IMPORTANT POINT
Period of limitation for preferring an appeal against an order or decree under Section 28 of the Hindu Marriage Act is 90 days and not 30 days as stipulated under Section 19(3) of the Family Courts Act.

R. Basant, J.— What is the period of limitation for preferring an appeal under Section 28 of the Hindu Marriage Acts as stipulated in. Section 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 Section 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 Section 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 OP. By the impugned order passed on 21.5.09, that petition was closed (dismissed). The petitioner claims to be aggrieved by that order. The petitioner has preferred this appeal under Section 19 of the Family Courts Act read with Section 28 of the Hindu Marriage Act. On facts, there is no controversy. If the period of limitation is 90 days as stipulated under Section 28(4), the appeal is perfectly within time. On the contrary if the period of limitation is 30 days as stipulated under Section 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 Section19 of the Family Courts Act and Section 28 of the Hindu Marriage Act. Section 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. Section 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