Limitation for appeal under Family Courts Act is governed by S. 28...

Limitation for appeal under Family Courts Act is governed by S. 28 of Hindu Marriage Act, says Bombay HC Full Bench

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For an appeal filed under sub-section (1) of Section 19 of the Family Courts Act, 1984, period of limitation prescribed under sub-section (4) of Section 28 of the Hindu Marriage Act, 1955 shall apply. Therefore, the period of limitation for such an appeal would be 90 days (as provided under the Hindu Marriage Act) and NOT 30 days (as provided under the Family Courts Act). This has been held by a full bench of the Bombay high court, comprising Justices Naresh H. Patil, R. D. Dhanuka and Smt. Sadhana S. Jadhav on 1 December 2016. This judgment has been delivered in the case of Shri Shivram Dodanna Shetty v. Sou. Sharmila Shivram Shetty [Family Court Appeal No. 161 of 2013].

A question was framed by the Division Bench (Coram: Justices A. S. Oka and A. S. Gadkari) by an order dated 10/12/2014 to be decided by a larger bench, as under:

“Whether an appeal under sub-section (1) of section 19 of the Family Courts Act, 1984 will be governed by the period of limitation under sub-section (3) of section 19 or whether the period of limitation provided under sub-section (4) of section 28 of the Hindu Marriage Act, 1955 will apply to such Appeal?

This question was decided by a larger / full bench of the high court, as mentioned above.

The provision relating to limitation period for filing of appeals from decrees and orders is prescribed under Section 28(4) of the Hindu Marriage Act of 1955, which reads as under (after its amendment in 2003):

“(4) Every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.”

On the other hand, Section 19(3) of the Family Courts Act lays down the period of appeal as under:

“(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.”

Thus, Section 19(3) of the Family Courts Act prescribes a period of thirty days for filing appeal from every judgment or order not being an interlocutory order by Family Court to the High Court, both on facts and on law.

The full bench of the Bombay high court relied upon the fact that the provisions of Section 28 (4) of the Hindu Marriage Act of 1955 came to be amended consequent to the suggestion given by the Supreme Court in the case of Savitri Pandey vs. Prem Chandra Pandey, AIR 2002 SC 591. The Supreme Court had observed that period of limitation prescribed for filing appeal under Section 28(4) was apparently inadequate which facilitates frustration of the marriages by unscrupulous litigant spouses. The relevant observations of the Supreme Court in the above case as under:

“At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.” (Emphasis supplied)

The Bombay high court noted that consequent to the observations and suggestions given by the Supreme Court, quoted above, the Parliament amended the provisions of Section 28(4) of the Hindu Marriage Act, amending the limitation period from 30 days to 90 days.

The high court noted that while amending the provisions, the Parliament was aware of the existence of the Family Courts Act of 1984. It is presumed that the Parliament was conscious of the existence of another statute relating to the subject, prescribing forum and procedure and period of limitation. Therefore, a harmonious interpretation which would advance the object and purpose of the legislation will have to be adopted.

Therefore, the high court held that as the Hindu Marriage Act of 1955 was amended by the Parliament in the year 2003, in that sense, the period of limitation of 90 days was prescribed by a later law which would override the provisions relating to period of limitation prescribed in the earlier enactment i.e. the Family Courts Act of 1984. The substantive provision of law was amended at a later stage and the same shall prevail being later in point of time.

The high court also observed that even if both the Acts are considered on certain subjects and situations to be special and general, even then, as a matter of sound interpretation and keeping in view the purpose for providing a larger period of limitation, it must be construed that the appeals arising out of the judgment and orders passed by the Family Court shall be governed by a larger period of limitation prescribed under Section 28(4) of the Act of 1955. Any contrary interpretation would frustrate the very object of the enactment which was made on the suggestion of the Apex Court in the case of Savitri Pandey.

Accordingly, the full bench of the high court held that for an appeal filed under sub-section (1) of Section 19 of the Family Courts Act, 1984, period of limitation prescribed under sub-section (4) of Section 28 of the Hindu Marriage Act, 1955 shall apply.

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