Civil Application No.448 of 2014,Family Court Appeal No.142 of 2014

17th December, 2014.

Petitioner Counsel: Mr. ROBIN JAISINGHANI along with NIRMAN SHARMA i/b Ms. EDITH DEY
Respondent Counsel: Mr. R.T. LALWANI along with Mr. PRAKASH MAHADIK

Cases Cited:
Ashutosh Kumar Vs. Anjali Srivastava, AIR 2009 All 100 [Para 4,6]
S. Valli Vs. N. Rajendran, 2010 SCC OnLine Mad 1471 [Para 4,6]
Smt. Anuradha & Ors. Vs. Jitendra Dangwal, 2012 SCC OnLine Utt. 2810 [Para 4,6]
Sri. C.Govindraj Vs. Smt. Padmini, ILR 2009 Kar 21 [Para 4,5]
Adhyaatamam Bhamini Vs. Jagdish Ambalal Shah, 2007(1) ALL MR 990 (S.C.)=(2006) 13 SCC 686 [Para 4]
Adhyaatamam Bhamini Vs. Jagdish Ambalal Shah, 2007(1) ALL MR 990 (S.C.) [Para 4]
Savitri Pandey Vs. Prem Chandra Pandey, 2002(3) ALL MR 250 (S.C.)=(2002) 2 SCC 73 : AIR 2002 SC 591 [Para 10,17]
Sarwan Singh Vs. Kasturi Lal, AIR 1977 SC 265 [Para 17,19]
Shri. Ram Narain Vs. Simla Banking and Industrial Co. Ltd., 1956 SCR 603 : AIR 1956 SC 614 [Para 20]
Jose K.J. Vs. Mary Shiji, Dt.22/07/2010 [Para 23]
Dalsukhbhai Parsottambhai Patel Vs. Umaben Jorabhai Patel, Dt.11/8/2010 [Para 23]
Milan Laxman Tandel Vs. Laxman Keshav Tandel, C.Appl.88/2007, Dt.25/4/2007 [Para 23,24]
Mrs. Surekha Arun Sawant Vs. Mr. Arun Baban Sawant, F.C.A.23/2011, Dt.26/8/2011 [Para 23,24]

JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- What is the period of limitation for preferring an Appeal against a final order passed by the Family Court ? Is it 90 days as stipulated in Section 28(4) of the Hindu Marriage Act, 1955 vide amendment by Act 50 of 2003 which had come into force with effect from 23.12.2003 or is it 30 days as stipulated under Section 19(3) of the Family Courts Act ? This is the only question which arises for consideration before us in this application.

2. A brief reference to the vital facts in the background of which this question arises appears to be necessary and they are as under:

The applicant and the respondent are both Hindus and were married as per Hindu Vedic rites and ceremonies. Thereafter disputes arose between the parties and the applicant-wife filed Petition A-849 of 2011 before the Family Court at Mumbai seeking divorce on the ground of cruelty. The respondent-husband filed Petition No. D-68 of 2011 for custody of 2 minor daughters. Both the petitions were disposed of by common judgment and order dated 10.12.2013. By the said judgment and order Petition A-849 of 2011 was allowed and Petition D-68 of 2011 was dismissed. The respondent-husband has preferred Family Court Appeal No. 142 of 2014 challenging the common judgment and order dated 10.12.2013 passed by the learned Judge of the Family Court No.4, Mumbai whereby the wife's Petition No. A-849 of 2011 for divorce on the ground of cruelty came to be allowed. It is seen that the record clearly shows that certified copy of the order was applied on 13.12.2013, it was ready on 6.1.2014 and it was delivered on the next day i.e. on 7.1.2014. Family Court Appeal No. 142 of 2014 was filed on 7.2.2014. Thus, it is seen that the Family Court Appeal was filed after 30 days but within 90 days.

