IMPORTANT POINT
When two interpretations possible about period of limitation, stipulating larger period of limitation to be preferred.

V.K.Tahilramani, J.—What is the period of limitation for preferring an Appeal against a final order passed by the Family Court? Is it 90 days as stipulated in Section 28(4) of the Hindu Marriage Act, 1955 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 Section 19(3) of the Family Courts Act? This is the only question which arises for consideration before us in this application.

2 A brief reference to the vital facts in the background of which this question arises appears to be necessary and they are as under:

The applicant and the respondent are both Hindus and were married as per Hindu Vedic rites and ceremonies. Thereafter disputes arose between the parties and the applicant-wife filed Petition A-849 of 2011 before the Family Court at Mumbai seeking divorce on the ground of cruelty. The respondent-husband filed Petition No. D68 of 2011 for custody of 2 minor daughters. Both the petitions were disposed of by common judgment and order dated 10.12.2013. By the said judgment and order Petition A-849 of 2011 was allowed and Petition D-68 of 2011 was dismissed. The respondent-husband 2 of 23 has preferred Family Court Appeal No. 142 of 2014 challenging the common judgment and order dated 10.12.2013 passed by the learned Judge of the Family Court No.4, Mumbai whereby the wife’s Petition No. A-849 of 2011 for divorce on the ground of cruelty came to be allowed. It is seen that the record clearly shows that certified copy of the order was applied on 13.12.2013, it was ready on 6.1.2014 and it was delivered on the next day i.e. on 7.1.2014. Family Court Appeal No. 142 of 2014 was filed on 7.2.2014. Thus, it is seen that the Family Court Appeal was filed after 30 days but within 90 days.

3. The applicant-wife has preferred present Civil Application No. 448 of 2014 in Family Court Appeal No. 142 of 2014 raising the ground that as the Family Court Appeal No. 142 of 2014 was not filed within 30 days as provided under Section 19 of the Family Courts Act, the Family Court Appeal is barred by law of limitation and the same be rejected.

4. Mr. Jaisinghani, the learned counsel for the applicant has placed reliance on the following decisions to support his claim that the period of limitation is 30 days as contemplated under Section 19 of the Family Courts Act of 1984 and not 90 days as contemplated under Section 28(4) of the Hindu Marriage Act, 1955. The said decisions are as under:

1. Ashutosh Kumar v. Anjali Srivastava, AIR 2009 All 100;

2. S. Valli v. N. Rajendran, 2010 SCC OnLine Mad 1471;

3. Smt. Anuradha and Ors. v. Jitendra Dangwal, 2012 SCC On Line Utt. 2810;

4. Sri. C.Govindraj v. Smt. Padmini, ILR 2009 Kar 21;

5. Adhyaatamam Bhamini v. Jagdish Ambalal Shah, (2006)13 S.C.C. 686;

The last decision of the Supreme Court in Adhyaatamam (supra) would not be applicable to the facts of the present case because in the said decision, there is no reference at all to the Hindu Marriage Act, whereas the question before us essentially is whether the limitation as prescribed under the Family Courts Act will prevail or the limitation prescribed under the Hindu Marriage Act would prevail? Such question did not come up for consideration before the Supreme Court and hence, this decision would not apply to the case of the applicant.

5. In the decision in the case of Sri. C. Govindraj (supra), the Court was considering the issue of court fees and it was not considering the issue whether the limitation under the Hindu Marriage Act or the limitation under the Family Courts Act would prevail? Hence, this decision also would be of no help to the case of the applicant.

6. The decision in the case of Ashutosh Kumar (supra) is by the Allahabad High Court. The decision in the case of S. Valli (supra) is by the Madras High Court and the decision in the case of Smt. Anuradha (supra) is rendered by Division Bench of Uttarakhand High Court. These decisions at the most can only have pe