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PETITIONER: SMT. LATA KAMAT

       Vs.

RESPONDENT: VILAS

DATE OF JUDGMENT29/03/1989

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) PANDIAN, S.R. (J)

CITATION:  1989 AIR 1477            1989 SCR  (2) 137  1989 SCC  (2) 613        JT 1989 (3)    48  1989 SCALE  (1)867

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.

HEADNOTE:             A decree in favour of the respondent-husband was grant ed         by the Trial Court declaring his marriage with the appella nt         to be a nullity under section 12(1)(d) of the Hindu Marria ge         Act,  1956 on the ground that the wife at the time  of  ma r-         riage was pregnant by some one other than the respondent. In         the  appeal filed by the appellant, the respondent raised  a         preliminary  objection  contending that the appeal  was  n ot         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

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       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  h ad         re-married  after the period of limitation had  expired, as         the 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  ma

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de         by  the Court in any proceeding under this Act  are  appea l-         able.  In  order to provide an appeal  against  all  decre es         section  28 has used a very wide terminology which  includ es         decrees under sections 11, 12 and 13, and so far as this is         concerned  it could hardly be contested as the  language of         section 28 itself is so clear. [143G-H]             (3) If it is accepted that section 15 will not apply to         cases  when  a decree is passed under section 11 or  12, it         will  mean  that  as soon as a decree is  passed  the  par ty         aggrieved may appeal but the other party by remarriage wou ld         make  the  appeal  infructuous and therefore  the  right of         appeal of one of the parties to the decree under section 28         will be subject to the act of the other party in cases whe re         decree is passed under section 11 or 12. But if it were  s o,         the Legislature would have provided a separate provision f or         appeal when there is a decree under section 13 and a diffe r-         ent  provision for appeal when there is a decree under  se c-         tion 11 or 12 as the right of appeal against a decree  und er         section  11 or 12 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 ]

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           Chandra Mohini Srivastava v. Avinash Prasad Srivastava

JUDGMENT:         Anr.,  [1967] 1 SCR 864; Tejinder Kaur v. Gurmit Singh,  A IR         [1988]  SC 839; Vathsala v. N. Manoharan, AIR (1969)  Madr as         405, referred to.             Mohanmurari  v. Srnt. Kusumkumari, AIR (1965) M.P.  19 4;         Jamboo Prasad Jain v. Smt. Malti Prabha, AIR 1979  Allahab ad         260;  Pramod  Sharma v. Smt. Radha, AIR (1976)  Punjab  35 5,         overruled.             (5) So far as clause (3) of Section 29 of the Limitati on         Act  is concerned, the impact of it will be that the  prov i-         sions of the Limitation Act will not apply so far as a  su it         or  an original proceeding under the Hindu Marriage  Act is         concerned, but clause (3) will not govern an appeal. [149E ]             (6) To an appeal under section 28 of the Hindu  Marria ge         Act,  provisions contained in section 12 clause (2)  of  t he         Limitation  Act will be applicable, and therefore, the  ti me         required  for obtaining copies of the judgment will have to         be  excluded  for  computing the period  of  limitation  f or         appeal. [149G-H]             Chander  Dev Chadha v. Smt. Rani Bala, AIR (1979)  Del hi         22; Smt. Sipra Dey v. Ajit Kumar Dey, AIR (1988) Cal 28  a nd         Kantibai  v.  Kamal Singh Thakur, AIR (1978) M.P.  245,  r e-         ferred to. &             CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  708 of         1988.             From  the  Judgment and Order dated 20.2.  1987  of  t he         Bombay High Court in S.A. No. 282 of 1985.             Mrs. Shyamla Pappu, K.K. Rai and Mrs. Indira Sawhney f or         the Appellant.         G.L. Sanghi and A.K. Sanghi for the Respondent.         The Judgment of the Court was delivered by         OZA, J. This appeal after leave has been filed by the appe l-         lant         140         wife  arising out of a decree under Section 12(1)(d) of  t he         Hindu Marriage Act (hereinafter referred to as the ’Act’),  a