3. The applicant-wife has preferred present Civil Application No. 448 of 2014 in Family Court Appeal No. 142 of 2014 raising the ground that as the Family Court Appeal No. 142 of 2014 was not filed within 30 days as provided under Section 19 of the Family Courts Act, the Family Court Appeal is barred by law of limitation and the same be rejected.

4. Mr. Jaisinghani, the learned counsel for the applicant has placed reliance on the following decisions to support his claim that the period of limitation is 30 days as contemplated under Section 19 of the Family Courts Act of 1984 and not 90 days as contemplated under Section 28(4) of the Hindu Marriage Act, 1955. The said decisions are as under:-

1) Ashutosh Kumar Vs. Anjali Srivastava; AIR 2009 All 100;

2) S. Valli Vs. N. Rajendran; 2010 SCC OnLine Mad 1471;

3) Smt. Anuradha and Ors. Vs. Jitendra Dangwal; 2012 SCC OnLine Utt. 2810;

4) Sri. C.Govindraj Vs. Smt. Padmini; ILR 2009 Kar 21;

5) Adhyaatamam Bhamini Vs. Jagdish Ambalal Shah; (2006) 13 S.C.C. 686 : [2007(1) ALL MR 990 (S.C.) : 2007 ALL SCR 291];

The last decision of the Supreme Court in Adhyaatamam, [2007(1) ALL MR 990 (S.C.) : 2007 ALL SCR 291] (supra) would not be applicable to the facts of the present case because in the said decision, there is no reference at all to the Hindu Marriage Act, whereas the question before us essentially is whether the limitation as prescribed under the Family Courts Act will prevail or the limitation prescribed under the Hindu Marriage Act would prevail ? Such question did not come up for consideration before the Supreme Court and hence, this decision would not apply to the case of the applicant.

5. In the decision in the case of Sri. C. Govindraj (supra), the Court was considering the issue of court fees and it was not considering the issue whether the limitation under the Hindu Marriage Act or the limitation under the Family Courts Act would prevail ? Hence, this decision also would be of no help to the case of the applicant.

6. The decision in the case of Ashutosh Kumar (supra) is by the Allahabad High Court. The decision in the case of S. Valli (supra) is by the Madras High Court and the decision in the case of Smt. Anuradha (supra) is rendered by Division Bench of Uttarakhand High Court. These decisions at the most can only have persuasive value and cannot be said to be binding in nature on this Court.

7. It will be apposite at the outset to extract Section 19 of the Family Courts Act and Section 28 of the Hindu Marriage Act. Section 19 of the Family Courts Act reads as follows:

19. Appeal--(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973, (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):

Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment Act, 1991.)

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

(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.

(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges. (Emphasis supplied)

8. Section 28 of the Hindu Marriage Act reads as follows:

28. Appeals from decrees and orders--(1) All decrees made by the Court in any proceeding under this Act 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 every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under Section 25 or Section 26 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 exercise of its original civil 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. [Emphasis supplied]

9. It may be noted that under Section 28(4) of the Hindu Marriage Act, the period of limitation prescribed was 30 days and that stipulation was amended by Act 50 of 2003 with effect from 23/12/2003 to specify that the period of limitation shall be 90 days.

10. The history of that amendment shows that, the said amendment was necessitated by the observations of the Supreme Court in Savitri Pandey v. Prem Chandra Pandey, (2002) 2 S.C.C. 73 : (AIR 2002 SC 591) : [2002(3) ALL MR 250 (S.C.)]. We may straight away extract para 19 of the said judgment.

"19. 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 solemnize 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 solemnized 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 and Justice for such action as it may deem fit to take in this behalf".

11. It is thereafter that the Parliament brought in amendment under the Marriage Laws Amendment Act, 2003 which came into force with effect from 23.12.2003. The period of limitation for preferring appeals under the Hindu Marriage Act and the Special Marriage Act was raised from 30 days to 90 days by the Act. However, Section 19(3) of the Family Courts Act was not amended by the said Act.

