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Allahabad High Court · body

2009 DIGILAW 735 (ALL)

Ashutosh Kumar v. Anjali Srivastava

2009-03-05

PANKAJ MITHAL, S.K.SINGH

body2009
JUDGMENT:- This is husbands appeal. He had initiated proceedings under Section 13 of the Hindu Marriage Act, 1955 for divorce. In the said proceedings issues were framed and the issue No.3 happened to be with regard to jurisdiction of the Family Court, Allahabad. This issue has been decided as a preliminary issue vide impugned judgment and order dated 19-11-2008 and it has been held that the Court at Allahabad has no jurisdiction and therefore plaint be returned for presentation to proper court of jurisdiction. 2. The appeal was presented before the Registrar General on 18-2-2009 whereupon the office reported it to be beyond limitation by 53 days as under Section 19 of the Family Court Act, 1984 the limitation provided for presenting the appeal is 30 days only. Against this report the appellant has preferred objections contending that basically the appeal is under Section 28 of the Hindu Marriage Act wherein the limitation provided is 90 days and therefore the appeal is within time and the report submitted by the Stamp Reporter treating the appeal to be under Family Court Act, 1984 is incorrect. 3. We have heard Sri Siddhartha Srivastava in support of the above objections. His submission is that the appeal is under Section 28 of the Hindu Marriage Act read with Section 19 of the Act. Therefore, as the limitation for preferring an appeal under Section 28 of the Hindu Marriage Act is 90 days and that being the special act, the limitation provided therein would prevail over the one which has been prescribed under the Family Courts Act and as such the report of the Stamp Reporter is incorrect. 4. The period of limitation prescribed for instituting a suit or preferring an appeal or for making an application is governed by the provisions of the Limitation Act. 1963 which is of a general nature. Section 3 of the Act provides that every suit instituted, appeal preferred and an application made after the prescribed period of limitation shall be dismissed. However by virtue of Section 29 sub-clause (2) of the Act where under special or local Act any different period of limitation is prescribed other than mentioned in the schedule attached to the limitation Act the same shall hold the field. However by virtue of Section 29 sub-clause (2) of the Act where under special or local Act any different period of limitation is prescribed other than mentioned in the schedule attached to the limitation Act the same shall hold the field. In other words, in view of Section 29 (2) of the Limitation Act the period of limitation provided in special or local Act would prevail over the period of limitation prescribed in the schedule of the Limitation Act. The three Judges Bench of the Supreme Court in (2008) 7 SCC 169 ; (2008 AIR SCW 4182) Consolidated Engineering Enterprises v. Principal Secretary Irrigation Department and others also held that when any special statute prescribes a certain period of limitation, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of Limitation Act shall stand excluded. 5. Special law is a law which is enacted for special cases, in special circumstances, in contradiction to the general rules of law. For that matter the Hindu Marriage Act, 1955 is undoubtedly a special law as it has been enacted to deal with the special cases in relation to matrimonial/family disputes amongst the Hindus and with the procedure of settlement of such disputes. It contains not only the substantive law dealing with the grounds for decree of divorce and other matters but also with the procedure including appeals thereof. 6. Initially under Section 28 (4) of the Hindu Marriage Act also the period of limitation for an appeal against the decree passed under the said Act was only 30 days. Subsequently, it appears that in view of the decision of the Apex Court in the case of Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73 : (2002 All LJ 355) the period of limitation provided therein was increased to 90 days w.e.f., 23-12-2003 vide Act No. 50 of 2003. 7. Subsequently to ensure speedy disposal of family/matrimonial disputes, the Family Courts Act, 1984 was enacted and enforced providing for the procedure of settlement of such disputes. However, the substantive part of the Hindu Marriage Act remained untouched. 