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       decree declaring the marriage a nullity.             The  respondent  husband instituted a  petition  on  7 th         March,  1984  for  a declaration that the  marriage  of  t he         respondent with the appellant wife was a nullity under  su b-         section  (1) sub-clause (d) of section 12 of the Act on  t he         ground that appellant, the wife at the time of marriage wi th         the  respondent  was  pregnant by some one  other  than  t he         respondent. The appellant wife contested the allegations a nd         ultimately  the  IIIrd Joint Civil  Judge,  Senior  Divisi on         Nagput  granted a decree in favour of the respondent by  h is         judgment dated 3rd May, 1985 declaring the marriage to be  a         nullity.             The appellant wife filed a regular civil appeal No.  4 36         of  1985  on 19.7.1985 before the IInd  Additional  Distri ct         Judge,  Nagput. Before this appeal could be filed,  the  r e-         spondent husband married one Miss Sarita daughter of Laxma n-         rao  Modak  on  27.6.1985, and in the appeal  filed  by  t he         appellant,  the  respondent raised a  preliminary  objecti on         contending  that  after passing of the judgment  and  decr ee         dated  3.5.1985  by the trial court he  has  married  Sari ta         daughter  of  Laxmanrao Modak on 27.6.1985. It  was  furth er         alleged in the application that this marriage was solemnis ed         on  27.6.1985 when there was no impediment against  the  r e-         spondent husband which could come in his way for contracti ng         this marriage as the parties were relegated to the  positi on         as  if  they were not married and  therefore  this  marria ge         performed  on 27.6.1985 of respondent with Sarita was  leg al         and  valid  and the consequence of this is that  the  appe al         filed by the appellant was not tenable having been  render ed         infructuous. The IInd Additional District Judge, Nagpur vi de         his  order  dated  17.8.1985 allowed the  objection  of  t he         respondent  and dismissed the appeal as infructuous  with  a         direction to the parties to bear their own respective cost s.             Against  this  the appellant preferred a  second  appe

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al         before the High Court. The High Court by its judgment  dat ed         20.2.1987  dismissed the appeal holding that as  the  appe al         was  filed  by the appellant after the  re-marriage  of  t he         respondent it has become infructuous. The learned Judge al so         dismissed the application for maintenance pendent elite  a nd         aggrieved by this judgment of the High Court after obtaini ng         leave this appeal is filed in this Court.             It  was contended by learned counsel for  the  appella nt         that  the language of Sec. 15 clearly goes to show  that it         refers to a marriage         141         which  has  been  dissolved and it also talks  of  fight of         appeal against the decree. In view of this language used in         Sec.  15 it is not possible to distinguish between a  decr ee         of  nullity  under Section 11 or 12 and  decree  of  divor ce         under  Section 13. It was contended that the word  ’divorc e’         has been used in this provision in a broader sense  indica t-         ing that where the marriage is dissolved or the relationsh ip         is  brought  to an end by decree of court whether it  is by         declaring the marriage invalid or dissolving it by a  decr ee         but  result  is  the same and it was contended  that  it is         because  of this that in this Act there is neither any  sp e-         cific definition provided for the term ’divorce’ or a decr ee         of  divorce.  It was also contended that  when  language of         Section 15 refers to a fight of appeal will have to look to         the provision providing for an appeal and Sec. 28 of the A ct         which  provides for appeals against all decrees made by  t he         court  in proceedings under this Act. It was therefore  co n-         tended that the interpretation put by the lower court on t he         basis  of judgments of some of the High Courts that Sec. 15         will  not  apply to a decree under Sec. 12  but  would  on ly         apply  when there is a decree under Sec. 13 does not  appe ar         to be the correct view and on this basis it was contended by         learned counsel for the appellant that the courts below we

