Is SLP an appeal?

SLP is in continuation to earlier proceeding and thus can be regarded as an appeal so husband should wait for mandatory waiting period before marrying and in case hehas performed immediately after the judgment of High Cort then he has to face its consequences.

SLP NOT APPEAL. IT IS SPECIAL LEAVE PETITION. SC CAN GRANT A SPECIAL LEAVE U.A 136.

WHERE DIVORCE AND SECOND MARRIAGE IS CONCERNED, THE CONDITION IS THE OTHER PARTY SHALL HAVE NO SCOPE TO APPEAL OR FILE A PETITION FURTHER. IN THIS SENSE THE SLP WILL BE TREATED HERE AS EQUAL TO AN APPEAL.

Hello,

SLP denotes Special Leave Petition.  SLP is not an appeal.  The result in the SLP leads to appeal before the Supreme court.  In the case of remarriage, one has to wait till the mandatory appeal time to see whether there is any appeal filed.

L. Vinoba,

Advocate,

Pondicherry.

Thank you all for your responses! Would like to understand what could be the consequences in case of a re-marriage in the appeal period? Can a situation of infructusness of the petition set in and allow the second marriage? Or will the court void the second marriage? Will it be also depend upon what the opposite party wants?

I have a fundamental question here.....................

 

'A divorce (ex-parte) from family court and then seconded by high court to get remarried immediately................

 

Isn't there whole lot of proceedings after ex-parte decree?

 

Isn't there probability (technically) to get the petition dismissed after ex-parte decree?

 

Under what circumstances/procedures, the HC is seconding the ex-parte?

 

Is 'Mr suhas more' saying that there was appeal filed by the opposite party after ex-parte decree and HC dismissed appeal?

 

mandatory waiting period of 30 days (appeal) or 90 days (review/revision)?

 

Why can't the court specify in the decree itself about the mandatory waiting period?

 

If court can restrict any person from travelling overseas,in the interest of justice, why can't it 'legally restrain' the person for mandatory waiting period?

Could someone help me with the period for which the person should wait before getting remarried? I would also like to know of the consequences in case the 2nd marriage happens before finishing of the "waiting period"? Before replying, request you to keep in mind that the matter is likely to be up for appeal now in the Supreme court....Family court and HC have already approved the decree.

 

Thanks a lot!

Suhas

To clarify further...when i say, the HC has also approved the decree, it means the HC has dismissed the appeal against he family court ex-parte decree

after exparte decree Bar period to marry is 90 days.But if the OP has gone within appeal period to High court.Then one has to wait till High court disposes the case.If The OP has not gone to High Court.Then one has to wait for 90 days and marry after that 2nd marriage is valid.Now if OP has Gone to High court during the apeal period and high court has dismissed the apeal against exparte order .Then one can marry after informing the court.Its a guess.I am sure better qualified person can answer it for our learning.

Thanks Mr Dash for your reply. Can somebody second this or does any body has another opinion about it?

what was the ground on which the apeal got rejected in the high court .

aflatoon

on the grounds of merit. HC maintained that Family court decision was correct in light of the fact that sufficient time was given to the opp party to file a reply (post service of petition copy), but they didn't. That cruelty was genuinely meted out and that is a valid ground for divorce....

thx .I was just inquisitive.

aflatoon

SLP is NOT appeal

one can not get remarried till SLP / appeal in SC gets disposed.

 

3 bench ruling
Supreme Court of India
Kunhayammed & Ors vs State Of Kerala & Anr on 19 July, 2000

The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two
steps : (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly
demonstrated by the provisions of Order XVI of the Supreme Court Rules framed in exercise of the
power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave
to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in form
No.28. No separate application for interim relief need be filed, which can be incorporated in the
petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to
serve the notice on the respondent. The petition shall be accompanied by a certified copy of the
judgment or order appealed from and an affidavit in support of the statement of facts contained in
the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex-parte
unless there be a caveat. The court if it thinks fit, may direct issue of notice to the respondent and
adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave
petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave or interim
orders without filing any written objections. He shall also be at liberty to file his objections only by
setting out the grounds in opposition to the questions of law or grounds set out in the S.L.P.. On
hearing the Court may refuse the leave and dismiss the petition for seeking special leave to appeal
either ex-parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special
leave, the petition for special leave shall, subject to the payment of additional court fee, if any, be
treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall
then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition
seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of
the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is
as under :-

 

1. While hearing the petition for special leave to appeal, the Court is called upon to see whether the
petitioner should be granted such leave or not. While hearing such petition, the Court is not
exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or
not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter
the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his
petition for special leave;

 

2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the
Court that a case for invoking appellate jurisdiction of the Court was not made out;

 

3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for
entry in appellate arena is opened. The petitioner is in and the respondent may also be JJ called
upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the court
may dismiss the appeal without noticing the respondent.

 

4. In spite of a petition for special leave to appeal having been filed, the judgment, decree or order
against which leave to appeal has been sought for, continues to be final, effective and binding as
between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or
order appealed against is put in jeopardy though it continues to be binding and effective between the
parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the
operation or execution of the judgment, decree or order under challenge.