The amended provision in Section 28 (4) of the Hindu Marriage Act, 1955, which reduced the period of limitation for appeals to 30 days, was retrospective in operation due to the express provision in Section 39 (1) (i) of the Marriage Laws (Amendment) Act, 1976.

( 1 ) THIS matter has been referred to a Full Bench under the provisions of Rule 3 of Chapter VII of the Appellate Side Rules by a Bench consisting of Anil K. Sen and B. C. Chakrabarti, JJ.

( 2 ) ON August 14, 1974 the respondent in this appeal instituted Matrimonial Suit No. 375 of 1974 (since renumbered as Matrimonial Suit No. 24 of 1976) in the 9th Court of the Additional District Judge at Alipore against the appellant. In the plaint a decree for judicial separation was originally claimed. Later on, the plaint was amended and a decree for divorce was asked for.

( 3 ) ON May 27, 1976 the Marriage Laws (Amendment) Act, 1976 came into force amending certain provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

( 4 ) ON July 19, 1977 the trial court passed a decree for divorce.

( 5 ) ON September 6, 1977 the present appeal was preferred.

( 6 ) SECTION 28 of the Hindu Marriage Act, 1955, as it originally stood, was as follows:--"all decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force; provided that there shall be no appeal on the subject of costs only. "

( 7 ) IN view of the above provisions the appeal to this Court was covered by Article 116 of the Limitation Act, 1963 which provided for a period of 90 days from the date of the decree which was a decree under the Code of Civil Procedure, 1908 and the appeal was to the High Court from that decree.

( 8 ) THE above Section 28 of the Hindu Marriage Act, 1955 was amended by the said Amendment Act. The amended Section 28 (4) ran thus:"every appeal under this section shall be preferred within a period of 30 days from the date of the decree or order. "

( 9 ) IN the instant appeal the Stamp Reporter took the view that the amended provision noted above would not be applicable because the proceeding out of which the appeal arose was instituted before the amendment. According to the Stamp Reporter the amendment had no application to pending proceedings. He computed limitation on the basis of Article 116 of the Limitation Act, 1963 and made a report that the appeal was presented in time.

( 10 ) AT the time of preferring the appeal an application under Section 5 of the Limitation Act was also made by the appellant. But on the basis of the Stamp Reporter's report, M. M. Dutt and R. K. Sharma, JJ. allowed the appellant petitioner to withdraw the application under Section 5 of the Limitation Act.

( 11 ) THE respondent then appeared and made an application raising a dispute that the appeal was barred by limitation. The respondent also prayed that the po:nt of limitation should be decided as a preliminary issue.

( 12 ) THE Stamp Reporter made his report relying on a decision of N. C. Mukherji and B. C. Ray, JJ. in F. M. A. T-No. 372 of 1977 (since renumbered as F. M. A. No. 506 of 1977 ). This Division Bench has held that there is no retrospective force in the amended Act and the right of appeal being a substantive right, the time for preferring an appeal would be governed by the law as it stood before the amending Act came into force.

( 13 ) THE respondent's application raising the question of limitation came up for hearing before Anil K. Sen and B. C. Chakrabavti, JJ. This Division Bench was unable to agree with the previous Division Bench on the issue of limitation. That is why the present reference was made. The following questions have been referred to us:1 Whether in view of Section 39 (1) (i) of the Marriage Laws (Amendment) Act, 1976, the view expressed by the learned Judges N. C. Mukherji and B. C. Ray that there is no retrospective force in the amending Act is a correct proposition of law? 2. What would be the period of limitation for presenting an appeal under Section 28 of the Hindu Marriage Act wher