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re         wrong in coming to the conclusion that the appeal had beco me         infructuous  because  the respondent has  married  a  seco nd         time.             Learned  counsel  also referred to meaning of  the  wo rd         ’divorce’  in Webster’s Third New  International  Dictiona ry         and  Shorter Oxford English Dictionary. Learned  counsel in         support of her contentions referred to the two decisions of         this  Court in Chandra Mohini Srivastava v.  Avinash  Pras ad         Srivastava & another, [1967] 1 SCR 864 and Tejinder Kaur v.         Gurmit Singh, AIR 1988 SC 839 Although on the basis of the se         decisions what was contended was that the provisions of  t he         Act  have  to be interpreted broadly. Learned  counsel  al so         placed reliance on the decision in Vathsala v. N. Manohara n,         AIR 1969 Madras 405. Learned counsel however, conceded  th at         there are decisions in Mohanmurari v. Smt. Kusumkumari,  A IR         1965 M.P. 194;. Jamboo Prasad Jain v. Smt. Malti Prabha  a nd         Anr.,  AIR  1979  Allahabad 260 and Pramod  Sharma  v.  Sm t.         Radha, AIR 1976 Punjab 355 where the question of Section 15         in relation to a decree under Sec. 12 has been  specifical ly         considered  and decided against the appellant,  but  learn ed         counsel  contended  that the scope and language of  Sec. 15         coupled with the language of Sec. 28 has not been consider ed         by any one of these courts. Learned counsel for the respon d-         ent on the other hand contended that the language of Sec. 15         refers to "marriage dissolved by decree for divorce" where as         in the present case, the mar-         142         riage  was not dissolved by decree of divorce. The  marria ge         was declared as nullity under Sections 11 and 12 of the Ac t.         Sections  11  and 12 of the Act, according  to  the  learn ed         counsel, talk of annulment of marriage "by decree of  null i-         ty" and it was contended that it is because of this that t he         various High Courts have taken a view that Sec. 15 will  n ot         apply  to cases where a marriage is annulled by a decree

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of         nullity  in  accordance with Sections 11 or 12 of  the  Ac t.         Learned counsel however frankly conceded that so far as Se c.         28 is concerned, the language is so wide that an appeal wi ll         lie  even against a decree under Section 11 or 12 and if an         appeal lies under Sec. 28 even against the order or a decr ee         passed under Sections 11 or 12, the phrase ’if there is su ch         a  right of appeal, the time for filing has expired  witho ut         an  appeal having been presented’ are to be given its  mea n-         ing,  it  would  be clear that Sec. 15 also  will  apply to         decrees  by  which the marriage is either dissolved  or  a n-         nulled i.e. decrees which are passed under Sec. 12 or  und er         Sec.  13.  Learned counsel in face of  this  raised  anoth er         contention  pertaining to the application of the  Limitati on         Act which we will examine later.             In order to understand the meaning of Sec. 15 of the A ct         it would be better if we first notice that the words ’decr ee         for divorce’ or ’decree for nullity’ has not been defined in         any one of the provisions of this Act. Sec. 12 clause (1) of         the Act reads:         "Any  marriage solemnized, whether before or after the  co m-         mencement of this Act, shall be voidable and may be annull ed         by  a  decree  of nullity on any of  the  following  groun ds         namely,--         Similarly Sec. 13 clause (1) of the Act reads:         (1)  Any  marriage solemnized, whether before or  after  t he         commencement  of  this Act may, on a petition  presented by         either  the  husband or wife, be dissolved by  a  decree of         divorce on the ground that the other party,--         143         It  is no doubt true that these two sections have  differe nt         phraseology.  In section 12 it is said that the marriage be         annulled  by a decree of nullity whereas in Section 13,  t he         phraseology used is "dissolved by decree of divorce" but in         substance the meaning of the two may be different under  t he         circumstances  and on the facts of each case but  the  leg al

