SidChiBharg (Software) 27 May 2013

Appeal of family court order in high court (hc)

Hi Friends,

My estranged wife had filed for divorce u/s 13 of HMA. I opposed it and fought very hard. The Hon'ble Family Court has awarded her 1 yr. Judicial Separation instead of divorce. The Hon'ble Family Court has not accepted her petition in the present form and further concluded that "of all the incidents of physical and mental cruelties mentioned by the petitioner she was able to establish only one incident of mental cruelty and that too partly".

I am going in for appeal in High Court against the Family Court order. Since the very begining I had searched various websites and was of the view that the period of appeal has been increased from "Thirty days" to "ninenty days" by an amendment [Act 50 of 2003]. Also my thinking was since the petition had been filed by my wife u/s 13 of HMA so the appeal would lie u/s 28 of HMA in which the period of appeal had been amended by the Central Govt. from "thirty days" to "ninety days". Last month I met an eminent lawyer from HC and he was of the same view.

But last week again I met some other lawyers in HC and they explained me the concept "if the order given by the Family Court is to be appealed in the High Court then it is to be done under Family Court Act for which the period of appeal is "thirty days" and has not been amended AND further is the order has been given by the district court or the court of sessions then the appeal would be under the Hindu Marriage Act (HMA) for which the period of appeal has been amended from "thirty days" to "ninety days" by an amendment Act 50 of 2003". So there was an utter confusion created in my mind and I was very coolely thinking till now that I would file an appeal within 90 days as per section 28 of HMA. I was very overconfident of this. But after this explanation of Rajasthan HC lawyers now I have understood the concept but where is this mentioned? A person would think that appeal would lie under HMA. How does Family Court Act come into the picture? The petition of divorce is made in the Family Court where does the petition of divorce filed in district or sessions court? The petition of divorce is filed under HMA and the appeal would lie under Family Court Act ? The lawyers themselves admitted that this is very confusing.

My Query:
==========

1) Now since my appeal is time barred by about 1 1/2 month. So as told by my HC lawyer I would need to file an application u/s 5 of the Limitation Act. I have been told that the appeal woudl lie in Double Bench (DB). So now what reasons can I give in section 5 ?

- Can I give this very reason which I have mentioned above? But then I have been told that it an accepted fact that "ignorance of law is no defence". But then I feel this is a very valid and very genuine reason. Can't this reason work or be accepted by HC Judge?

- I can't give the reason of my illness as I was going to office.

- Can I give the reason that I was not able to get leaves from my office (I live in a different city that the HC).

- Can I give reason of my parents illness?

What other reason(s) can be given so that application u/s 5 be accepted.

Please Please let me know the reasons which I can put forward in front of DB and which could be accepted given the scenario in which I am in. Are they any judgments which I can give in support of my reasons? What else can be done.

I am planning to appear as PIP.

Thanks and Regards,
Sid.

Reply Follow

14 Replies

(Guest)

Your wife doesn`t want to live with you and has filed for divorce and got judicial separation.

What are you hoping to achieve by appealing judgement?Are you hoping to live with her?

Shantanu Wavhal (Worker) 27 May 2013

family courts / CJSDs are given jurisdiction to try HMPs.

the decrees are u/s 28 of HMP.

appeal period earlier was 30 days & now is 90 days.

if wife failed to prove her allegations, why r u going to appeal ?

what exactly do u want to achieve ?

want to bring her back ? RCR ?

SidChiBharg (Software) 27 May 2013

Originally posted by : red
	Your wife doesn`t want to live with you and has filed for divorce and got judicial separation. What are you hoping to achieve by appealing judgement?Are you hoping to live with her?

There are various reasons for my appealing the HC judgment. Firstly, I don't agree to the obesrvation of the Hon'ble Family Court Judge wherein he has given that she was able to prove one incident of mental cruelty and that too partly. There was no mental cruelty on the girl and this observation is also wrong. Secondly, my 498a/406 case is pending and the girl wants to get divorce without closing the cases. This is a contested divorce. After getting divorce she would be a free bird but me and my famiy members would be stuck in the cases. Thirdly after getting divorce she would be putting a petiton u/s 25 HMA for alimony and have a second marriage and enjoy her alimony.

