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IN THE HIGH COURT OF ALLAHABAD
B. L. Yadav and N. L. Ganguly, JJ.
DEEP MALA SHARMA - Appellant
Versus
MAHESH SHARMA - Respondents
F. A. 1144 Of 1990
Decided On : 11/28/1991
FAMILY COURTS ACT - RESTORATION OF SUIT - LIMITATION ACT - APPLICABILITY - CONDONATION OF DELAY - EXPLANATION OF DELAY - SOCIAL AND BENEFICIENT LEGISLATION - INTERPRETATION - FAMILY COURTS ACT - APPLICABILITY OF LIMITATION ACT - SECTIONS 4 TO 24 - APPLICABILITY TO HINDU MARRIAGE ACT - SECTION 5 OF LIMITATION ACT - CONDONATION OF DELAY - EXPLANATION OF DELAY - SOCIAL AND BENEFICIENT LEGISLATION - INTERPRETATION.
Fact of the Case:
The appellant-wife filed a restoration application against the ex-parte decree of divorce granted to the respondent-husband under Section 13 of the Hindu Marriage Act, 1955. The application was filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908. The appellant claimed that she was unaware of the ex-parte decree until 16.2.1989, when she appeared in another suit filed by her for restitution of conjugal rights in a Family Court at Gwalior. The appellant also filed an application under Section 5 of the Limitation Act, 1963, seeking condonation of delay in filing the restoration application. The Family Court rejected the restoration application and the application under Section 5 of the Limitation Act.
Finding of the Court:
The Court held that the provisions of the Limitation Act, 1963 were applicable to the proceedings under the Family Courts Act, 1984. The Court further held that the delay in filing the restoration application was sufficiently explained by the appellant and that the restoration application was filed within time. The Court also held that a case for restoration had been made out and allowed the restoration application. The ex-parte decree of divorce was set aside and the petition for divorce was restored to its original number.
Issues: 1. Whether the provisions of the Limitation Act, 1963 were applicable to the proceedings under the Family Courts Act, 1984? 2. Whether the delay in filing the restoration application was sufficiently explained by the appellant? 3. Whether a case for restoration had been made out?
Ratio Decidendi: 1. The Court held that the provisions of the Limitation Act, 1963 were applicable to the proceedings under the Family Courts Act, 1984, based on the following reasoning: a. Section 10 of the Family Courts Act provides that the provisions of the Code of Civil Procedure, 1908 and "of any other law for the time being in force" shall apply to suits and proceedings before a Family Court. b. The expression "of any other law for the time being in force" under Section 10 of the Family Courts Act is comprehensive enough to include the provisions of Limitation Act, 1963. c. The provisions of a statute dealing with social and beneficient provisions should not be interpreted in a rigid manner, rather a broader view must be taken consistent with the object of legislation. 2. The Court held that the delay in filing the restoration application was sufficiently explained by the appellant, based on the following reasoning: a. The appellant fell ill on 1.3.1989 and recovered on 28.3.1989. b. Her younger sister died on 29.3.1989 and the appellant plunged into grief and sorrow. c. The appellant was unaware of the ex-parte decree until 16.2.1989. d. The appellant filed the restoration application within 30 days from the date of knowledge. 3. The Court held that a case for restoration had been made out, based on the following reasoning: a. The appellant had a strong case on merits. b. The appellant was not negligent in pursuing her case. c. The respondent-husband would not be prejudiced by the restoration of the suit.
Final Decision: The Court allowed the appeal, set aside the impugned judgment and order, condoned the delay in filing the restoration application, allowed the restoration application, set aside the ex-parte decree of divorce, and restored the petition for divorce to its original number. The Court directed the Family Court to make sincere efforts for conciliation between the parties and dispose of the petition within three months.
( 1 ) THE defendant-appellant, has filed the present First Appeal under Section 19 of the Family courts Act, 1984, against the judgment and order dated 18. 5 90 passed by the Judge, Family court, Jhansi in Misc. Caseno. 25/89 rejecting her restoration application along with an application under Section 5 of the Limitation Act 1963 (for short the Act) under Article 123 of the Act the period of limitation to set aside an ex-parte decree was 30 days from the date of decree, or where summons or notice was not duly served, when the applicant had knowledge of the decree. The application for restoration was filed by the appellant (the wife) against the ex-parte decree dated 30. 5. 89 passed by the Family Court in Matrimonial case No. 65 of 1988 (Mahesh Sharma v. Smt. Deep Mala Sharma) under Section 13 of the Hindu Marriage Act, 1955, granting ex-parte decree for divorce in favour of the respondent (the husband) This restoration application was filed under order 9 rule 13 of the Code of Civil Procedure 1908 (for short the code ).
( 2 ) THE material facts which are almost admitted, may be stated. A petition for divorce was filed by the respondent (the husband) against the appellant, (the wife) under Section 13 of the Hindu marriage Act, 1955, which was decreed ex-parte on 30. 5. 89 without any knowledge of the appellant, the wife. It was averred in the restoration application supported by a Medical certificate of the Doctor, filed by the defendant that she fell ill on 1. 3. 89 and recovered on 28 3 89. Unfortunately on 29th March, 1989 her younger sister Ku. Kamla died and the appellant plunged in grief and sorrow. She came to know of the ex-parte decree on 16 2. 89 when the parties appeared in another suit filed by the appellant, the wife with the relief for the restitution of conjugal rights in a Family Court at Gwalior. Notices were served on Mahesh Sharma, the respondent-husband and be was directed that he may get the suit for restitution of conjugal rights decided on the basis of conciliation. After disposal of suit for restitution of conjugal rights, the petition for divorce at Jhansi was to be decided in which 3. 3. 89 was the date fixed for disposal of application filed by the appellant for awarding her some amount in connection with the expenses of litigation. Under these circumstances it was averred that 30 days Limitation under Article 123 of the Act was to be counted from 15. 9. 89 when she was informed about the ex-parte decree in the divorce suit in the case of restitution of conjugal rights pending in the Family Court at gwalior. She prayed that under these pressing circumstances the delay in filing the restoration application may be condoned and the same may be allowed and ex pane decree may be set aside. That application, however, has been rejected by the impugned order.
( 3 ) THE respondent-husband contested the restoration application stating that appellant has got knowledge much earlier, and in any case, even after the death of her younger sister on 29,3. 89, within 13 days the ritual ceremony amongst Hindus is over and thereafter she need and could not be in grief or sorrow, hence could have filed the restoration application immediately after 13th day. The Court below has rejected the restoration application and the averments contained therein was disbelieved and held the application to be time barred. Hence the present appeal has been filed.
( 4 ) SRI Harish Kumar Sharma, learned. Counsel for the appellant strenuously urged that the provisions of Limitation Act, 1963 were applicable and the restoration application was well within time, under Article 123 of the Act, from the date of knowledge. The application under section 5 of the Act has to be considered with a view to advance substantial justice. The Hindu marriage Act and the Family Courts Act were legislation of predominant social nature and it may be interpreted in that light so as to advance the object of legislation. Strong reliance was plac
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