Appeals, Enforcement and Transfer under the Special Marriage Act

A matrimonial decree is not the end of the road. The Special Marriage Act provides for appeals from decrees and certain orders, for enforcing decrees in the same way as civil decrees, and for trying cross-petitions together so that the same marriage is not litigated in two courts. This note covers sections 39, 39A and 40A, the role of the Family Courts Act, and the Supreme Court's approach to transfer petitions.

1. Appeals: Section 39

What is appealable, and when

Figure 1: What is appealable, and when

Decrees, s.39(1). All decrees in proceedings under Chapter V or VI are appealable as decrees of the court in its original civil jurisdiction.
Orders, s.39(2). Orders under s.37 (permanent alimony) or s.38 (custody, maintenance and education of children) are appealable if they are not interim orders.
Costs, s.39(3). There is no appeal on the subject of costs only.
Limitation, s.39(4). Every appeal must be preferred within ninety days from the date of the decree or order.
Family courts. Where a family court passes the decree, an appeal lies to the High Court under s.19 of the Family Courts Act, 1984, which prescribes thirty days. Courts have differed on whether that period or the ninety days under this Act applies.
Remarriage. The right to remarry arises only when the decree becomes final, after the appeal period or the dismissal of the appeal (s.30; Topic 20)

2. Enforcement: Section 39A

Rule. All decrees and orders in proceedings under Chapter V or VI are enforced in the same way as decrees and orders of the court in its original civil jurisdiction, that is, by execution under the CPC.
Maintenance arrears. In Rajnesh v Neha (2020), the Supreme Court confirmed that maintenance orders may be enforced as money decrees, including by attachment and civil detention (Topic 22)
Restitution. A restitution decree may not be enforced by detention (Order XXI Rule 32 CPC; Topic 10)

3. Transfer: Section 40A

Cross-petitions for separation or divorce

Figure 2: Cross-petitions for separation or divorce

Purpose. Where one spouse files for judicial separation or divorce and the other then files a petition of either kind, s.40A ensures both are decided together, avoiding conflicting decrees.
CPC transfers. Other transfers are governed by ss.24 and 25 of the CPC, the latter allowing the Supreme Court to transfer cases between States.

Figure 3: The Supreme Court on transfer petitions

⚠ Exam trap

Decrees under Chapters V and VI are appealable as original decrees; orders under ss.37 and 38 only if not interim; no appeal lies on costs alone. The period is ninety days (s.39(4)). Decrees are enforced like civil decrees (s.39A). Under s.40A, cross-petitions for separation or divorce are tried together, the later being transferred to the court of the earlier. In transfer petitions, the wife's convenience weighs (Sumita Singh, 2001); video conferencing needs both parties' consent (Santhini, 2018).

4. Frequently Asked Questions

What is the limitation for appealing a decree under the Special Marriage Act?

Ninety days from the date of the decree or order, under s.39(4). Where the decree is passed by a family court, the appeal lies to the High Court under s.19 of the Family Courts Act, and courts have differed on whether its thirty-day period applies instead.

Is an interim custody order appealable?

No. Section 39(2) makes orders under ss.37 and 38 appealable only if they are not interim orders. An interim order may, however, be challenged by other means available in law, such as a revision or a petition under Article 227.

5. Related Topics

Topic 21: Jurisdiction and Procedure. The trial court.
Topic 20: Remarriage after Divorce, Section 30. When the decree becomes final.