Adv k . mahesh (advocate) 27 May 2013

1) Now since my appeal is time barred by about 1 1/2 month. So as told by my HC lawyer I would need to file an application u/s 5 of the Limitation Act. I have been told that the appeal woudl lie in Double Bench (DB). So now what reasons can I give in section 5 ?

If you can show a proper reason why due are late in filing the appeal the court will consider the case for hearing

- Can I give this very reason which I have mentioned above? But then I have been told that it an accepted fact that "ignorance of law is no defence". But then I feel this is a very valid and very genuine reason. Can't this reason work or be accepted by HC Judge?

No

- I can't give the reason of my illness as I was going to office.

You got proof to show her mental cruelty

- Can I give the reason that I was not able to get leaves from my office (I live in a different city that the HC).

You can show that reason

- Can I give reason of my parents illness?
some time it will accept and some times it will no

What other reason(s) can be given so that application u/s 5 be accepted.
other city is best option

Please Please let me know the reasons which I can put forward in front of DB and which could be accepted given the scenario in which I am in. Are they any judgments which I can give in support of my reasons? What else can be done.
SEarch in India Kanoon

I am planning to appear as PIP.

you can contest

(Guest)

@SID

1In any marriage there is cruelty to each other...So you can`t say there has never been cruelty to her from your side

2)Her getting divorce weaknes the 498A and it`s in your favour.

3)If she can enjoy her second marriage,so can you.

If she compounds the 498A/406 and wants no alimony,then you are happy to agree to divorce.I suppose that`s pressure tactics and I hope it works.

SidChiBharg (Software) 27 May 2013

Originally posted by : Amit---------------
	family courts / CJSDs are given jurisdiction to try HMPs. the decrees are u/s 28 of HMP. appeal period earlier was 30 days & now is 90 days. if wife failed to prove her allegations, why r u going to appeal ? what exactly do u want to achieve ? want to bring her back ? RCR ?

So you are trying to say that I would need to file appeal u/s 28 HMA? Are you are trying to say that my period of limitation has not expired and I am withing period of limitation? BUT my HC lawyer say's otherwise he says that we need to file appeal u/s 19 of Family court act. for which appeal period is 30 days. It's very confusing.

Wife failed to prove her allegation but the Family Court Judge observerd that she has succeeded in proving one incident of mental cruelty and that too partly. So I want to appeal to prove this very incident also wrong. I want to get her divorce petition dismissed as if she gets divorced then she would be a free bird and marry her boyfriend and then file for alimony. She wants to get the cases (498a/406) going on us while she lives a free life after divorce. No No I don't intend to bring her back

(Guest)

@sid

You say you don`t want her back

Can you clarify under what circumstances would you give her divorce?

SidChiBharg (Software) 27 May 2013

Originally posted by : red
	@sid You say you don`t want her back Can you clarify under what circumstances would you give her divorce?

When she agrees to take her case (read 498a/406) back and dosn't ask for alimony.

(Guest)

Fair point.But if she has a bf,why don`t you get proof for it

Shantanu Wavhal (Worker) 27 May 2013

these can help you

Attached File : 354527981 gangadhar rakhamaji vs manjulal gangadhar on 29 october, 1958.pdf, 354527981 smt. basanti bose vs civil judge (senior division) and ... on 22 june, 2000.pdf downloaded: 119 times

SidChiBharg (Software) 27 May 2013

Originally posted by : Amit---------------
	these can help you

hi Amit,

I am not able to view/download these files. Could you please give their titles so that I can download from the net OR please do see these might not be opening because of broken links.

pun (eng) 27 May 2013

Sid, you can take these from there.

https://www.indiankanoon.org/doc/306371/

https://www.indiankanoon.org/doc/1402143/

have a heart foundation (member) 27 May 2013

Incase you are aggrieved... you should file the appeal.. let the court decide about the time limitaion period.

Law of limitation:-

The Code of Civil Procedure confers a right to appeal, but does not prescribe a period of limitation for filing an appeal. The Limitation Act, 1963, however, provides the period of filing up appeals. It states that the appeals against a decree or order can be filed in a High Court within ninety days and in any other court in thirty days from the date of the decree or order appealed against.

