Section 28 of the Hindu Marriage Act, 1955: Appeals from Decrees and Orders
Section 28 of the Hindu Marriage Act, 1955 (HMA) governs appeals against decrees and certain orders passed in matrimonial proceedings. It identifies which decisions may be appealed, the appellate forum and the statutory filing period.
- Decrees under the Act are generally appealable, subject to the statutory restrictions.
- Non-interim orders under Sections 25 and 26 may also be appealed.
- An appeal solely against costs is not permitted under Section 28.
- Section 28(4) prescribes 90 days; Family Court appeals also engage Section 19 of the Family Courts Act, 1984.
Section 28: statutory provisions explained
Section 28(1) - Appeals against decrees
Every decree made in a proceeding under the Hindu Marriage Act is, subject to subsection (3), appealable in the same manner as a decree made by a court exercising original civil jurisdiction. The appeal goes to the court that ordinarily hears appeals from that court.
Section 28(2) - Appeals against specified orders
Orders made under Section 25 (permanent alimony and maintenance) or Section 26 (custody of children) are appealable under this subsection if they are not interim orders, subject to subsection (3).
Section 28(3) - Costs-only appeals barred
No appeal lies under Section 28 where the challenge concerns only the award or amount of costs.
Section 28(4) - Time limit
An appeal under Section 28 must be preferred within 90 days from the date of the decree or order, subject to applicable rules on limitation and any legally permissible extension.
For the authoritative enacted wording and amendment notes, consult the official Hindu Marriage Act, 1955 (India Code PDF).
Which matrimonial decisions can be appealed?
Section 28(1) covers decrees made in proceedings under the Act, such as decrees granting or refusing divorce, judicial separation, restitution of conjugal rights or annulment, where the decision takes the form of a decree. Section 28(2) separately addresses eligible non-interim maintenance and child-custody orders.
| Decision | Relevant provision | General appeal position |
|---|---|---|
| Matrimonial decree | Section 28(1), HMA | Generally appealable, subject to statutory exceptions |
| Final permanent-alimony order | Sections 25 and 28(2), HMA | Appealable if not interim |
| Final child-custody order | Sections 26 and 28(2), HMA | Appealable if not interim |
| Interim order | Section 28(2), HMA; Section 19, Family Courts Act | Not automatically appealable; nature of the order and governing statute matter |
| Challenge concerning costs alone | Section 28(3), HMA | No appeal under Section 28 |
Appeals from Family Courts: Section 19 of the Family Courts Act
Where a Family Court has decided a matrimonial proceeding, the appeal provisions of the Family Courts Act, 1984 (official text) must also be considered. Section 19(1) generally provides for an appeal to the High Court on facts and law from a Family Court judgment or order that is not interlocutory. Section 19(2) excludes certain decisions, including consent decrees or orders. Section 19(3) states a 30-day period for appeals under that section, while Section 20 gives the Act overriding effect in cases of inconsistency.
Section 28(4) HMA specifies 90 days, whereas Section 19(3) of the Family Courts Act specifies 30 days. Their interaction has been addressed in judicial decisions and can depend on the nature of the proceeding and applicable binding precedent. Do not assume that every Family Court matrimonial appeal has an automatic 90-day filing window. Confirm the governing limitation rule and High Court practice promptly.
How to prepare a matrimonial appeal
- Identify the decision: determine whether it is a decree, a final order, an interim order or a consent order.
- Check the appellate forum: verify whether the decision was passed by a District Court or Family Court and identify the court competent to hear the appeal.
- Calculate limitation immediately: record the date of the decree or order, obtain certified copies and check applicable exclusion or condonation provisions.
- Prepare grounds of appeal: identify alleged errors of law, findings of fact or procedural irregularities supported by the record.
- Comply with filing rules: submit the memorandum of appeal, required documents, court fees and any stay or interim-relief application under the applicable High Court rules.
Filing an appeal does not, by itself, necessarily suspend operation or enforcement of the challenged decree or order. A stay should be sought where legally necessary.
Legislative history of Section 28
Section 28 was substituted by Section 19 of the Marriage Laws (Amendment) Act, 1976 (Act 68 of 1976), effective 27 May 1976. The limitation in Section 28(4) was subsequently changed from 30 days to 90 days by Section 5 of the Marriage Laws (Amendment) Act, 2003 (Act 50 of 2003), effective 23 December 2003. These changes are reflected in the official India Code text.
Frequently asked questions
What is Section 28 of the Hindu Marriage Act?
It is the provision governing appeals against decrees and specified non-interim orders made under the Hindu Marriage Act, 1955.
What is the appeal period under Section 28(4)?
The statutory period is 90 days from the decree or order. If the decision was made by a Family Court, the relationship with Section 19 of the Family Courts Act must also be examined.
Can an interim maintenance or custody order be appealed under Section 28(2)?
Section 28(2) specifically applies to orders under Sections 25 and 26 that are not interim orders. Any other remedy must be evaluated under the applicable statute and case law.
Can a party appeal only against litigation costs?
No. Section 28(3) expressly excludes appeals under that section on the subject of costs alone.