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High Court Of Calcutta
A. M. BHATTACHARJEE, AJIT KUMAR NAYAK
SIPRA DEY - Appellant
Versus
AJIT KUMAR DEY - Respondent
A. F. O. D. 250 Of 1981
Decided On : 09/02/1987
HINDU MARRIAGE ACT - Appeal - Limitation - Applicability of S. 5 of the Limitation Act - Held, S. 5 of the Limitation Act applies to matrimonial appeals under S. 28 of the Hindu Marriage Act.
Fact of the Case:
The appellant, who is the wife, preferred a matrimonial appeal beyond the limitation period. The delay was condoned under S. 5 of the Limitation Act on an application filed subsequent to the presentation of the appeal. The respondent, who is the husband, challenged the order condoning the delay on the grounds that S. 5 of the Limitation Act cannot apply to a matrimonial proceeding under the Hindu Marriage Act and that even if the Section applies, the application thereunder ought to have accompanied the memorandum of appeal as required by R. 3a of the Code of Civil Procedure, inserted by the Amendment Act of 1976.
Finding of the Court:
The court held that S. 5 of the Limitation Act applies to matrimonial appeals under S. 28 of the Hindu Marriage Act. The court further held that the provision of R. 3a of the Code of Civil Procedure, which requires an application for condonation of delay to accompany the memorandum of appeal, is not mandatory to the extent that it would prevent the court from condoning the delay on an application filed later.
Issues: 1. Whether S. 5 of the Limitation Act applies to matrimonial appeals under S. 28 of the Hindu Marriage Act? 2. Whether the provision of R. 3a of the Code of Civil Procedure, which requires an application for condonation of delay to accompany the memorandum of appeal, is mandatory?
Ratio Decidendi: 1. The court held that S. 5 of the Limitation Act applies to matrimonial appeals under S. 28 of the Hindu Marriage Act on the following grounds: a) S. 29 (2) of the Limitation Act makes the provisions of Ss. 3 to 25 thereof applicable to all suits, appeals and applications under any 'special law' and the Hindu Marriage Act is a 'special law' within the meaning of S. 29 (2) of the Limitation Act. b) The expression 'proceeding' in S. 29 (3) of the Limitation Act, which excludes the application of the Act to any suit or other proceeding under any law relating to marriage and divorce, should be construed to mean original proceeding in the nature of suit and not to include appeal. c) The provisions of the Limitation Act relating to appeals enact principles which are eminently 'reasonable' and evidently 'right', 'just and fair'. To construe the word proceeding in S. 29 (3) to include appeal would be to overthrow all these reasonable provisions in respect of appeal. d) The Long Title of the Limitation Act, which describes the Act as 'an Act to consolidate and amend the law for the limitation of suits and other proceedings', does not override the clear meaning of the enactment. e) There is no period of limitation for appeals under the Indian Divorce Act and there was also no period of limitation for appeals under the Hindu Marriage Act from 1955 till 1976. To hold that the expression other proceeding in S. 29 (3) of the present Limitation Act includes appeals and the whole of the Act is thus inapplicable to matrimonial appeals, is to hold that there is no period in limitation for appeals under the Indian Divorce Act and that there was also no period of limitation for appeals under the Hindu Marriage Act from 1955 till 1976. 2. The court held that the provision of R. 3a of the Code of Civil Procedure, which requires an application for condonation of delay to accompany the memorandum of appeal, is not mandatory to the extent that it would prevent the court from condoning the delay on an application filed later, on the following grounds: a) The object of R. 3a is to provide for a procedure, so that the question of condonation of delay of a time-barred appeal is decided once for all at the initial stage and that an appeal may not drag on for considerable time only to be dismissed at the end on the ground of limitation. That object would not stand defeated if such a question is decided on an application filed, not simultaneously but, some time after the presentation of the appeal, before the question has been decided by the court. b) R. 1, O. 41 also requires that the memo of appeal 'shall be accompanied-by a, copy of the decree' and R. 3 expressly authorises the court to reject the memo if R. 1 is not complied with. But the very succeeding R. 3a does not in any way provide that its non-compliance will also entail such rejection and the court did not think that it should take such a course to be implied when the Legislature took all the care to provide for such a course in express terms in the preceding R. 3. c) Section 5 of the Limitation Act providing for condonation of delay applies not only to appeals but to applications also. But there being nothing analogous to R. 3a in the Civil P. C. or any other law requiring that an application for condonation of delay to file an application must also accompany the main application, such a condonation-application can very well be filed at a later stage.
