construction is that Sub-section (4) of Section 28 will cover all the appeals permitted by Section 28(1). We are unable to find anything in Sub-section (4) which could justify that only one appeal is permissible. So long as Section 3(b) remains what it is, the State Governments would be entitled to nominate the Civil Judges as Courts competent to try the applications contemplated by the Act. If that remains to be so, the second appeals would survive. It is a different matter that the State Governments may, by realising the expediency of the matter, nominate the Additional District Judges alone u/s 3(b). Article 116 (a) of the Limitation Act providing for ninety days limitation to the High Court universally applies to all the appeals under the Code of Civil Procedure, whether first or second. Therefore, merely curtailing down the period of limitation from ninety days to thirty days for appeals under the Hindu Marriage Act could not be a ground for holding that second appeal is not maintainable. It can be for another purpose which would be dealt with by us presently.

In Indraj v. Smt. Shanti, the learned Judge held that the limitation for filing a second appeal is ninety days. With great respect we are unable to subscribe to the said view. We have noticed above, Sub-section (1) of Section 28 provides for both a first appeal as well as a second appeal, and Sub-section (4) Section 28 prescribed a period of limitation for all the appeals provided by Section 28(1). Its application "cannot hence be restricted to first appeals. Under Sub-section (2) of Section 29 of the Limitation Act, a different period of limitation for filing an appeal can be prescribed by the special jaw than one which has been laid down by the Limitation Act, 1963. Further, Article 116 (a) of the 2nd Schedule of the Limitation Act prescribes a period of limitation for both first and second appeals to the High Court that lie under the Code of Civil Procedure. We have already found above that the second appeal in the present case lies u/s 28(1) of the Hindu Marriage Act and not u/s 100 of the Code of Civil Procedure, as held by the Gujrat High Court in Bai Umiyabhen Vs. Ambalal Laxmidas, . That being so, the period of thirty days prescribed by Sub-section (4) of Section 28 of Hindu Marriage Act is the limitation for all appeals that lie under that provision and Sections 4 - 24 of the Limitation Act would apply to such appeals by virtue of the aforesaid provision i.e. Sub-section (2) of Section 29 inasmuch as they are not expressly excluded by any provision of the Hindu Marriage Act. Moreover, it would be anomalous to say that for a first appeal limitation would be thirty days whereas for the second appeal it would be ninety days. In fact, Section 100 of the CPC only deals with the powers of a Court. It has no concern with the period of limitation within which such an appeal should be preferred. A second appeal arising out of a civil suit is'' filed within ninety days because of Article 116 of the Limitation Act. This Article 116 is not applicable on account of the Special Law enacted by Sub-section (4) of Section 28. The period, in our opinion, is thirty days in cases of both the appeals. The purpose of enacting Sub-section (4) of Section 28 is not far to seek. The same is for early and expeditious disposal of disputes arising out of proceedings under the Hindu Marriage Act. An early disposal of the dispute is not only in the interest of spouse but their children and all others. Solely with this aim in view the Legislature had made a special provision for limitation. In Mrs. Debi Bhaduri Vs. Kumarjib Bhaduri, a Full Bench was required to consider whether the period of limitation of thirty days prescribed by the Amending Act and not the original period of ninety days under the Limitation Act, 1963, would be applicable. It held that the period is thirty days. It may be noticed here that this controversy has arisen with respect to an appeal filed before the endorsement of the Marriage Laws (Amendment) Act, 1976. Since Section 39(1) of the Marriage Laws (Amendment) Act, 1976, lays down that the amendment made by the aforesaid Amending Act applies to all the pending matters, the Calcutta High Court held that the period of limitation would be applicable even to the appeals which had been filed before the enforcement of the Marriage Laws (Amendment) Act, 1976. It is true that this case was of a first appeal and not of the second appeal but the question was about the applicability of Article 116 (a) of the Limitation Act, 1963 which applies to the High Court in respect of all the appeals whether first or second.

Our attention had also been invited to a decision of our High Court in Smt. Gurbachan Kaur Vs. Sardar Swaran Singh, . In this case, a learned Single Judge held that a second appeal to the High Court is maintainable as against an appellate judgment. For coming to this conclusion, the learned Judge had referred to and relied upon the decision of this Court in Smt. Sarla Devi Vs. Shri Balwan Singh, and Bai Umiyabhan v. Ambalal Laxmidas AIR 1966 Guj. 139. In the latter decision their Lordships of the Gujrat High Court held that the right of second appeal against an appellate order by a Court in petition for judicial separation does not flow from Section 100 of the CPC inasmuch as that a decree passed in proceedings for judicial separation under the Hindu Marriage Act is not a decree within the meaning of Sub-section (2) of Section 2 of the said Act. The Gujrat High Court held that the words "decrees and orders" contained in Section 28 of the Hindu Marriage Act included not only original decrees but also appellate decrees. We entirely agree with the above view expressed by the Gujrat High Court, and although it was based on unamended Section 28, its ratio as regards the appealability of the decrees passed under the Hindu Marriage Act, still holds good.

With regard to the decision Smt. Gurbachan Kaur Vs. Sardar Swaran Singh, , we may respectfully point out that since the learned Judge was dealing with an appeal filed after the Marriage Laws (Amendment) Act, 1976, he was required to take into account the amendment of Section 28 made by the aforesaid Amending Act by virtue of Section 39 of the same.

We are, therefore, of the opinion that Indraj v. Shanti, does not lay down the law correctly. It is, therefore, over-ruled.

For what we have said above, we answer the question referred to us by holding that the second appeal is maintainable- from the appellate decree in the proceedings under the Hindu Marriage Act, and the limitation for filing the said appeal is thirty days.

With these answers we return the papers to the learned Single Judge for disposal of the second appeal according to law.