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       meaning  or the effect is that by intervention of the  cou rt         the relationship between two spouses has been severed eith er         in  accordance with the provisions of Section 12 or  in  a c-         cordance  with the provisions of Section 13. Probably it is         because  of this reason that the phrase ’decree of  nullit y’         and  ’decree of divorce’ have not been defined. Sec.  28 of         the Act reads:         "28. Appeal from decrees and orders (1) All decrees made by         the court in any proceeding under this Act shall, subject to         the provisions of sub-section (3), be applicable as  decre es         of  the  court made in the exercise of  its  original  civ il         jurisdiction,  and every such appeal shall lie to the  Cou rt         to  which appeals ordinarily lie from the decisions  of  t he         court given in the exercise of its original civil  jurisdi c-         tion.         (2)  Orders made by the Court in any proceeding  under  th is         Act,  under Section 25 or Section 26 shall, subject  to  t he         provisions of sub-section (3), be appealable if they are n ot         interim orders, and every such appeal shall lie to the cou rt         to  which  appeals ordinarily lie from the decision  of  t he         Court given in exercise of its original civil jurisdiction ;         (3)  There  shall  be no appeal under this  section  on  t he         subject of costs only.         (4)  Every  appeal  under this section  shall  be  preferr ed         within  a period of thirty days from the date of the  decr ee         or order. ’ ’         Under  this provision all decrees made by the Court  in  a ny         proceeding  under  this Act are appealable.  Apparently  a ny         proceeding under this Act will refer to a proceeding  inst i-         tuted  under  Section 13 or a  proceeding  instituted  und er         Sections 11 or 12 as Sections 11 or 12 talks of ’decree  f or         nullity’ and Section 13 talks of ’decree for divorce’ but in         order  to provide an appeal against all decrees  Section 28         has used a very wide terminology which include decrees und er         Sections  11, 12 and 13 and so far as this is  concerned

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it         could  hardly  be contested as the language  of  Section 28         itself is so clear. It is in this context that we         144         analyse the language of Section 15. It reads:         "Divorced  persons when may marry again-When a marriage  h as         been dissolved by a decree of divorce and either there is no         fight  of appeal against the decree or, if there is  such  a         fight of appeal, the time for appealing has expired  witho ut         an  appeal having been presented or an appeal has been  pr e-         sented but has been dismissed, it shall be lawful for eith er         party to the marriage to marry again."         Before  we examine the phraseology ’dissolved by  decree of         divorce’  it  would be worthwhile to examine  the  remaini ng         part of this provision, especially ’if there is such a fig ht         of  appeal,  the time for appealing has expired  without an         appeal having been presented or an appeal has been present ed         but  has been dismissed’. If we give narrow meaning  to  t he         term  ’dissolved by decree of divorce’ as contended  by  t he         learned counsel for the respondent, it will mean that if it         is a decree under Sec. 13 then either party to the  procee d-         ing have to wait till the period of appeal has expired or if         the  appeal  is filed within limitation till the  appeal is         disposed of and before that it will not be lawful for eith er         party  to  the marriage to marry again. The  phrase  ’eith er         party to the marriage’ if is co-related with the first  pa rt         of the Section, marriage which has been dissolved by  decr ee         of  divorce  will indicate that what was  provided  in  th is         Section  was  that when a relationship of marriage  is  di s-         solved  by decree of court and either no appeal is filed or         if  filed,  is dismissed then either party to  the  marria ge         which  has been dissolved by the process of law by a  decr ee         are  free  to marry again. The only words on  the  basis of         which  the narrow meaning has been given to this Section by         some of the High Courts is on the basis of the Words ’decr ee

