SMT. LATA KAMAT versus VILAS

Citation: [1989] 2 S.C.R. 137 · Decided: 29-03-1989 · Supreme Court of India · Bench: G.L. OZA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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SMT. LATA KAMAT 
v. 
VILAS 
MARCH 29, 1989 
[G.L. OZA, ANDS. RA1NAVEL PANDIAN, JJ.] 
Hindu Marriage Act 1956: Sections I I, 12, 13 and 28-Decree 
of nullity and decree of divorce--Distinction between-Marriage 
declared nullity-Wife filing appeal-Husband marrying after trial 
Court decree but before the filing of the appeal-Appeal whether 
rendered infructuous 
Indian Limitation Act 1963: Sections 4, 24 and 29-Applicability 
of provisions of Act to an appeal under section 28 Hindu Marriage Act 
1956-...-Time required for obtaining copies of judgment to be excluded. 
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B 
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A decree in favour of the respondent-husband was granted by the D 
Trial Court declaring his marriage with the appellant to be a nullity 
under section 12(l)(d) of the Hindu Marriage Act, 1956 on the ground 
that the wife at the time of marriage was pregnant by some one other 
than the respondent. In the appeal filed by the appellant, the respon· 
dent raised a preliminary objection contending that the appeal was not 
tenable and had been rendered infructuous because he had re-married E 
before the filing of the appeal. The Appellate Court allowed the pre-
liminary objection and dismissed the appeal, and the High Court dis-
missed the second appeal. 
Before this Court it was contended on behalf of the appellant that 
(i) the word 'divorce' has been used in section 15 in a broader sense F 
and, in view of the language used in that section, it is not possible to 
distinguish between a decree of nullity under section 11 or 12 and 
decree of divorce under section 13; (ii) the interpretation put by the 
lower courts, on the basis of judgments of some 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 
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correct as the scope and language of section 15 coupled with the 
language 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 had re-married after the period of 
limitation had expired, as the provisions of the Limitation Act will not 
apply in view of the section 29(3) of that Act, and therefore the period 
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137 
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B 
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138 
SUPREME COURT REPORTS 
[19891 2 s.c.~. 
for obtaining copies of the judgnient excluded under section 12 clau'se 
(;?),will not be available to the appellant. · 
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Allowing the appeal, it was, 
HELD: (I) It is no doubt true that section 12 and section 13 havl} 
different phraseology. In section 12 it is said that the "marriage may he 
annulled by a decree of nullity" whereas in section 13, the phraseology 
used is "dissolved by a decree of divorce". Though in substance the 
meaning of the two may he different under the circumstances and on the 
facts of each case, but the legal meaning or the effect, is . that hy 
intervention of the court the relationship between two spouses has been. 
severed either in accordance with the provisions of section 12 or in 
accordance with the provisions of section 13. Probably it is because of ...l 
this reason that the phrase 'decree of nullity' and 'decree of divorce' 
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have not been defined. [l·BA-B] 
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(2) Under the provisions· of section 28 all decrees made by the 
Court in any proceeding under this Act are appealable. In order to 
provide an appeal against all decrees section 28 bas used a very wide 
terminology which includes decrees under sections 11, 12 and 13, and so 
far as this is concerned it could hardly he contested as the language of 
section 28 itselfis so clear. [143G-H] 
, (3) If it is accepted tha_t Section 15 will not apply to cases when a 
decree is passed nnder section 11 or 12, it will mean that as soon as a 
decree is passed the party aggrieved may appeal hut the other party by 
remarriage would make the appeal infructuous and therefore the right 
. of appeal of one of the parties to the decree under section 28 will he 
subject to the act of the other party in cases where decree is passed 
under section U or 12. But if it were so, the Legislature would have 
provided a separate provision for appeal when there is a decree under 
section 13 and a different provision for appeal when there is a decree 
under section 11 or 12 as the right of appeal against a decree under 
section 11 or 12 could only he a limited right subject to the desire of the 
other party. [14411; 145A-B] 
( 4) The Legislature in its wis

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