Section 28 of The Hindu Marriage Act (HMA) | Appeals from decrees and orders

Synopsis

• Bare Act: The exact text of Section 28 and 28A of the Hindu Marriage Act.
• Introduction: Brief overview of the Hindu Marriage Act and the importance of appeals.
• Meaning/Definition/Explanation: Explanation of Section 28 and 28A in simple terms.
• Interpretation: Legal interpretation of the provisions with judicial insights.
• Types/Classifications: Types of decrees and orders that can be appealed.
• Case Law: Relevant judicial precedents explaining the application of Section 28.
• Multiple Choice Questions: Practice questions for All India Bar Exam preparation.
• Questions to Think About: Reflective questions to deepen understanding.

Bare Act

Section 28. Appeals 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 appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.

Section 28A. Enforcement of decrees and orders.
All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being in force.

Introduction

Sometimes in life, court decisions may not seem fair or satisfactory. Thankfully, law gives a chance to appeal and get the decision reviewed. Section 28 of the Hindu Marriage Act talks about when and how parties can file an appeal against decrees and orders passed under the Act.

Whether it’s a divorce, maintenance, or child custody decision — if someone feels that justice was not served, they can file an appeal to a higher court. This right to appeal is very important for ensuring fairness and justice in personal matters.

Meaning / Definition / Explanation

Section 28 of the Hindu Marriage Act is all about appeals. An appeal is when you ask a higher court to review a lower court’s decision because you think it’s wrong. This section says:

• If a court passes a final decision (called a decree) in a case under the Hindu Marriage Act (like divorce, nullity, judicial separation), then the aggrieved party can file an appeal in the higher court.
• If the court has passed an order related to maintenance (Section 25) or custody of children (Section 26), such orders can also be appealed — but only if they are final orders, not interim (temporary) ones.
• No appeal is allowed if the issue is only about costs (like who should pay court fees).
• The time limit to file an appeal is 90 days from the date of the decree or final order.

Section 28A is about enforcement. It says that any decree or order made under this Act (like paying maintenance or following a custody order) must be enforced in the same way as other civil court orders. For example, if someone doesn’t pay maintenance as ordered, the court can take action like seizing their property or bank account to make sure the order is followed.

Interpretation

Section 28 ensures that people have a fair chance to challenge a court’s decision if they believe it’s unfair or legally incorrect. The courts interpret this section to balance two things: giving people the right to appeal and preventing unnecessary delays in justice. For example, the Supreme Court in Anil Kumar Jain v. Maya Jain (2009) clarified that the 90-day period for filing an appeal is strict, and courts don’t usually extend it unless there’s a very good reason (like serious illness or unavoidable circumstances). This shows the law’s intent to ensure quick resolution of disputes.

The restriction on appealing “costs only” (Section 28(3)) means you can’t go to a higher court just to argue about who pays the lawyer’s fees. Also, “interim orders” (temporary decisions during the trial) are not appealable, which helps the process move faster. This reduces frivolous appeals and saves court time. Section 28A makes sure that court orders aren’t ignored. For instance, if a husband is ordered to pay maintenance but refuses, the wife can approach the court to enforce it, just like any other civil court order.

Judicial opinions also emphasize that appeals under Section 28 must be filed in the court that normally handles appeals from the lower court. For example, if a family court in a district passes a divorce decree, the appeal usually goes to the High Court of that state.

Types / Classifications

Section 28 deals with two main types of court decisions that can be appealed:

1. Decrees: These are final decisions in cases like:
   • Divorce (Section 13)
   • Judicial separation (Section 10)
   • Restitution of conjugal rights (Section 9)
   • Annulment of marriage (Section 12)
2. Orders: These are specific decisions under:
   • Section 25: Permanent alimony or maintenance (money one spouse pays to the other after divorce or separation).
   • Section 26: Custody, education, or maintenance of children.

Note: Temporary (interim) orders, like temporary maintenance or temporary custody, cannot be appealed under this section. Also, no appeals are allowed if the dispute is only about court costs.

Case Law

Here are two important cases that explain how Section 28 works:

1. Anil Kumar Jain v. Maya Jain (2009): The husband wanted to appeal a divorce decree but filed it after the 90-day period. He asked for an extension, saying he was trying to settle the matter outside court. The Supreme Court said the 90-day limit under Section 28(4) is strict. Only in exceptional cases (like serious illness) can it be extended. The appeal was dismissed because the delay wasn’t justified. This case shows that you need to act fast if you want to appeal a decision under the Hindu Marriage Act.
2. Savitri Pandey v. Prem Chandra Pandey (2002): The wife appealed a divorce decree, arguing that the lower court’s decision was wrong. The Supreme Court allowed the appeal and examined the evidence again. It emphasized that appeals under Section 28 allow the higher court to check if the lower court made any legal or factual errors. This case highlights that Section 28 gives higher courts the power to correct mistakes in lower court decisions.
3. Krishna Bhattacharjee v. Sarathi Choudhury (2016): The Supreme Court clarified that even after divorce, maintenance under Section 25 can be claimed and if refused unfairly, appeal can be filed.
4. Inderjit Kaur v. State of Haryana (1997): The court emphasized that interim orders are not open for appeal under Section 28.

Multiple Choice Questions (for All India Bar Exam Preparation)

1. Under Section 28 of the Hindu Marriage Act, which of the following can be appealed?
   a) Interim maintenance orders
   b) Final divorce decrees
   c) Orders related to court costs only
   d) All temporary orders
   Answer: b) Final divorce decrees
2. What is the time limit for filing an appeal under Section 28?
   a) 30 days
   b) 60 days
   c) 90 days
   d) 120 days
   Answer: c) 90 days
3. Which section of the Hindu Marriage Act deals with the enforcement of decrees and orders?
   a) Section 25
   b) Section 28
   c) Section 28A
   d) Section 26
   Answer: c) Section 28A
4. Can you appeal a court’s decision on costs alone under Section 28?
   a) Yes, always
   b) No, never
   c) Only if the costs are very high
   d) Only with the court’s permission
   Answer: b) No, never
5. To which court should an appeal under Section 28 be filed?
   a) Supreme Court directly
   b) The court that handles appeals from the original court
   c) Any district court
   d) Family court in another state
   Answer: b) The court that handles appeals from the original court
6. Which of the following orders are NOT appealable under Section 28?
   a) Final decree for divorce
   b) Interim order for maintenance
   c) Final order for child custody
   d) Final order under Section 25
   Answer: b) Interim order for maintenance
7. Appeals from decrees under the Hindu Marriage Act lie to:
   a) District Magistrate
   b) Supreme Court directly
   c) The court which hears regular civil appeals
   d) Village Panchayat
   Answer: c) The court which hears regular civil appeals

Questions to Think About

1. Do you think 90 days is a fair enough time to file an appeal in family matters?
2. What could happen if someone could appeal just the court costs? Would that make the legal system better or worse?
3. How does Section 28A ensure that court orders, like maintenance, are actually followed in real life?
4. Should interim orders (like temporary maintenance) also be appealable? Why or why not?
5. How does Section 28 balance the need for fairness with the need to avoid unnecessary delays in family disputes?
6. What happens if someone misses the 90-day appeal window — should there be any relaxation?