Unraveling Section 28 of the Hindu Marriage Act, 1955: Appellate Remedy, Limitation and Jurisdictional Dilemmas

Unraveling Section 28 of the Hindu Marriage Act, 1955: Appellate Remedy, Limitation and Jurisdictional Dilemmas

Introduction

Section 28 of the Hindu Marriage Act, 1955 (hereinafter “HMA”) constitutes the statutory gateway for appellate scrutiny of matrimonial decrees and certain orders. Although the provision appears procedural, it affects substantive rights: the choice of forum, the range of appealable orders, and, critically, the period of limitation. The provision has spawned extensive litigation, particularly after the enactment of the Family Courts Act, 1984 (“FCA”) and the insertion of sub-section (4) to Section 28 by the Marriage Laws (Amendment) Act, 2003. This article critically examines Section 28, analyses the competing judicial interpretations, and proposes a coherent doctrinal approach that harmonises the HMA with the Limitation Act, the FCA and allied provisions such as Sections 15 and 21 of the HMA.

Legislative Text and Historical Evolution

Originally, Section 28 conferred a right of appeal against “all decrees” and, subject to conditions, against certain orders “made by the court in any proceeding under this Act”. It remained silent on limitation, leaving limitation to the general law until the 1976 amendment, which added sub-section (4) prescribing thirty days to file an appeal. Judicial dissatisfaction with the brevity of this period (e.g., Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73, where the Supreme Court hinted that thirty days was “inadequate”) prompted Parliament to substitute the phrase “thirty days” with “ninety days” through Act 50 of 2003 with effect from 23 December 2003. The text therefore presently reads:

“28(4) Every appeal under this section shall be preferred within ninety days from the date of the decree or order.”[1]

Scope of Appealable Decrees and Orders

Decrees

Decrees under Sections 9 to 14-B HMA (restitution, judicial separation, divorce, nullity, etc.) are uncontroversially appealable.[2] Section 28 acts in pari materia with Section 96 CPC, but grants an autonomous statutory right, as clarified in Mrs Vera Aranha v. Jacob Harlad Aranha (1987 Bom.).[3]

Orders

Judicial discord centres on whether interlocutory or “routine” procedural orders attract Section 28. The Calcutta line beginning with Anita Karmokar v. Birendra Karmokar (1961) and followed in Mira Bose v. Santosh Kumar Bose (1972) confines appealability to substantive orders under Sections 24, 25 and 26 HMA, rejecting appeals against mere case-management directions.[4] Conversely, some High Courts (e.g., Kerala in S. V. Suhasini Devi, AIR 1989 Ker 314) have adopted a broader view, countenancing appeals where the impugned order substantially affects a party’s rights, such as refusal to condone delay. The restrictive Calcutta approach aligns with the object of expedition envisaged in Section 21-B HMA and is doctrinally preferable.

Forum of Appeal: Civil Courts Acts, Family Courts Act and Section 28

Pre-Family Courts Regime

Section 28 does not designate the appellate tribunal. Courts therefore resort to “any law for the time being in force”, namely State Civil Courts Acts. Illustratively, in R. P. Muniswamappa v. Eramma (AIR 1967 Mys 105) the High Court held that, because matrimonial relief cannot be monetarily valued, appeals from a Civil Judge lay to the High Court under Section 19(2) of the Mysore Civil Courts Act.[5]

Impact of the Family Courts Act, 1984

Section 19 FCA creates a sui generis appellate structure: appeals from “judgment or order, not being an interlocutory order” of a Family Court lie to the High Court within thirty days. This spawned a conflict with Section 28(4) HMA. Three interpretive models have emerged:

  • Model I – FCA overrides HMA: Ashutosh Kumar v. Anjali Srivastava (2009 All) holds that the 30-day limit in the FCA governs because it is later and more specific vis-à-vis Family Courts.[6]
  • Model II – HMA prevails as personal-law specific: Sonia Kunwar Singh Bedi v. Kunwar Singh Bedi (2014 Bom) reasons that Section 28(4), being part of the personal-law statute, constitutes a special provision vis-à-vis the general procedural rule in the FCA; hence ninety days subsists.[7]
  • Model III – Harmonious construction: Certain benches (e.g., Madras in S. Valli v. N. Rajendran 2010) read both statutes conjunctively: matrimonial appeals from Family Courts must be filed within 30 days, but the 90-day period applies where the original decree emanates from other courts. This approach accords primacy to institutional context.

The Supreme Court has not authoritatively resolved this conflict. A purposive reading—aligned with constitutional guarantee of effective appeal—ought to prefer Model II: personal-law specificity and the later amendment (2003) evidence legislative intent to grant parties a longer window, especially where decrees may dissolve long-standing marital ties and property rights.

