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High Court of Kerala
THE HONOURABLE MR. JUSTICE R. BASANT & THE HONOURABLE MRS. JUSTICE M.C. HARI RANI
Viswanathan
Versus
Sindhu M.K
I.A. No.2492 of 2009 in Unnumbered Mat.A. of 2009
Decided on : 15-09-2009
Hindu Marriage Act 1955 - Section. 28( 4) - Family Courts Act 1984 - Section 19( 3) - Appeals from decrees and orders - Limitation for an order/decree appealable - What is the period of limitation for preferring an appeal under S.28 of Hindu Marriage Act ? Whether is it 90 days as stipulated in S.28(4) vide Amendment Act 50 of 2003 or is it 30 days as stipulated under S.19(3) of Family Courts Act, 1984 ? Whether stipulations of S.28(4) must be reckoned as special and those of S.19(3) to be general ?Whether stipulation in Hindu Marriage Act deals with substantive right of parties and substantive right of appeal whereas stipulations in Family Courts Act deal with procedural matters ? Whether period of limitation under S.28(4) of Hindu Marriage Act prominence and predominance over S.19(3) of Family Courts Act ? Whether when two interpretations are equally possible, one prescribing a larger period of limitation be preferred? Whether when a later enactment prescribes a different period of limitation, later enactment if must be preferred ? Held, S.19(3) are more general in nature inasmuch as they cover not only orders by the Family Court under the Hindu Marriage Act but cover all appealable orders passed in proceedings before the Family Court. The stipulations of S.19(3) of the Family Courts Act being general in nature and S.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 S.19 of the Family Courts Act), stipulations of S.28(4) must be reckoned as special and those of S.19(3) to be general. The Family Courts Act does not deal with substantive rights of the parties but only deal with the manner in which the matters coming within S.7 of the Family Courts Act have to be dealt with and disposed of by the Family Courts. The purpose of the Marriage Laws Amendment Act, by which S.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 S.28(4) of the Hindu Marriage Act which amendment was brought in with effect from 23.12.2003 must be given prominence and predominance. Stipulations regarding limitation which take away the right to sue/appeal must be strictly construed. Hence, when two interpretations are equally possible, the one prescribing a larger period of limitation can and ought to be preferred. Hindu Marriage Act was enacted in 1955. The Family Courts Act was enacted in 1984. But the crucial amendment to S.28(4) was enacted later in 2003. The Parliament must be presumed to have known the relevant stipulations of general nature in S.19(3) while bringing in the amendment to S.28(4) - The later enactment - i.e. Marriage Laws Amendment Act, 2003 must prevail over the earlier enactment -i.e. Family Courts Act, the larger period of limitation prescribed under S.28(4) of the Hindu Marriage Act must prevail. The interpretation must be such that an identical period of limitation would be available for orders appealable under S.28 of the Hindu Marriage Act - Court hold that the period of limitation for an order/decree appealable under S.28 of the Hindu Marriage Act is 90 days as stipulated under the amended S.28(4) of the Hindu Marriage Act and not 30 days under S.19(3) of the Family Courts Act - It follows that this appeal is not barred by limitation and deserves to be entertained even without any application for condonation of delay - The Registry shall number the appeal.
R. Basant, J.
What is the period of limitation for preferring an Appeal under S.28 of the Hindu Marriage Act? Is it 90 days as stipulated in S.28(4) 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 S.19(3) of the Family Courts Act? This is the only question to be considered now.
2. A brief reference to the vital facts in the background of which this question arises appears to be necessary and relevant. The appellant/petitioner had filed an application under S.9 of the Hindu Marriage Act claiming restitution of conjugal rights before the Family Court, Ettumanoor. His wife, the respondent herein, was the respondent in that O.P. By the impugned order passed on 21.05.09, that petition was closed (dismissed). The petitioner claims to be aggrieved by that order. The petitioner has preferred this appeal under S.19 of the Family Courts Act read with S.28 of the Hindu Marriage Act. On facts, there is no controversy. If the period of limitation is 90 days as stipulated under S.28(4), the appeal is perfectly within time. On the contrary if the period of limitation is 30 days as stipulated under S.19(3) of the Family Courts Act, the application is barred by limitation. The Registry raised an objection that the appeal cannot be received without an application for condonation of delay. The appellant prayed that it may be called on the Bench for a decision. It is accordingly that the matter has come up before us now.
3. We have heard the arguments of the learned counsel for the appellant. We also sought the services of Advocate C.S. Dias to assist us as Amicus Curiae. Both counsel have advanced their arguments.
4. It will be apposite at the outset to extract S.19 of the Family Courts Act and S.28 of the Hindu Marriage Act. S.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 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 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)
5. S.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 th
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