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       of divorce’, it could not be doubted that where the marria ge         is  dissolved  under  Sections 11, 12 or 13 by  grant  of  a         decree of nullity or divorce, the relationship is  dissolv ed         or in any way is brought to an end and it would be  signif i-         cant  that if the language of Section 15 is  interpreted in         the  light of Section 28 which provides for appeal and  co n-         fers a right of appeal on either party to proceedings  whi ch         culminate into a decree bringing an end to the  relationsh ip         of marriage then we will have to infer that the  Legislatu re         so far as decrees under Section 13 are concerned wanted  t he         right  of appeal to survive but in decrees under Section 11         or  12  the  Legislature wanted the right of  appeal  to be         subject  to the will of the other party. As it  is  appare nt         that  if  what is contended by the learned counsel  for  t he         respondent  and held by some of the High Courts is  accept ed         that Sec. 15 will not apply to cases when a decree is pass ed         under Sec. 11 or 12 it will mean that as         145         soon  as a decree is passed the party aggrieved  may  appe al         but  the  other. party by remarriage would make  the  appe al         infructuous and therefore the right of appeal of one of  t he         parties  to the decree under Sec. 28 will be subject to  t he         act of the other party in cases where decree is passed und er         Sections  11 or 12 but if it were so, the Legislature  wou ld         have provided a separate provision for appeal when there is         a  decree  under Section 13 and a  different  provision  f or         appeal when there is a decree under Sections 11 or 12 as t he         right  of appeal against a decree under Sec. 11 or 12  cou ld         only  be a limited right subject to the desire of the  oth er         party.  The  Legislature in its wisdom has enacted  Sec. 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 this  A ct         which will include a decree under Sections 11, 12 or 13  a

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nd         therefore the only interpretation which could be put on  t he         language of Sec. 15 should be which will be consistent  wi th         Section  28.  This phrase ’marriage has  been  dissolved by         decree of divorce’ will only mean where the relationship of         marriage has been brought to an end by the process of  cou rt         by a decree.             It  is plain that the word ’divorce’ or ’decree  of  d i-         vorce’ have not been defined in this Act. The meaning of t he         word ’divorce’ indicated in Shorter Oxford English  Dictio n-         ary reads:         "Divorce--1.  Legal  dissolution of marriage by a  court or         other  competent body, or according to forms locally  reco g-         nized.  2. Complete separation; disunion of  things  close ly         united ME. 3. That which causes divorce 1607."         Similarly the meaning of the word ’divorce’ as indicated in         Webster’s Third New International Dictionary reads:         "Divorce--1:  a legal dissolution in whole or in part  of  a         marriage relation by a court or other body having  compete nt         authority.         In  Vathsala’s case the Court had occasion to  consider  t he         effect of an application for setting aside an exparte decr ee         which  was granted under Sec. 12 and it was  contended  th at         while  the application by the husband for setting aside  t he         exparte  decree was pending the wife contracted  remarriag e.         Will  not remarriage have the effect of making the  applic a-         tion to set aside exparte decree infructuous? More or less  a         similar  question is in the present case where it  has  be en         held  that by marrying the second time the  respondent  ma de         the appeal filed by the         146         appellant  infructuous, and the learned Judge placing  rel i-         ance on the observations made in Chandra Mohini’s case hel d:         "That  is  the principle of Smt. Chandra Mohini  v.  Avina sh         Prasad,  AIR  1967 SC 581. The principle laid down  in  th at         decision has general application. The Supreme Court  point ed         out  that on dissolution of marriage, a spouse can  lawful

