Civil Application No. 1095 of 2022
Chaudhary Chetnaben Dilipbhai v. Chaudhary Dilipbhai Lavjibhau
DATE OF ORDER:
17 January 2023
Justice AJ Desai
Justice Rajendra M Sareen
The learned High Court of Gujarat ruled that the time limit for filing the appeal challenging the judgment and order arising from the dispute between the husband and the wife covered under the Hindu Marriage Act, 1955 is of 90 days as provided by section 28(4) of the same Act. The period provided in section 19(3) is not to be preferred as the amendment to section 28(4) was brought at a later point in time and ‘a later enactment must prevail over the former.’
IMPORTANT LEGAL PROVISIONS
- Section 28(4) of Hindu Marriage Act- provides that every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.
- Section 19(3) of Family Courts Act- provides that 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.
BRIEF FACTS OF THE CASE
- The respondent i.e the husband had filed an application u/s 13 of Hindu Marriage Act for a decree of divorce on the ground of desertion.
- The decree of divorce was passed in the favour of the respondent.
- An appeal against the said order was preferred by the appellant i.e the wife after the expiry of the period of 30 days but before 90 days.
ARGUMENTS ADVANCED BY THE APPELLANT
- It is argued by the learned counsel for the appellant that the prescribed period of limitation in challenging the judgment and order passed by Family Court with regard to issue arising under the provision of Hindu Marriage Act is of 90 days as provided under Section 24(4) of the Hindu Marriage Act.
- That section 19 of Family Courts Act which provides for a 30 days period of limitation can not be given preference over section 28 of Hindu Marriage Act as amendment to HMA is a subsequent enactment. As such, it was argued that the appeal is not barred by limitation.
ARGUMENTS ADVANCED BY THE RESPONDENT
The learned counsel for the respondent submitted that appropriate order may be passed.
Whether the appeal in the present case is barred by limitation or not?
ANALYSIS BY THE COURT
- While adjudicating upon the matter, the Court observed that pursuant to the decision of the Apex Court in Savitry Pandey v. Prem Chandra Pandey [ AIR 2002 SC 591]. An amendment was brought to section 28(4) of HMA in 2003. The limitation period was increa from 30 days to 90 days by the amendment act.
- When the said amendment was brought, the legislature was well aware of the provision of section 19 of Family Courts Act which provides for a limitation period of 30 days.
- The Court took into account the observations made in Shivram Dodanna Sherry v. Sharmila Shivram Shetty [(2017) 1 Mh.L.J]. They include-
- In Savitri Pandey’s Case, the Apex Court 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.
- Pursuant to the said observations, section 28(4) was amended. Taking into account the object of the amendment act and also the fact that parliament was aware of the already existing section 19 of Family Courts Act, it is suggested that a harmonious interpretation which would advance the object and purpose of the legislation should be adopted.
- The substantive provision of law enumerated in section 28(4) of HMA was amended at a later stage and the same shall prevail being later in point of time.
- There is no clear inconsistency between the two enactments.
- Considering, the scheme of both the enactments and the purpose behind amending the provisions of Section 28 (4) of the Act of 1955, it would not be appropriate to apply different period of limitation, one in case of orders passed by the Family Courts and in another by the regular Civil Courts. Such an approach would frustrate very purpose of legislation.
- For the above stated reasons, for an application filed u/s 19 of Family Courts Act, limitation period prescribed u/s 28(4) of HMA shall be applicable.
The light of the above observations made, the learned Court concluded that since the appeal filed by the appellant is within the period of 90 days as prescribed by section 28(4) of HMA, the same is not barred by limitation.
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