Rajendran -Vs- S. Valli
Civil Appeal No. 3293 Of 2012
[February 03, 2022]
Judgement of the Hon’ble Supreme Court of India– Section 13 (1) (ia) of the Hindu Marriage Act-Appeal against the Judgment of the Hon’ble High Court reversing the decree for dissolution of the marriage passed under Section 13 (1)(ia) of the Hindu Marriage Act–Limitation Act applies to Appeal from the decree or order passed under the Hindu Marriage Act- the Family Courts Act is not a standalone Act. It draws sustenance from Acts like the Hindu Marriage Act-No right to remarry inures automatically after the expiry of 30 days from the date of the decree of divorce- consent of the parties not necessary to order dissolution of marriage on the ground of irretrievable breakdown.
Observations and findings of the Hon’ble Court:
“8. As far as the contention of the learned counsel for the appellant that the High Court erred in the matter of reversing the decree of the Family Court is concerned, we are of the view that there is absolutely no merit in the contention. Undoubtedly, to describe the marriage as short-lived will not extricate the appellant from the rightful share of blame that falls on his shoulders.”
“9……..Making up the case of a strained relationship between the appellant and the respondent as a ground of cruelty is beyond our comprehension. To our query to the learned counsel for the appellant as to whether there are any other circumstances or instances of cruelty, learned counsel of appellant apart from pointing out to the threat to commit suicide and refusal to come back, was unable to point out any other specific instance of cruelty. As regards, the respondent not coming back, it is quite clear that respondent being pregnant, she had to go to her parental house. This was but natural. The pregnancy was not a smooth one as pointed out. If the wife decided to stay for some more time in her own parents house, after the delivery of the child, it is beyond our comprehension as to how such a case could have been brought before the Court, and more importantly without even waiting for a reasonable period of time. The appellant was not even keeping in mind the fact that had fathered a child, rushes to the Court and files the petition seeking divorce. We cannot be oblivious to the death of the father of the respondent on 03.02.2001. Keeping in view these facts, we do not see any ground being made out by the appellant for interfering with the findings that there is no cruelty made out by the appellant on the part of the respondent. The learned counsel for the respondent points out that there is no evidence for the alleged threat to commit suicide and we do not think that there is any material produced which can be believed apart from what can we describe as normal wear and tear, which is normal to most marriages, if not all. There is nothing which is made out to justify a decree of dissolution of marriage on the ground of cruelty by the respondent.”
“19………..The result is that the court hearing the appeal from the decree or order passed under the Hindu Marriage Act would under Section 3 of the Limitation Act have power to dismiss the appeal if made after the period of limitation of 30 days prescribed therefor by the special law. Similarly, under Section 5 for sufficient cause it will have the power to condone delay. Likewise, under Section 12(2) the time spent in obtaining a certified copy of the decree or order appealed from will be excluded. If it is so, Section 12(2) of the Limitation Act is attracted, and the appellants in all the three appeals will be entitled to exclude the time taken by them for obtaining certified copy of the decree and order.”
“17. The contention therefore that the appeal under the Hindu Marriage Act against a decree for divorce should be filed within 30 days of the date of the decree, whether a certified copy has been obtained or not and even if the appellate Court closes after the decree has been passed or order has
been made and remain so closed for over 30 days therefrom cannot be accepted. Section 15 of the Hindu Marriage Act only declares that it shall be lawful for either party to the marriage to marry again under certain circumstances. From this it does not follow that a right to remarry enures automatically after the expiry of 30 days from the date of the decree of
divorce. If an appeal is presented, one will have to wait till it is dismissed. If there is a right of appeal, the time for filing the appeal should have expired without the appeal being filed, taking into consideration the time required for obtaining the certified copy. The period for filing the appeal does not expire if once the delay in filing the appeal is condoned. The computation of time under Section 10 of the General Clauses Act, 1897 when the court or office is closed also extends the time beyond 30 days. Thus Section 15, on its face, indicates that it is not the legislative intention that a right to remarry arises exactly after 30 days of the decree of divorce.”
“24. 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.”
“26. 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.”
“27. we notice that this Court has clarified that though Section 15 uses the word dissolved, it has been interpreted to also apply to cases where the marriage is pronounced null and void keeping in view the interests of justice. Thus, the intention of the Legislature was to give effect to the decree for dissolution, if the unsuccessful party does not move the appellate court within time…….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 contravention of mandate of Section 15 of the Hindu Marriage Act and we have no hesitation in holding that the High Court was entirely right in its findings.”
“29. Article 142 of the Constitution undoubtedly clothes this Court with a reservoir of power to pass orders as would reach complete justice to the parties. What comes to mind is the concept of irretrievable breakdown of marriage. Undoubtedly, though there have been reports of the Law Commission in this regard recommending changes in the law, as of today the statute does not provide for irretrievable breakdown of marriage as a ground. However, this Court has on a number of occasions exercised its power and granted dissolution of marriage on the ground of irretrievable breakdown of marriage based on Article 142…………But that then leads us to the question as to whether the consent of the parties is necessary to order dissolution of marriage on the ground of irretrievable breakdown….”
“32. Having found that consent of the parties is not necessary to declare a marriage dissolved, we cannot be unmindful of the facts as they exist in reality. There has been a marriage which took place on 31.10.2004. 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, we would think that it would be in the interest of justice and to do complete justice to the parties that we should pass an order dissolving the marriage between the appellant and the respondent.
” 33. We make it clear that this decision of ours is not based on our approval of the conduct of the appellant nor is it based on sitting in judgment over the conduct of the respondent. In other words, we find that respondent is blameless in the matter but the facts as they have unfolded and the developments which have taken place, render it unavoidable for us to consider dissolution of marriage as the best course open in the interest of justice.”