IMPORTANT POINT
Appeal – Period of limitation for filing appeal from appealable order and decree of District Court would be ninety days under section 28 of HMA and period of limitation for filing appeal from appealable order and judgment of Family Court, wherever it has been set up, would be thirty days under section 19 of Family Courts Act.

JUDGMENT

Sanjeev Sachdeva, J.—Appellant impugns judgment dated 11.04.2019 passed by the Principal Judge, Family Court Saket whereby the Divorce Petition filed by the Respondent under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the HMA) has been allowed.

2. A preliminary objection has been raised by the Respondent that the appeal is barred by limitation. It is contended by learned counsel for the Respondent that as the appeal has been filed under the Family Court Act, 1984, the same should have been filed within a period of 30 days as provided under section 19(3) of the said Act.

3. Per contra, the contention of the Appellant is that the appeal has been filed under Section 28 of HMA, wherein the period of limitation prescribed is 90 days.

4. The questions that arises for consideration is as to what is the period of limitation for filing an appeal against a decree or order passed by a Family Court under the Hindu Marriage Act, 1955?

5. In the present case arguments were heard only on the preliminary objection and not on merits and as such the factual matrix of the case is being referred only to give context to the submissions made by the parties.

6. Marriage between the parties was solemnized on 19.05.2002 in accordance with Hindu rites and ceremonies at New Delhi and two daughters were born out of the wedlock.

7. Differences and disputes arose between the parties, and sometime in March 2015, Respondent/Husband took an independent accommodation in Gurgaon and filed the subject petition on 10.07.2015, before the Principal Judge, Family Courts Saket, seeking divorce on the ground of cruelty under section 13(1)(ia) of the HMA.

8. The divorce petition was allowed by the Principal Judge, Family Courts Saket, New Delhi on 11.04.2019 and a decree of divorce has been passed. Present appeal arises out of the said order.

9. Learned Counsel for the appellants submits that the appeal has been filed under Section 28 of the HMA and Section 28(4) of the HMA, prescribes a limitation period of 90 days for filing an appeal against a decree or an order made under the said Act.

10. Learned Counsel further submits that initially the period prescribed for filing an appeal even under section 28 of the HMA was thirty days but said provision was amended by Act 50 of 2003 and the period was enhanced to ninety days. He submits that the amendment was carried out pursuant to the directions of the Supreme Court in Savitri Pandey versus Prem Chandra Pandey (2002) 2 SCC 73.

11. Learned Counsel further submits that the non-obstante clause in Section 20 of the Family Courts Act would not apply to the present case because the amendment in the HMA was carried out after the Family Courts Act was enacted. He submits that the non obstante clause used in Section 20 uses the expression “any other law for the time being in force” which would imply any other law in force when the Act was notified (The Family Courts Act came into force in Delhi on 19.11.1986, vide notification dated 18.11.1986) and would not apply to any amendment brought in force later.

12. Learned Counsel relies upon the decision of the Supreme Court in Bank of India versus Ketan Parekh and others (2008) 8 SCC 148 to contend that the non obstante clause in the later Act would prevail.

13. Per Contra learned counsel for the Respondent submits that Section 20 of the Family Courts Act commences with a non obstante clause and as such provisions contained in the said Act would override any inconsistent provision contained in the HMA.

14. She further submits that the expression “any other law for the time being in force” is not to be read in context of the time when the respective Acts were enforced but in the context of the time when the inconsistent provisions are to be made applicable.

15. In the above context we may now examine the respective statutory provisions.

16. Section 28 of the HMA reads as under:—

“28. Appeals from decrees and orders.—(1) All decrees made by the