It is for general welfare that a period be put on litigation. Further, it is a general principle of law that law is made to protect only diligent and vigilant people. Equity aids the vigilant and not the indolent. Law will not protect people who are careless about their rights. (Vigilantibus non domientibus jur A subventiunt). Moreover, there should be certainty in law and matters cannot be kept in suspense indefinably. It is, therefore, provided that Courts of Law cannot be approached beyond fixed period. In civil matters, the limit is provided in Limitation Act, 1963.

The 'Law of Limitation' prescribes the time-limit for different suits within, which an aggrieved person can approach the court for redress or justice. The suit, if filed after the exploration of time-limit, is struck by the law of limitation. It's basically meant to protect the long and established user and to indirectly punish persons who go into a long slumber over their rights.

The statutory law was established in stages. The very first Limitation Act was enacted for all courts in India in 1859. And finally took the form of Limitation Act in 1963.

A citizen is not expected to master the various provisions which provide for limitation in different matters but certain basic knowledge in this regard is necessary. For instance, Section 12 of the Limitation Act lays down certain guidelines regarding computation of limitation period. It says that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.

Further, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from shall be excluded. However, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.

Section 14 of the act, similarly, says that in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting in civil proceedings, whether in a court of first instance or of appeal or revision against the defendant shall be excluded where the proceedings relate to the same matter in a court which is unable to entertain it on account of defect of jurisdiction or other cause of a like nature.

What does limitation period mean?
The law prescribes different periods within which a person who has a grievance should go to court. For example, if somebody has borrowed your money and not returned it, you should approach the court within three years from the date you lent the money. If you don't go to the court within that time, the courts will not be of help to recover your money. This is called the limitation period. After the limitation period, you cannot enforce your rights in a court. The Limitation Act 1963prescribes different limitation periods for different kinds of claims. Some other Acts such as the ConsumerProtection Act also prescribe limitation periods

In the bare act:-
Bar of limitation (1) Subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as defense;

(1) For the purposes of this Act,
(a) A suit is instituted,

(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue is a pauper is made; and

(ii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of a set-off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-

(i) in the case of a set-off, on the dame date as the suit in which the set off is pleaded;

(ii) in the case a counter claim, on the date on which the counter claim is made in court;

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.

Short title, extent and commencement - (1) This Act may be called the Limitation Act,1963.

2. It extends to the whole of India except the State of Jammu and Kashmir.
3. It shall come into force on such date as the Central Government may be notification in the Official Gazette, appoint.

BAR OF LIMITATION – Subject to provisions of sections 4 to 24 of the Act (i.e. Limitation Act),every suit instituted, appeal preferred and application made after the ‘prescribed period’ shall be dismissed, although limitation has not been set up as a defence. [section 3(1)]. - - ‘Period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the schedule to the Act and ‘prescribed period’ means the period of limitation computed as per provisions of the Act. [section 2(j)].

PERIOD AS PRESCRIBED IN SCHEDULE TO THE ACT – The period has been prescribed in Schedule to the Act. Generally, it is as follows – (a) 3 years for a suit relating to accounts, contracts, declarations, decrees, suits relating to movable property, recovery of law suit under a contract etc. (b) 12 years for suits relating to possession of immovable property and 30 years for mortgaged property (c) One year for suit relating to torts (3 years for compensation in certain cases (d) 30 to 90 days in case of appeals under Civil Procedure Code and Criminal Procedure Code. - - Period of filing appeal and application can be extended if proper cause is shown (but not the suit) [section 5].

IF COURT IS CLOSED ON LAST DAY – If court is closed on last day of limitation, suit, appeal or application can be filed on next day when Court reopens. [section 4].

CONTINUOUS RUNNING OF TIME – When once period of limitation starts running, it continues even if there is any subsequent disability or inability to institute a suit or make an application. [section 9]. - - However, if at the time when person is entitled to file a suit or make application, if a person was disabled (as he was minor or insane), the period of limitation will start after the disability is removed. [section 6(1)].