Limitation Computation and the Limitation Act, 1963

Section 28(4) is a “special period of limitation” within Section 29(2) Limitation Act. Accordingly, Sections 4 to 24 of the Limitation Act apply unless expressly excluded. The Supreme Court in Lata Kamat v. Vilas (1989) 2 SCC 613 ruled that time required to obtain certified copies must be excluded under Section 12(2) Limitation Act, notwithstanding the special period in Section 28(4).[8] The Madhya Pradesh High Court reiterated this in M.P. SEB v. Pandey Construction (2005) in the broader context of special statutes.[9]

Condonation of Delay and Second Marriage during Appeal Period

The marital status of parties during the pendency of an appeal often intersects with Section 15 HMA (bar on remarriage until appeal period expires). In Dr Lokeshwari v. Dr Srinivasa Rao (2000 AP) the Court held that where delay in filing appeal is condoned, the appeal is treated as “filed in time”, rendering a second marriage during the interregnum irrelevant to appellate competence.[10] The Kerala High Court in S. V. Suhasini Devi (supra) adopts the same stance. Madhya Pradesh High Court, however, in Sadan Kumar Chaurasia v. Indira Bai (1995) observes that Section 15 does not “control” Section 28; contracting a second marriage does not vitiate the appeal.[11] A consistent thread is that the appellate right is preserved; the second marriage only exposes the appellant to possible bigamy prosecution should the appeal succeed.

Appeals against Maintenance and Interim Orders

Orders under Section 24 HMA (maintenance pendente lite) are expressly appealable where they are “not interim orders.” The qualifier has divided courts:

  • Kode Kutumba Rao v. Kode Sesharatnamamba (1966 AP) treats refusal of maintenance as appealable because it affects substantive rights.[12]
  • Pratima Sen Gupta v. Sajal Sen Gupta (1997 All) and Rajasthan High Court in Mahesh Bhardwaj (AIR 1995 Raj. 47) hold that interim maintenance orders are interlocutory and hence not appealable; the proper remedy is revision.
  • The Gauhati High Court in Uttam Nandi v. Momi Nandi (2008) entertained an appeal against a Section 24 order, implicitly endorsing a broader reading.

Given the welfare objective underpinning Section 24 and the constitutional mandate of gender justice (Articles 14, 15(3), 21), a liberal appealability test better safeguards prompt relief while ensuring accountability.

Interplay with Section 21-B: Expeditious Disposal

The 1976 amendment inserted Section 21-B mandating day-to-day trial and disposal within six months. Yet appellate delays undermine this objective. High Courts have lamented protracted appeals, e.g., Delhi High Court in Kusum Sharma v. Mahinder Kumar Sharma (2014) which emphasised judicial discipline in matrimonial litigation and swift resolution.[13] Accordingly, appellate courts should employ calibrated case-management: discourage frivolous interlocutory appeals, yet entertain substantive grievances under Section 28 to prevent miscarriage of justice.

Doctrinal Synthesis and Proposed Approach

  1. Personal-Law Primacy: Section 28(4)’s ninety-day period constitutes a later, specific legislative determination vis-à-vis the thirty-day term in Section 19(3) FCA. On the principle lex specialis derogat legi generali, it should prevail for matrimonial decrees irrespective of the forum of first instance.
  2. Limitation Act Integration: By force of Section 29(2) Limitation Act, Sections 4-24 apply, ensuring exclusion of copy-supply time and permitting condonation under Section 5 for sufficient cause. This reconciles strict timelines with equitable discretion.
  3. Narrow Construction of “interlocutory”: An order materially affecting substantive rights (maintenance, custody, conjugal status) should be deemed appealable, whereas orders of pure procedure (adjournments, summons) are not.
  4. Judicial Guidance on Second Marriage: Courts must clarify that pendency of a time-barred yet condonable appeal keeps the marital status sub judice; remarriage undertaken at peril of Section 494 IPC.

Conclusion

Section 28 HMA, though seemingly procedural, shapes the substantive destiny of matrimonial litigants. The ninety-day appeal period—when read with the Limitation Act—strikes a pragmatic balance between finality and fairness. Persisting forum and limitation conflicts, especially under the FCA, demand early authoritative pronouncement by the Supreme Court or legislative clarification. In the interim, High Courts should adopt a purposive, rights-oriented interpretation that furthers the constitutional ethos of gender equality and access to justice while respecting the legislative intent of expedition in family disputes.

Footnotes

  1. Hindu Marriage Act, 1955, s 28(4) (as amended by Marriage Laws (Amendment) Act, 2003).
  2. Nandkishore v. Munnibai, 1978 SCC OnLine MP 146.
  3. Mrs Vera Aranha… v. Jacob Harlad Aranha…, Bombay High Court, 1987.
  4. Anita Karmokar v. Birendra Karmokar, AIR 1962 Cal 88; Mira Bose… v. Santosh Kumar Bose…, 1972 Cal HC.
  5. R.P. Muniswamappa v. Eramma, AIR 1967 Mys 105.
  6. Ashutosh Kumar v. Anjali Srivastava, 2009 SCC OnLine All 237.
  7. Sonia Kunwar Singh Bedi v. Kunwar Singh Bedi, 2014 SCC OnLine Bom 4605.
  8. Lata Kamat v. Vilas, (1989) 2 SCC 613.
  9. M.P. State Electricity Board v. Pandey Construction, 2005 MP.
  10. Dr Lokeshwari v. Dr Srinivasa Rao, Andhra Pradesh High Court, 2000.
  11. Sadan Kumar Chaurasia v. Indira Bai, 1995 MP HC.
  12. Kode Kutumba Rao v. Kode Sesharatnamamba, 1966 AP HC.
  13. Kusum Sharma v. Mahinder Kumar Sharma, Delhi High Court, 2014.