Section 28 Appeals and Section 28A Enforcement under the Hindu Marriage Act 1955
Sections 28 and 28A of the Hindu Marriage Act, 1955 deal with two connected stages of matrimonial litigation: the right to appeal from specified decrees and orders, and the manner in which decrees and orders passed under the Act are enforced.
What Section 28 of the Hindu Marriage Act provides
Section 28 is the statutory provision governing appeals from decrees and certain orders made in proceedings under the Hindu Marriage Act. In simple terms, it identifies what can be appealed, where the appeal ordinarily lies, what cannot be appealed merely on the question of costs, and the time allowed for filing the appeal.
Section 28(1): Appeals from decrees
All decrees made by the court in proceedings under the Hindu Marriage Act are, subject to Section 28(3), appealable in the same manner as decrees made by that court while exercising original civil jurisdiction. The appeal lies to the court to which appeals ordinarily lie from decisions of that court in its original civil jurisdiction.
Section 28(2): Appeals from orders under Sections 25 and 26
An order made under Section 25 concerning permanent alimony and maintenance, or under Section 26 concerning custody, maintenance and education of minor children, is appealable if the order is not an interim order. The appeal lies to the court that ordinarily hears appeals from the original civil decisions of the court passing the order.
Section 28(3): No appeal on costs alone
Section 28 does not provide an appeal where the only subject of the proposed appeal is costs.
Section 28(4): 90-day limitation for appeal
Every appeal under Section 28 is to be preferred within 90 days from the date of the decree or order. The statutory text should therefore not be read as prescribing the former 30-day period.
Which court hears an appeal under Section 28?
Section 28 does not name one appellate court for every case in India. Instead, the appeal lies to the court to which appeals ordinarily lie from the original civil decisions of the court that passed the decree or appealable order. The proper appellate forum therefore depends on the court of original jurisdiction and the applicable court structure.
At a glance
| Provision | Effect |
|---|---|
| Section 28(1) | Decrees under the Act are appealable, subject to Section 28(3). |
| Section 28(2) | Non-interim orders under Sections 25 and 26 are appealable. |
| Section 28(3) | No appeal under Section 28 on the subject of costs only. |
| Section 28(4) | Appeal is to be preferred within 90 days from the date of the decree or order. |
| Section 28A | Decrees and orders under the Act are enforced like decrees and orders made in original civil jurisdiction. |
Section 28A: Enforcement of decrees and orders
Section 28A deals with execution and enforcement. It provides that decrees and orders made by a court in proceedings under the Hindu Marriage Act are to be enforced in the same manner as decrees and orders made by that court in the exercise of its original civil jurisdiction.
This provision connects matrimonial decrees and orders with the ordinary civil enforcement machinery. The procedural steps required in a particular case will depend on the nature of the decree or order and the applicable law and procedure governing its execution.
Difference between appeal and enforcement
An appeal under Section 28 challenges an appealable decree or qualifying order before the competent appellate court. Enforcement under Section 28A, on the other hand, concerns giving effect to a decree or order already made by the court. The two provisions therefore address different procedural stages.
Related provisions
Section 28 should be read with the provision under which the original relief was granted. For example, Section 25 concerns permanent alimony and maintenance, while Section 26 concerns custody, maintenance and education of minor children. Section 23 deals with decrees in proceedings under the Act.
Official statutory source
For the current central statutory text, see the Hindu Marriage Act, 1955 on India Code. The official text records the 90-day period in Section 28(4) and Section 28A on enforcement.
Legal information: This article explains the statutory provisions in general terms. Court forum, limitation computation, maintainability and execution procedure can depend on the facts, the order involved and applicable procedural law.