12. The impugned order is passed by the Family Court. Going by the letter of Section 19(3) of the Act, it can be contended that the period of limitation is 30 days. Under Section 19 of the Family Courts Act, all orders (i.e. non-interlocutory orders) passed are appealable and the period of limitation prescribed under Section 19(3) applies to all appeals. In this view of the matter, 30 days is the period prescribed for filing an appeal against any appealable order passed by the Family Court.

13. The substantive piece of legislature clothing the Court with the jurisdiction for passing an order for divorce against a party to a Hindu marriage is the Hindu Marriage Act. Appealable orders passed by the Family Court would certainly include an order passed under Section 13 of the Hindu Marriage Act. The substantive provision providing for an appeal against such an order is Section 28 of the Hindu Marriage Act. Section 28(4) of the Hindu Marriage Act prescribes the period of limitation of 90 days.

14.First of all the principle that the special excludes the general must operate. There is no dispute on that proposition of law. It is trite and well settled that the special must exclude the general. But the question is which stipulation is general in nature and which stipulation is special. It must be noted that the amendments have been brought about, as per the Marriage Laws Amendment Act, 2003, that the period of limitation prescribed must be enhanced not only for appeals under Section 28(4) but also under Section 39 of the Special Marriage Act. The obvious purpose, it is evident, was to ensure that a larger period of limitation is available when appeal is against an appealable order in matrimonial causes. In that view of the matter also, it must be held that Marriage Laws Amendment Act deals with a special rule whereas Section 19 of the Family Courts Act deals only with a general stipulation.

15. Section 19(1) of the Family Courts Act relates to appeals against the decisions of the Family Court. Under the Family Courts Act several orders may be passed by the Family Courts but only certain orders i.e. non-interlocutory orders alone are appealable. Provisions of Section 19 would apply to all such non-interlocutory orders which the Family Court is in law entitled to pass. Whether under the Code of Civil Procedure, an appeal lies or not Section 19 mandates that an appeal shall lie to the High Court under Section 19. Thus, undoubtedly, provisions of Section 19(1) are general in nature and the special periods of limitation prescribed under the concerned special laws are special and it is the stipulations under the special legislation which must prevail.

16. Under Section 19 of the Family Courts Act, appeal can be preferred against any decision of the Family Court not being an interlocutory order. Under Section 28(4) of the Hindu Marriage Act the period of limitation is prescribed for orders passed under the Hindu Marriage Act. In this view of the matter, we are of the opinion that the stipulation of Section 19(3) are more general in nature inasmuch as they cover not only orders passed by the Family Court under the Hindu Marriage Act but cover all appealable orders passed in proceedings before the Family Court. The stipulations of Section 19(3) of the Family Courts Act being general in nature and Section 28(4) of the Hindu Marriage Act as amended being special in nature (in that they refer to one class of cases which fall under Section 19 of the Family Courts Act.) Stipulation of Section 28 of the Hindu Marriage Act in which the relevant sub-section (4) appears must be reckoned to be special more appropriate and specific, inasmuch as the said provision confers substantive right of appeal. Section 19(3) assumes a more general character. A substantive provision must get precedence over a procedural provision. The Hindu Marriage Act is the piece of substantive law which confers the power to pass the order in question and the right to prefer appeals. The Family Courts Act does not deal with substantive rights of the parties but only deals with the manner in which the matters coming within Section 7 of the Family Courts Act have to be dealt with and disposed of by the Family Courts. To this extent, it has to be held that the stipulations in the Hindu Marriage Act deal with substantive right of the parties and the substantive right of appeal whereas the stipulations in the Family Courts Act deal with procedural matters. On the principle that prominence and predominance must be given to the statutes dealing with substantive rights in preference to those dealing with procedural stipulations, the stipulation of the period of limitation in Section 28(4), we are satisfied, must be preferred.

