Code: Section 39 – Appeals from Decrees and Orders
(1) All decrees made by the court in any proceeding under Chapter V or Chapter VI 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 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 37 or section 38 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 the exercise of its original 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.
Explanation of Section 39 – Special Marriage Act
Section 39 outlines the appeal rights related to decrees and specific orders issued by the court in matrimonial matters under the Special Marriage Act. It allows parties to challenge decisions passed under Chapter V (matrimonial reliefs) and Chapter VI (nullity and divorce), ensuring due process and higher judicial scrutiny.
This section ensures that litigants are not bound by first-instance decisions, especially in cases involving alimony, custody, and dissolution of marriage, but also avoids unnecessary delays by setting a time limit and restricting appeals on trivial matters like costs.
Key Provisions:
- Decrees passed under Chapter V or VI are appealable.
- Orders under Section 37 (Permanent Alimony) and Section 38 (Custody of Children) are appealable unless they are interim.
- No appeal can be filed solely on the question of costs.
- Appeals must be filed within 90 days from the date of the decree or order.
Illustration
Example 1: Appeal Against Divorce Decree
A husband receives a divorce decree passed under Chapter VI. He disagrees with the findings and seeks to appeal. As per Section 39(1), he can file an appeal in the appropriate appellate court within 90 days.
Example 2: Appeal Against Custody Order
After a divorce, the court grants custody of a minor child to the mother. The father believes this decision is not in the child’s best interest. Since this is a final (non-interim) custody order under Section 38, he may appeal the decision within 90 days under Section 39(2).
Common Questions and Answers on Section 39 SMA
Q1. Can a party appeal against a divorce decree under this section?
Yes. All decrees made under Chapter V or VI (e.g., divorce, judicial separation, annulment) are appealable under Section 39(1).
Q2. Are orders under Sections 37 and 38 always appealable?
Only non-interim orders under Sections 37 (permanent alimony) and 38 (custody, maintenance, education of children) are appealable. Interim orders cannot be appealed under this section.
Q3. Is there a time limit for filing an appeal?
Yes. Every appeal must be filed within 90 days from the date of the decree or order.
Q4. Can an appeal be filed over costs awarded by the court?
No. Section 39(3) specifically bars appeals filed solely on the subject of costs.
Q5. Where should the appeal be filed?
The appeal should be filed in the court that ordinarily hears appeals from the decisions of the court that issued the decree/order in the exercise of original civil jurisdiction—typically the district court or High Court, depending on the case.
Conclusion
Section 39 of the Special Marriage Act ensures that parties aggrieved by key decisions such as divorce, alimony, or child custody can seek redress through an appellate court. By setting clear guidelines and timelines, it strikes a balance between access to justice and the need for finality in family law proceedings.
For more expert guidance on matrimonial appeals and your legal rights, explore detailed resources at ApniLaw.
