Orissa High Court
Pramila Das vs Gourahari Das on 16 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 165 OF 2023
Pramila Das .... Appellant
Mr. S. K. Samantaray, Advocate
-versus-
Gourahari Das .... Respondent
Mr. P. K. Satapathy, Advocate
(Amicus Curiae)
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
ORDER
16.10.2023
Order No.
02. 1. The Appeal was sought to be moved on 4th October, 2023. We
had, by our order made on that date raised query. Paragraph-2 of order
dated 4th October, 2023 is reproduced below.
<On query from Court Mr. Samantaray submits, the
appeal is to be preferred to the High Court in terms of
provision in section 19 of Family Courts Act, 1984. On
further query regarding limitation provided by the
section to be 30 days he submits, section 28 in Hindu
Marriage Act, 1955 provides for limitation of 90 days in
respect of appeal from decree granted under provisions
in said Act.=
We had appointed to Mr. Satapathy, learned advocate to be Amicus
Curiae.
// 2 //
2. Mr. Samantaray, learned advocate appearing for appellant-wife
and learned Amicus Curiae submit, a Full Bench of this Court has
answered the question on reference by order dated 26th September,
2023 in MATA no.54 of 2020 (Bibhuti Bhsuan Rout vs. Sasmita
Nayak and another). By it view taken was, appeal from order of the
Family Court has prescribed period of 30 days while that made by any
other court subordinate for appeal to the High Court, it is 90 days.
3. Learned Amicus Curiae submits, prescribed period for
preferring appeal from order made under Hindu Marriage Act, 1955
was initially 30 days. The period has direct nexus with provision in
section 15, restricting a person to get married within the prescribed
period in which an appeal could be preferred from a decree of divorce.
It was felt that this period was too short and hence, there was
amendment enlarging the prescribed period to 90 days. However,
Family Court Act, 1984 was enacted with prescribed period in Hindu
Marriage Act, 1955 at that time being 30 days. Subsequent amendment
in Hindu Marriage Act, 1955 enlarging the prescribed period has not
been made in Family Courts Act, 1984. Hence, paragraph-14 in
Bibhuti Bhusan Rout (supra). We reproduce below the paragraph.
<14. We would be failing in our duty if we do not record
the anxiety, as expressed by the learned Senior Counsel
regarding the difficulties faced by the people from the
// 3 //
rural segments and the under-developed regions in filing
an appeal before the High Court. In this regard, we
should observe that such causes are considered liberally
for condoning the delay as the High Court intends to
secure the interest of substantive justice.=
4. Mr. Samantaray submits, though his client's appeal was
preferred beyond 30 days but no application for condonation of delay
is required because sub-section(3) in section 29 of Limitation Act,
1963 says nothing in it shall apply to any proceeding with respect to
marriage and divorce under any such law. Learned Amicus Curiae
points out, prior to Bibhuti Bhusan Rout (supra) there was direction
on view taken by a Division Bench of this Court for computing the
prescribed period regarding filing of appeal from orders of the Family
Court at 90 days. This is why, present appeal was reported to be filed
in time though filed beyond 30 days.
5. There has been delay beyond prescribed time of 30 days in
filing present appeal. Though it was filed prior to Bibhuti Bhusan
Rout (supra), it is being moved today. It is also true that a judgment is
discovery of the correct position in law and therefore has retrospective
effect. This was declared in Supreme Court in ACIT, Rajkot v.
Saurashtra Kutch Stock Exchange Ltd., reported in (2008) 14 SCC
171, paragraph 35. In the circumstances, we are unable to accept Mr.
Samantaray's submission that his client does not need to apply for
condonation of delay simply because it would have effect of rendering
// 4 //
otiose prescribed period of 30 days in respect of appeals from orders
of the Family Court, as provided in section 19 of the Act and
confirmed by view taken in Bibhuti Bhusan Rout (supra). Learned
Amicus Curiae submits, the Supreme Court has declared application of
section 5 in marriage and divorce cases in the High Courts on its own
term, by judgment dated 11th December, 2006 in Civil Appeal
no.5693 of 2006 (Adhyaatamam- Bhamini vs. Jagdish Ambalal
Shah).
6. Hearing on admission of the appeal is adjourned to enable
filing of condonation of delay application. We record our appreciation
to learned Amicus Curiae for the assistance rendered.
7. List on 20th November, 2023.
(Arindam Sinha)
Judge
(S.S. Mishra)
Judge
Swarna
Signature Not Verified
Digitally Signed
Signed by: SWARNAPRAVA DASH
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 17-Oct-2023 12:19:24
