Bombay High Court
Mrs. Sonia Kunwar Singh Bedi vs Mr. Kunwar Singh Bedi on 17 December, 2014
Bench: V.K. Tahilramani
1 cam.448.14.doc
jdk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 448 OF 2014
IN
FAMILY COURT APPEAL NO. 142 OF 2014
Mrs. Sonia Kunwar Singh Bedi ]
Age 37 years, residing at ]
244, The Embassy Ali ]
Aksar Road, Bangalore 560052 ].. Applicant
[Ori. Respondent]
Vs.
Mr. Kunwar Singh Bedi ]
Age 45 years, ]
Residing at 41-A, ]
Meherina Napean Sea Road, ]
Mumbai ].. Respondent
[Ori. Appellant]
....
Mr. Robin Jaisinghani along with Nirman Sharma Advocate i/b
Ms. Edith Dey Advocate for the Applicant
Mr. R.T. Lalwani along with Mr. Prakash Mahadik Advocate for
the Respondent
....
CORAM : SMT.V.K.TAHILRAMANI AND
SHRI. A.K.MENON, JJ.
RESERVED ON : DEC. 10, 2014
PRONOUNCED ON : DEC. 17, 2014
JUDGMENT: [PER SMT. V.K.TAHILRAMANI,J.] :
1 What is the period of limitation for preferring an
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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.
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
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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
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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;
The last decision of the Supreme Court in
Adhyaatamam (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.
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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.
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
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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
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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.
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(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). 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
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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
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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
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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.
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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
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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
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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.
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 (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). 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
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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,
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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. ig 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
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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."
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
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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.
The short question that remains to be considered is
whether the non obstante clauses in Section 19 and 20 can
override the applicability of the period of limitation prescribed
for an appeal under Section 28. A non obstante clause cannot
be read mechanically. The totality of the circumstances have
to be taken into account. The precise intention of the
legislature will have to ascertained. Vague and general non
obstante clauses cannot operate to militate against specific
stipulations made in enactments to meet specific situations.
We have already discussed above why Section 28(4) of Hindu
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Marriage Act was amended, this circumstance has to be given
due weightage.
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
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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
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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
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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.
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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.
[SHRI. A.K.MENON, J.] [SMT. V.K.TAHILRAMANI, J.]
kandarkar
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