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ly         marry  only  when there is no right of  appeal  against  t he         decree  dissolving  the marriage or if there is a  right of         appeal, the time for filing of an appeal has expired or  t he         appeal presented has been dismissed."         The question about an appeal to the Supreme Court has  als o-         been  considered in a recent decision of this Court  in  T e-         jinder Kaur’s case wherein the observations made in  Chand ra         Mohini’s case have been quoted and it is held that:         "In view of this, it was incumbent on the respondent to ha ve         enquired about the fate of the appeal. At any rate, the Hi gh         Court  having  dismissed the appeal on 16th July,  1986  t he         petitioner  could  have presented a special  leave  petiti on         within ninety days therefrom under Art. 133(c) of the  Lim i-         tation  Act, 1963 i.e. till 14th September, 1986. Till  th at         period was over, it was not lawful for either party to mar ry         again as provided by S. 15. It was incumbent on the respon d-         ent, as observed in Lila Gupta’s case (ILR 1969) 1 All.  9 2)         to  have  apprised himself as to whether the appeal  in  t he         High Court was still pending; and if not, whether the peri od         for  filing a special leave petition to this Court  had  e x-         pired.  We must accordingly overrule the views expressed in         Chandra Mohini’s, AIR 1967 SC 581 and Lila Gupta, cases (I LR         1969(1)  All  92).  We wish to add that  in  the  subseque nt         decision  in  Lila Gupta the Court while  dealing  with  t he         effect of deletion of the proviso observed:                  The  net  result is that now  since  the  amendme nt         parties  whose marriage is dissolved by a decree of  divor ce         can contract marriage soon thereafter provided of course t he         period of appeal has expired.         The  Court adverted to the word of caution  administered by         Wanchoo, J. in Chandra Mohini’s case and reiterated:         147                  "Even though it may not have been unlawful for  t he         husband to have marriage immediately after the High  Court ’s         decree for no appeal as of right lies from the decree of t he

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       High Court to this Court, still it was for the respondent to         make sure whether an application for special leave had  be en         filed in this Court and he could not, by marrying immediat e-         ly  after the High Court’s decree, deprive the wife  of  t he         chance of presenting a special leave petition to this Cour t.         If  a person does so, he takes a risk and could not ask  t he         Court to revoke the special leave on that ground,"         It is no doubt true that in these two decisions, this  Cou rt         was  considering  the impact of an appeal against  a  decr ee         under Section 13 itself and not a decree under Section 11 or         12 but as indicated earlier if the impact of the phraseolo gy         ’fight of appeal’ occurring in Sec. 15 is to be examined in         the light of language of Sec. 28 as discussed earlier  the re         will  be  no difference in respect of the  fight  of  appe al         whether the decree is under Sections 11, 12 or 13.             The  decisions  of the High Court on which  reliance is         placed  by  courts  below and the learned  counsel  for  t he         respondent are: i) Mohanmurari ii) Jam boo Prasad Jain,  a nd         Pramod Sharrna. In none of these decisions the impact of t he         fight of appeal occurring in Sec. 15 in view of the langua ge         of  Section 28 where the right of appeal is  conferred,  h as         been considered. In our opinion, therefore the view taken by         the High Court is not correct. What Section 15 means when it         uses  the phrase ’has been dissolved by decree of  divorce ’?         It  only means where the relationship of marriage  has  be en         brought to an end by intervention of court by a decree, th is         decree will include a decree under Sections 11, 12 or 13 a nd         therefore  the  view taken by all the courts  below  is  n ot         sustainable.  The contention of the learned counsel for  t he         appellant  has  to be accepted so far as  this  question is         concerned.             Learned  counsel  for the respondent contended  that as         Section 28 sub-clause (4) of the Act provides for the  lim i-         tation  for preferring an appeal in view of Sec.  29  clau se