Final Decision: The court dismissed the appeal on merits.
( 1 ) THIS matrimonial appeal by the wife-appellant was preferred beyond the period of limitation but the delay has been condoned under S. 5 of the Limitation Act on an application filed subsequent to the presentation of the appeal. Mr. D. Roze, the learned counsel appearing for the husband-respondent has now urged, and has urged very seriously, that the order condoning the delay under S. 5 of the Limitation Act was patently erroneous for two reasons. Mr. D. Roze has contended that, firstly, S. 5 of the Limitation Act cannot have any manner of application to a matrimonial proceeding under the Hindu Marriage Act including an Appeal, and, secondly, even if the Section applies, the application thereunder ought to have accompanied the memorandum of appeal as now required by R. 3a of the Code of Civil Procedure, inserted by the Amendment Act of 1976, and such an application having filed later, the delay could not be condoned.
( 2 ) AN appeal against a decree under the Hindu Marriage Act is provided in S. 28 (1)of the said Act and the period of limitation therefor is prescribed in S. 28 (4 ). It is neither an appeal under the general law, i. e. , the Code of Civil Procedure, nor the period of limitation therefor is prescribed under the general law, i. e. , the Limitation Act, for if it were so, these provisions in S. 28 would not have been necessary. The Division Bench decisions of this court in Sobhana v. Amar, AIR 1959 Cal 455 and in Pratima v. Kamal, (1964) 68 Cal WN 316 are clear authorities for the view that an appeal against a decree under the Hindu Marriage Act is an appeal under S. 28 of that Act and not an appeal under the general law. The Division Bench decision of the Bombay High Court in Madhukar v. Malti AIR 1973 Bom 141 is also to that effect. All these decisions were rendered under S. 28 of the Hindu Marriage Act as it stood before 1976, but the present S. 28, as amended by the Amendment Act of 1976, makes the position clearer and S. 21b of the Act, also inserted by the said Amendment Act, puts the matter beyond all controversy by describing, in Sub-Sec. (3), an appeal against a decree or order passed under the Hindu Marriage Act as an "appeal under this Act", i. e. the Hindu Marriage Act.
( 3 ) SECTION 29 (2) of the Limitation Act makes the provisions of Ss. 3 to 25 thereof applicable to all suits, appeals and applications under any 'special law' and there should be no doubt that the Hindu Marriage Act. or for the matter of that, its S. 28
(4), is a 'special law' within the meaning of S. 29 (2) of the Limitation Act. Even if S. 41 of the Penal Code, defining 'special law' as "a law applicable to a particular subject" is not directly available for the construction of the same expression in S. 29 (2), Limitation Act, the expression, as pointed out by the Supreme Court in Kaushalya Rani v. Gopal Singh, AIR 1964 SC 260 at p. 263, would very much mean a law enacted for special or particular subject in contradistinction to general rules of the law laid down as applicable generally to all cases with which the general law deals. Under S. 29 (2) of the Limitation Act, therefore, the provisions of Ss. 3 to 25, including obviously S. 5, would have been applicable to an appeal under S. 28 of the Hindu Marriage Act.
( 4 ) BUT S. 29 (3) of the Limitation Act, however, provides that "save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law". It has been urged by Mr. D. Roze that even though the expression 'suit' in S. 29 (3) may not include 'appeal' because of S. 2 (1), the expression 'proceeding' would, lexically, logically and also legally include an 'appeal'. We would agree with Mr. D. Roze that, by itself, the expression 'proceeding' is wide enough to include appeal and in fact in a sense 'proceeding' is the genus of which suit, appeal and application are different species
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