17.It is necessary to consider the specific purpose, objects and reasons of the statute. The purpose and object of Marriage Laws Amendment Act 2003 must be taken into consideration and evidently the Marriage Laws Amendment Act was enacted in the light of the observations in paragraph 9 of Savithri Pandey, [2002(3) ALL MR 250 (S.C.)] (supra) which we have already extracted above. The purpose of amending section 28(4) obviously was the inconvenience and hardship noted by the Supreme Court in Savithri Pandey (AIR 2002 SC 591) : [2002(3) ALL MR 250 (S.C.)]. The Supreme Court observed that to prefer an appeal before the High Court against an order passed by the District Court, a period of 30 days may not be sufficient and that such a stipulation was causing injustice as was revealed in the facts of that case. The purpose of the Marriage Laws Amendment Act, by which Section 28(4) of the Hindu Marriage Act was amended, was obviously to give a larger period of limitation for the parties aggrieved by the orders passed in matrimonial cases under the Hindu Marriage Act and the Special Marriage Act. In this view of the matter, considering the purpose and object of the Act, it is evident that the period of limitation under Section 28(4) of the Hindu Marriage Act which amendment was brought in with effect from 23.12.2003 must be given prominence and predominance. The Supreme Court in Sarwan Singh Vs. Kasturi Lal (AIR 1977 SC 265) has observed that conflicts of this nature have to be resolved by reference to the object and purpose of the laws under consideration. We would like to refer to the following observations in para 20.

"Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration."

18. In our opinion, when two interpretations are possible about the period of limitation, the one stipulating a larger period of limitation is to be preferred. If the language is clear, express, precise and unambigious, it must be enforced, but where two interpretations are found to be equally possible, the Court may reasonably impute to the Legislature an intention to prescribe a larger period of limitation.

19. It is a sound principle of law that stipulations regarding limitation which take away the right to sue/ appeal must be strictly construed. Hence, when two interpretations are equally possible, the one prescribing a larger period of limitation can and ought to be preferred. We follow this principle of law and hold that in this view of the matter also, the larger period of limitation stipulated under Section 28(4) deserves to be accepted. The principle of law is well settled that when a later enactment prescribes a different period of limitation, such later enactment must be preferred. Of course, the Hindu Marriage Act was enacted in 1955. The Family Courts Act was enacted in 1984. But the crucial amendment to Section 28(4) was enacted later in 2003. The parliament must be presumed to have known the relevant stipulations of general nature in Section 19(3) while bringing in the amendment to Section 28(4). The Supreme Court in para 21 of Sarwan Singh Vs. Kasturi Lal (AIR 1977 SC 265) has observed as under:

"21. For resolving such inter se conflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which combine to give a fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one."

20. Thus, later enactment must prevail over the former. The same test was approved by the Supreme Court in Shri. Ram Narain V. Simla Banking and Industrial Co. Ltd. (1956 SCR 603) : (AIR 1956 SC 614). On the principle that the later enactment i.e. Marriage Laws Amendment Act, 2003 must prevail over the earlier enactment i.e. Family Court Act, the larger period of limitation prescribed under Section 28(4) of the Hindu Marriage Act must prevail. On the principle of equality under Article 14 of the Constitution of India also an identical period of limitation must be held to be applicable against all orders appealable under Section 28 of the Hindu Marriage Act. Merely because the order is passed by a District Court, a larger period of limitation i.e. 90 days and merely because the order is passed by the Family Court, a lesser period of limitation of 30 days would be unreasonable and will not stand the test of equality. The interpretation must be such that an identical period of limitation would be available for orders appealable under Section 28 of the Hindu Marriage Act- whether such order is passed by the District Court or the Family Court.

21.Thereafter the learned counsel for the applicant also raised the contention that in view of Section 20 of the Family Court Act in which there is non-obstante clause, the Family Court Act would prevail over the Hindu Marriage Act.

22. In the light of the above discussions, we hold that the period of limitation for an order/decree appealable under Section 28 of the Hindu Marriage Act is 90 days as stipulated under the amended Section 28(4) of the Hindu Marriage Act and not 30 days under Section 19(3) of the Family Courts Act. It follows that this appeal is not barred by limitation.