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       (3). Provisions of Limitation Act will not apply and if th ey         do not apply as the trial court disposed of ’the matter by  a         decree  dated 3.5.1985 the period of limitation  for  appe al         could  only  be upto 3.6.1985 as the  period  for  obtaini ng         copies  as contemplated under Section 12 clause (2)  of  t he         Limitation Act will not be applicable and therefore even if         it  is  held that under Sec. 15 the respondent had  to  wa it         till the period of limitation for appeal expires         148         as  he entered into a marriage on 27.6.1985 it  was  clear ly         after  the  period of limitation has expired  and  therefo re         this marriage apparently made the appeal filed by the appe l-         lant  infructuous. It is not in dispute that if  the  peri od         for obtaining copy of the judgment and decree is computed as         contemplated in Section 12 clause (2) of the Limitation Ac t,         the appeal filed by the appellant before the first appella te         court was within the time and if Section 12 clause 2 is he ld         applicable then this marriage which the respondent perform ed         on 27.6.1985 could not be said to be a marriage which he w as         entitled  to perform in view of language of Section  15  a nd         therefore  it could not be said that this marriage  render ed         the  appeal  filed  by the  appellant  infructuous.  Learn ed         counsel  for  the respondent mainly placed reliance  on  t he         language  of Sec. 29 clause 3 of the Limitation Act  where as         learned  counsel appearing for the appellant contended  th at         Sec. 29 clause 3 talks of suit or proceedings and  therefo re         the  phrase ’proceedings’ used in clause 3 of Sec. 29  cou ld         only  refer  to suits or other original proceedings  and it         will not apply to appeals as is very clear from the  defin i-         tion of ’suit’ as defined in Section 2(L) of the  Limitati on         Act.  It was therefore contended that the provisions of  t he         Limitation  Act will be applicable to appeals under Sec. 28         of  the Act. Learned counsel for the appellant placed  rel i-         ance  on  the decisions in Chander Dev Chadha v.  Smt.  Ra

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ni         Bala,  AIR 1979 Delhi 22; Smt. Sipra Dey v. Ajit Kumar  De y,         AIR  1988 Calcutta 28 and Kanti-bai v. Karnal Singh  Thaku r,         AIR 1978 M.P. 245.         Section  2(L) of the Limitation Act defines the  ’suit’. It         reads:         "suit"  does  not include an appeal or an  application". It         clearly  enacts that suit does not include an appeal  or an         application. Sec. 29 of the Limitation Act reads:         "29. Savings (1) Nothing in this Act shall affect Section 25         of the Indian Contract Act, 1872.         (2) Where any special or local law prescribes for any  sui t,         appeal or application a period of limitation different  fr om         the  period  prescribed by the Schedule, the  provisions of         Section  3  shall apply as if such period  were  the  peri od         prescribed by the Schedule and for the purpose of  determi n-         ing any period of limitation prescribed for any suit, appe al         or  application by any special or local law, the  provisio ns         contained  in Sections 4 to 24 (inclusive) shall apply  on ly         insofar as, and to the extent to which, they are not         149         expressly excluded by such special or local law.         (3) Save as otherwise provided in any law for the time bei ng         in  force with respect to marriage and divorce,  nothing in         this  Act shall apply to any suit or other proceeding  und er         any such law.         (4)  Sections 25 and 26 and the definition of ’easement’ in         Section  2 shall not apply to cases arising in the  territ o-         ries  to  which the Indian Easement Act, 1882, may  for  t he         time being extend."         Clause  (2) of this Section provides that where the  limit a-         tion provided by the special or local law is different  fr om         the  period  prescribed by the Schedule, the  provisions of         Section 3 will apply. In the Hindu Marriage Act, the  peri od         of  appeal is prescribed. In the schedule under the  Limit a-         tion  Act,  there is no provision providing  for  an  appe al         under the Hindu Marriage Act. Thus the limitation prescrib ed         under  the Hindu Marriage Act is different and is  not  pr