A misjoinder of parties or of cause of action shall be deemed to be a cause of a like nature mentioned above. Under Section 15 of the act, the time during which an injunction or restraint order issued by a court remains in force, is to be excluded while computing the period of limitation for any suit or application for the execution of a degree. In cases, where the previous consent or sanction of the government or any other authority is required under the law, the time required for obtaining such consent or sanction shall be excluded. Where a defendant has been absent from India, the time during which he has been absent can be excluded from the period of limitation.

In case, the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted on the day when the court reopens, as provided under Section 4 of the act. This is based on the principle "actus curial neminem gravabit", which means that an act of court shall not prejudice any one. The court can condone the delay, if satisfied that it causes were beyond the control of the plaintiff too.

Condonation of delay Rule 3-A:-
Condonance may be made when an accuser has previously forgiven or condoned (in some way or at some level) the act about which they are complaining. In some legal jurisdictions, and for certain behaviours, it may prevent the accuser from prevailing.

Rule 3-A has been inserted by the Amendment Act of 1976. It provides that where an appeal has been presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application that the applicant has sufficient cause for not preferring the appeal within the time.

Prior to the insertion of rule 3-A, the practice was to admit such an appeal subject to the opinion regarding limitation. This practice was disapproved by privy – council, and it stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation before admission of appeal. This rule is added to give effect to give effect to the recommendation of the privy council.

As observed by the Supreme Court in the State of M.P v. Prandeep Kumar, the object of the provision is two-fold; frstly to inform the appellant that the delayed appeal will not be entertained unless it is accompanied by an application accompanying the delay; and secondly, to communicate to the respondent that it may not be necessary for him to get ready on merits as the court has to first deal with an application for condonation of delay as a condition precedent. The provision is, however, directory not mandatory. If the memorandum of appeal is filed without an accompanying application for condonation of delay the consequence is not necessarily fatal. The defect is curable.

Judicial Actions:
Raj Bahadur Singh & Another v. D.J. & Others(Civil Misc.Writ Petition No.12718 of 2002) :
According to the learned Judge the application 4-Ga had been rejected on two grounds firstly being barred by limitation and secondly being without any valid ground. Thus, the appeal filed by the respondents was fully maintainable. He further submitted that the learned District Judge vide order dated11.2.2002 had admitted the appeal while over ruling the preliminary objections and the writ petition filed by the petitioners is not maintainable.

In the present case the question is as to whether an appeal lies against an order passed by the trial Court wherein it had by a common order rejected both the applications under section 5 of the Limitation Act and Order9 Rule 13 C.P.C. on the ground that the application is barred by Limitation and no ground for condonation of delay has been made out, or a revision lies. If it is held that no appeal lies then the order admitting the appeal is wholly without jurisdiction and in such a circumstance a writ petition is maintainable.

State of Jammu and Kashmir v/s Ghulam Rasool Rather
J&K Limitation Act, S. 3 – Condonation of delay - Sufficient cause - What amounts to - On the facts of the case, held that the cause shown was reasonable and satisfactory - Delay condoned.
The expression "sufficient cause" in section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to deliberate tactics, but seek their remedy promptly. While considering a case for condonation of delay, the court must always remember that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not sufficient to turn down his plea and shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. The discretion exercised in the matter of condonation of delay should be proper and judicious.

Conclusion:
Thus we can understand from the above examples that law of Limitation and Condonation of Delay are two effective implementations in the quick disposal of cases and effective litigation. On the one hand if the law of limitation keeps a check on the pulling of cases and prescribes a time period within which the suit can be filed and the time available within which the person can get the remedy conveniently. The law of Condonation of Delay keeps the principle of natural justice alive and also states the fact that different people might have different problemas and the same sentence or a singular rule may not apply to all of them in the same way. Thus it is essential to hear them and decide accordingly whether they fit in the criteria of the judgement or whether they deserve a second chance.

SidChiBharg (Software) 28 May 2013

Dear members

I have already prepared the draft of the appeal and would soon present in a couple of days to HC. Please do suggest me more based on the circumstance of my case. First Step would be to see if the Appeal comes in "Defect" for delay. And if it does then I need to give good enough reasons for condonation of delay.

Please do let me know the good enough reasons based on which HC would condone the delay.

Thanks and Regards,

Sid.