Hindus can remarry 90 days after divorce: Bombay HC

A bench of the Bombay high court on Friday resolved a conflict in the provisions of the Hindu Marriage Act, 1955 and the Family Courts Act, 1984, that dealt with time periods for filing appeals against such decrees.

A Hindu can marry again after 90 days of the decree dissolving his or her marriage, if no appeal has been made against the decree, the high court said on Friday.

The issue had cropped up in an appeal filed by a Thane resident challenging the decree of divorce issued by the family court in Thane on a petition filed by his estranged wife. (Rep pic/HT photo)

A bench of the Bombay high court on Friday resolved a conflict in the provisions of the Hindu Marriage Act, 1955 and the Family Courts Act, 1984, that dealt with time periods for filing appeals against such decrees. The bench comprising Justice Naresh Patil, Justice RD Dhanuka and Justice Sadhana Jadhav held that the appeal period would be 90 days — as charted in the 1955 Act.

“While discussing the provisions of the two enactments, it needs to be considered that we are a country with a vast population and millions face financial hardships to litigate a matter. People spend a considerable amount of time, money and energy,” said the bench while leaning in favour of a longer appeal period.

The conflict had arisen as the Hindu Marriage Act, 1955, provides a 90-day period for preferring an appeal, the Family Courts Act provides 30 days after issuance of the decree, and therefore, a reference had been made to the full bench.

In January this year, a division bench of Justice Abhay Oka and Justice Ajay Gadkari had referred to the acts after refusing to accept another division bench’s view that was made in April 2007 where they said that the provisions of the Hindu Marriage Act, 1955, will prevail over the provisions of the Family Courts Act, 1984 as regards the appeal period.

The period of limitation for preferring an appeal assumes importance in the context of Section 15 of the Hindu Marriage Act, 1955 which says that when a marriage has been dissolved by a decree of divorce, it becomes lawful for either parties to marry again, provided the period of limitation for filing an appeal is over and no appeal is preferred against the decree within the prescribed period.

The issue had cropped up in an appeal filed by a Thane resident challenging the decree of divorce issued by the family court in Thane on a petition filed by his estranged wife. The decree was issued on April 22, 2013 and the husband filed the appeal in the high court on July 3, 2013. The woman remarried six days later – within the 90 days from the date of issuance of the decree.

Apart from challenging the decree issued by the Thane court, the husband had also raised objections to the validity of the woman’s second marriage. The wife’s advocate, Nitin Dalvi, had opposed the contention and pointed out the April 2007 decision of another bench of the high court holding that the period of limitation for filing an appeal would be 90 days, as provided under the Hindu Marriage Act, 1955.

Justice Oka and Justice Gadkari, had however, refused to accept the view. “As an appeal is the creation of a statute, the same will be governed by the period of limitation provided in the statute which creates the appeal,” the bench had said, referring to the fact that the family court appeal was an extension of the Family Courts Act, 1984, and therefore he appeal period would be 30 days, as provided in it.

Apart from challenging the decree issued by the Thane court, the husband had also raised objections as to validity of the woman’s second marriage. The wife’s advocate, Nitin Dalvi, had opposed the contention and pointed out the April 2007 decision of another bench of the high court holding that the period of limitation for filing an appeal would be 90 days, as provided under the Hindu Marriage Act, 1955.

The bench of Justice Oka and Justice Gadkari, had however, refused to accept the view. “As an appeal is creation of a statute, the same will be governed by the period of limitation provided in the statute which creates the appeal,” the bench had said, referring to the fact that the family court appeal was a creation of the Family Courts Act, 1984, and therefore appeal period would be 30 days, as provided in it.

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