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e-         scribed  in the Schedule. Thus the provisions of  Section  3         shall  apply and therefore it is clear that to an appeal or         application  the  provisions contained in Sections 4  to 24         shall apply, so far and to the extent to which they are  n ot         expressly  excluded by the special or local law  and  clau se         (3) of this Section provides that the provisions of this A ct         shall  not apply to any suit or other proceedings under  a ny         marriage  law. It is therefore clear that so far  as  clau se         (3)  is concerned, the impact of it will be that the  prov i-         sions of the Limitation Act will not apply so far as a  su it         or  an  original proceeding under the Act is  concerned  b ut         clause (3) will not govern an appeal.             The Schedule in the Limitation Act do not provide for an         appeal, under the Hindu Marriage Act but it is only provid ed         in clause (4) of Sec. 28 of the Hindu Marriage Act. Thus t he         limitation  provided in clause (4) of Sec. 28  is  differe nt         from  the  Schedule of the Limitation  Act.  Accordingly to         clause (2) of Sec. 29, provisions contained in Sections 4 to         24 will be applicable unless they are not expressly  exclu d-         ed.  It is clear that the provisions of the Act do  not  e x-         clude  operation  of provisions of Sections 4 to 24  of  t he         Limitation Act and therefore it could not be said that the se         provisions  will  not be applicable. It is  therefore  cle ar         that  to  an appeal under Section 28 of the  Hindu  Marria ge         Act,  provisions contained in Section 12 clause (2) will be         applicable, therefore the time required for obtaining copi es         of  the judgment will have to be excluded for computing  t he         period of limita-         150         tion  for  appeal. A Division Bench of Delhi High  Court in         Chandra Dev Chadha’s case held as under:         "The Hindu Marriage Act is a special law. That this "speci al         law"  prescribes"  for an appeal a period of  limitation is         also  evident. The period of limitation is 30 days. It is  a

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       period different from that prescribed in the First  Schedu le         to  the Limitation Act, 1963. But when we turn to the  Fir st         Schedule we find there is no provision in the First Schedu le         for  an appeal against the decree or order passed under  t he         Hindu Marriage Act. Now it has been held that the test of  a         "prescription  of a period of limitation different from  t he         period prescribed by the First Schedule" as laid down in S.         29(2),  Limitation  Act, 1963 is satisfied even  in  a  ca se         where  a difference between the special law  and  Limitati on         Act  arose  by omissions to provide for a  limitation  to  a         particular proceeding under the Limitation Act, see,  Cana ra         Bank,  Bombay v. Warden Insurance Co. Ltd. Bombay, AIR  19 53         Bom 35 (supra) approved by the Supreme Court in  Vidyachar an         Shukla v. Khubchand, AIR 1964 SC 1099 (1102).                  Once the test is satisfied the provisions of Ss, 3,         4  to  24, Limitation Act, 1963 would at once apply  to  t he         special law. The result is that the court hearing the appe al         from the decree or order passed under the Hindu Marriage A ct         would under S. 3 of the Limitation Act have power to dismi ss         the appeal if made after the period of limitation of 30 da ys         prescribed thereof by the special law. Similarly under S.  5         for  sufficient  cause  it will have the  power  to  condo ne         delay. Likewise under S. 12(2) the time spent in obtaining  a         certified copy of the decree or order appealed from will be         excluded.  If  it is so, S. 12(2) of the Limitation  Act is         attracted, and the appellants in all the three appeals  wi ll         be entitled to exclude the time taken by them for  obtaini ng         certified  copy  of the decree and order. The  appeals  ar e,         therefore, within time."         Similar is the view taken by the Calcutta High Court in Sm t.         Sipra Dey’s case and also the M.P. High Court in  Kantibai ’s         case. It is therefore clear that the contention advanced by         the  learned counsel for the respondent on the basis of  t he         Limitation Act also is of no substance.

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       151             Consequently the appeal is allowed. The judgment  pass ed         by the High Court as well as by the first appellate court is         set aside. We remand the matter back to the first  appella te         court  as that court had disposed of the appeal treating it         to have been rendered infructuous. We therefore direct  th at         the  learned lind Additional District Judge,  Nagpur  befo re         whom  the appeal was filed, will hear the appeal  on  meri ts         and dispose it of in accordance with law.             A  suggestion was made by the counsel for the  appella nt         about  some tests and willingness of the appellant for  ge t-         ting those tests performed which could be used as addition al         evidence  in respect of the paternity of the child  born to         the  appellant which has been made a ground for  declarati on         of  marriage as nullity. Without expressing any opinion, it         would  be appropriate for the lower appellate court to  co n-         sider  the matter if parties approach about additional  ev i-         dence.  The  appallant shall be entitled to  costs  of  th is         appeal. Costs quantified at Rs.2500.         R.S.S.                                 Appeal allowed.         152