The main legal point established in the judgment is that the time limit for filing an appeal challenging the judgment and order passed by the Family Court under the provision of the Hindu Marriage Act is 90 days, as prescribed under Section 28(4) of the Hindu Marriage Act.

ORDER :

A.J. Desai, J.

1. By way of present application filed under Section 5 of the Limitation Act, present applicant – original respondent – wife has prayed to condone the delay of seven days in filing the captioned first appeal.

2. Rule was issued by the Coordinate bench of this Court on 06.07.2022. In response to the notice issued by this Court, Mr. Bhishma A. Rawal appeared for the respondent but he has not filed affidavit-in-reply in the matter.

3. It is the case of the applicant that since the Registry of this Court has raised objection with regard to delay of seven days in filing the captioned first appeal and therefore, present applicant is compelled to file this application for condonation of delay though, as per her case, there is no delay in filing the captioned first appeal in view of the provisions of Section 28(4) of the Hindu Marriage Act, which provides the limitation of 90 days in filing the appeal challenging the judgment and order passed by the Court in the matrimonial proceedings.

4. Short facts arise from the record are that present respondent - husband has filed an application under Section 13 of the Hindu Marriage Act, 1955 for a decree of divorce on the ground that present applicant – wife has deserted him for more than 6 years before filing Family Suit No. 48 of 2018 before learned Family Court, Mahesana. The Principal Judge, Family Court, Mahesana, by judgment and order dated 21.04.2022, allowed the suit and passed the decree of divorce in favour of the respondent – husband. It is the case of present applicant that on 22.04.2022, learned advocate for present applicant had made the application for getting the certified copy of the judgment and order dated 21.04.2022 passed by Principal Judge, Family Court, Mahesana. The certified copy was delivered to present applicant on 02.05.2022. Therefore, she filed the captioned first appeal before this Court under Section-19 of the Family Courts Act, 1984 on 13.06.2022. It is also the case of present applicant that the Registry raised objection that the first appeal was supposed to file within a period of 30 days as provided under Section – 19(3) of the Family Courts Act, 1984, whereas, present appeal has not been filed within prescribed period of limitation i.e. 30 days. It is also the case of the applicant that prescribed period of limitation in challenging the judgment and order passed by the 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 and therefore, present first appeal has been filed within prescribed period of limitation. Hence, present application may be allowed.

5. Mr. Kaash Thakkar, learned advocate for the applicant, by taking us through the provision of Section 19 of the Family Courts Act and the provision of Section 28 of the Hindu Marriage Act, would submit that the enactment of Family Courts Act, 1984 is mainly for establishing the Family Court providing the procedure for expeditious disposal of the matrimonial dispute and the said law is of general nature, whereas, the Hindu Marriage Act is a special law enacted for resolving the disputes arising between the husband and the wife with regard to their marriage. He would submit that Section-28 of the Hindu Marriage Act provides for the appeal from a judgment and order challenging the jurisdiction of the Court below, who has dealt with the disputes between the husband and the wife. He would submit that as per Section 28(4) of the Limitation Act, time limit to file appeal against the judgment and order is of 90 days, which was amended in the year 2003 i.e. subsequent to establishment of the Family Courts Act, 1984, and therefore, the limitation of 90 days is to be calculated for the purposes of filing the appeal. In support of his submissions, he has relied upon the decision of Full Bench of the Bombay High Court in the case of Shivram Dodanna Shetty Vs. Sharmila Shivram Shetty reported in 2017 (1