23. A similar view has been taken in the following decisions wherein after considering the Family Courts Act and the Hindu Marriage Act, it was held that the period of limitation under the Hindu Marriage Act would prevail. These decisions are as under:

(1) Unreported decision dated 22.07.2010 in the case of Jose K.J. Vs. Mary Shiji delivered by the Kerala High Court in unnumbered Matrimonial Appeal No. _of 2010,;

(2) Unreported decision in the case of Dalsukhbhai Parsottambhai Patel Vs. Umaben Jorabhai Patel dated 11.8.2010 delivered by Division Bench of the Gujarat High Court by Lordship Justice A.L. Dave as he then was and Justice S.R. Brahmbhatta);

(3) Unreported decision dated 25.4.2007 in the case of Milan Laxman Tandel Vs. Laxman Keshav Tandel rendered in Civil Application No.88 of 2007 in F.C.A. St. No. 8906 of 2007 with Civil Application No. 89 of 2007 in F.C.A. St. No. 8910 of 2007 by Division Bench of this Court (Coram: J.N. Patel and A.A. Sayed, JJ.);

(4) Unreported decision dated 26.8.2011 in the case of Mrs. Surekha Arun Sawant Vs. Mr. Arun Baban Sawant rendered by Division Bench of this Court (Coram: D.B. Bhosale and M.L. Tahaliyani, JJ) in Family Court Appeal No. 23 of 2011.

The last two decisions in the case of Milan Tandel and Surekha Sawant (supra) are by Division Benches of this Court. In the decision in the case of Milan Tandel (supra), a similar objection was raised, however, the Division Bench rejected the objections vide order dated 25.4.2007 making the following observations:

"The learned counsel for the applicant has drawn the attention of this Court to the amendment to the Hindu Marriage Act, 1955 which has been incorporated by the Marriage Law (Amendment) Act, 2003 and notified in the official gazette on 23.12.2003 wherein it is provided under Section 5, that in Section 28 of the Hindu Marriage Act, in Sub-Section (4), for the words "period of thirty days", the words "period of ninety days" shall be substituted which provides for appeal from decrees and orders made by the courts under any provisions of the Hindu Marriage Act, 1955. In view of this, the limitation provided under the special statute which would govern the field rather than provided under the Family Courts Act under Section 19, Chapter V, which provides for the period of limitation in respect of judgments and orders passed by the Family Court on the various subjects which the Family Court is competent to pass is in the nature of general provision and, therefore, the period of limitation provided under the Special Act would override the period of limitation provided under the Family Courts Act, 1894 and, therefore, as the appeals have been filed within a period of 90 days, they are to be held to be within limitation and, therefore, the objection does not survive and the applications for condonation of delay in filing the appeals are unwarranted as the appeals are filed within 90 days which is the period provided under Section 28 of the Hindu Marriage Act, 1955. The office is directed to register the appeals and list them for admission. S.O. to 3.5.2007."

24. The first two decisions relied upon by Mr. Jaisinghani are not applicable to the facts of the present case. The remaining three decisions which are pressed into service by Mr. Jaisinghani were rendered by Allahabad High Court, Madras High Court and Karnataka High Court, whereas the last two decisions in the case of Milan Tandel and Surekha Sawant (supra) are by Division Benches of this Court. We have already observed that the decisions by the Allahabad, Madras and Karnataka High Courts can at the most only have persuasive value.

25. We do not find any reason to take a different view from the one taken by the Division Bench of our Court in Milan Laxman Tandel's and Surekha Savant's cases. In view thereof, we reject the preliminary objection and hold that there is no delay in filing the appeal. In other words, we hold that the appeal having been filed within 90 days, as contemplated by Section 28(4) of the Hindu Marriage Act, is within limitation. Hence, there is no merit in this application and the same is rejected.

Ordered accordingly.