The answer to this question is in affirmative, Hindu can Re-marry after 90 days of divorce. The issue was put to rest by the full bench of Bombay High court comprising Justices Naresh Patel, R D Dhanuka and Sadhana Jadhav in 2016 in the matter of Shivram Dodanna Shetty Vs. Sharmila Shivram Shetty[1].
Issue Involved In The Case-
The reproduction of the relevant provisions is stated below for the sake of convenience-
Section 19(1) and 19(3) of The Family Court Act, 1984-
19(1)- Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. -(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.”
19(3)-Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
Section 28(4) of The Hindu Marriage Act, 1955
28(4) Every appeal under this section shall be preferred within a 90 [period of ninety days] from the date of the decree or order.
The perplexing issue before the court was whether an appeal under the section 19(1) of The Family Courts Act, 1984, the period of limitation would be governed by the provisions of 19(3) of the Act or section 28(4) of The Hindu Marriage Act, 1955, in other words which Act will have prevalence over the other.
Section 19(1) of The Family Courts Act, 1984 mandates that an appeal shall lies from the order or judgement of a Family Court to High Court, whereas 19(3) of the Act prescribes limitation as to duration of appeal of 30 days, on the other hand section 28(4) of The Hindu Marriage Act, 1955 laid downs limitation as to duration of appeal of 90 days. The question before the court was which Act will prevail.
Decision of the Court-
After the conspectus of arguments raised and authorities advanced by the counsels, the court came to the conclusion that section 28(4) of The Hindu Marriage Act will have primacy over 19(3) of The Family Courts Act, 1984 owing to the following reasons-
- It is the principle of rule of interpretation that if a construction leads to a conflict, whereas on another construction, both the Act can be harmoniously construed then the effect should be given to the latter so that legislative objective and purpose should be fulfilled and advanced without any conflict.
- General Law can’t impliedly abrogate special law. The provisions of The Hindu Marriage Act, 1955 being a special Law will override the provisions of The Family Court Act, 1984 being a general law.
- In Savitri Pandey vs. Prem Chandra Pandey[2], it was recommended that the limitation period prescribed by section 28(4) of The Hindu Marriage Act, 1955 facilitating frustration of marriage and unscrupulous litigant practices, be extended to 90 days, taking into account the plight of the litigants, geographical conditions and the limited resources. The changes were incorporated through a 2003 amendment by parliament, since it is presumed that when a parliament legislates, it does so with the knowledge of other statute hence when the 2003 amendment was incorporated, it was never the intention to give The Family Courts Act, 1984 primacy over The Hindu Marriage Act, 1955.
- The non obstante provision isn’t intended and can’t effect impliedly repealing provisions made in the law i.e. the Hindu Marriage Act, 1955.
Conclusion
Therefore it can be concluded that a Hindu can Re-Marry after 90 Days of Divorce, the only limitation is that the limitation for filing an appeal is over or the appeal as been dismissed as mandated by section 15 of The Hindu Marriage Act, 1955. Since the time for filing an appeal is 90 days and hence once the 90 days duration is over a Hindu can marry lawfully again after divorce. However there is a exception to this rule, if a divorce has taken place through a mutual consent then the limitation period need not be complied with.
[1] 2016 SCC Bom 9844
[2] AIR 2002 SC 591
This article is authored by Devashish Tiwari student of BBA LLB at JIMS, School Of Law
Also Read – What Are The Essential Conditions Of A Valid Hindu Marriage Under HMA, 1955?