7. Subsequently to ensure speedy disposal of family/matrimonial disputes, the Family Courts Act, 1984 was enacted and enforced providing for the procedure of settlement of such disputes. However, the substantive part of the Hindu Marriage Act remained untouched. Thus, with the enforcement of the Family Courts Act a super specialized law came into existence dealing with the procedural aspects of settling family /matrimonial disputes and in districts where family courts were established, the jurisdiction of the civil court to try such family/matrimonial disputes stood transferred to the family courts. However, till date family courts have not been established in all districts. Thus, two parallel systems have come into existence providing for the procedure for resolving of such disputes i.e., one under the Hindu Marriage Act and the other under the Family Courts Act. Thus, where the family courts have not been established the procedure as provided under the Hindu Marriage Act continues to operate and the appeals are to be preferred in accordance with the provisions thereto. At the same time where family courts have been established the procedure prescribed under the Family Courts Act is to be adopted and so also the method of appeal laid down therein. The period of limitation for filing appeal is different in both the Acts i.e. 90 days in the Hindu Marriage Act and 30 days in the Family Courts Act. Now section 19 of the Family Courts Act provides that an appeal shall lie from every judgment or order except an interlocutory order of a family court to the High Court and such an appeal has to be preferred within a period of 30 days which is to be heard by a Bench or two more Judges. 8. In the instant case the judgment/order appealed against is that of the family court. Therefore, the present appeal is essentially one under Section 19 of the Family Courts Act and it can not be treated to be under Section 28 of the Hindu Marriage Act. Moreover, under Section 28 of the Hindu Marriage Act all appeals against the decrees made by the Court under the said Act would lie to the Court to which appeals ordinarily lie from the decision of the Court given in exercise of its original civil jurisdiction. Moreover, under Section 28 of the Hindu Marriage Act all appeals against the decrees made by the Court under the said Act would lie to the Court to which appeals ordinarily lie from the decision of the Court given in exercise of its original civil jurisdiction. Therefore, also this appeal to the High Court, can not be an appeal under Section 28 of the Hindu Marriage Act but an appeal strictly within (he ambit of Section 19 of the Family Courts Act. Besides, as there is inconsistency between the period of limitation provided in the two Acts. The limitation provided under the Family Courts Act would prevail over the one which has been provided under the Hindu Marriage Act for the simple reason that the Family Courts Act is in the form of super legislation vis-a-Vis the Hindu Marriage Act. Insofar as the procedure for settling family/matrimonial disputes is concerned, section 20 of the Family Courts Act in this regard specifically provided that in the event of inconsistency between the provisions of that act or any other law for the time being enforce, the provisions of the Family Courts Act shall prevail. 9. Accordingly, where the family courts have been established and a judgment and order is passed by it, the appeal against such judgment and order would be one under Section 19 of the Family Courts Act and the provisions of Section 28 of the Hindu Marriage Act insofar as it provides for filing an appeal pales into insignificance and stand superseded by Section 19 of the Family Courts Act. 10. Therefore, the submission of the learned counsel for the appellant that the limitation for filing the present appeal should be treated as 90 days can not be accepted and the period of limitation of 30 days so specifically provided under the super specialty statute can not be extended by the court. 11. In view of the aforesaid facts and circumstances we are of the considered opinion that the limitation for preferring an appeal against the judgment and order of the Family court would be as prescribed under Section 19 of the Act and not the one which has been prescribed under Section 28 of the Hindu Marriage Act. 11. In view of the aforesaid facts and circumstances we are of the considered opinion that the limitation for preferring an appeal against the judgment and order of the Family court would be as prescribed under Section 19 of the Act and not the one which has been prescribed under Section 28 of the Hindu Marriage Act. Accordingly, we overrule the objection taken by the appellant against the office report with regard to limitation and the report is held to be inconsonance with the provisions of the Act. 12. However, before parting with the subject taking hint from the decision of the Apex Court in the case of Savitri Pandey (2002 All LJ 355)(supra) to bring about uniformity in the period of limitation for preferring appeal and keeping in mind the other factors such as distance, geographical conditions and financial position of the parties we are of the opinion that the period of limitation of 30 days under Family Courts Act is insufficient and inadequate and therefore it should also be increased to a minimum period of 90 days. Therefore, we suggest that the period of limitation prescribed under the Family Courts Act be also reconsidered and brought at par in uniformity with the period of limitation prescribed for preferring appeals under other statutes especially Hindu Marriage Act i.e. 90 days. We, accordingly, direct the registry to forward the copy of this order to the Ministry of Law and Justice for such action as it may deem fit and proper in this regard. 13. At this stage learned counsel prays for and is allowed two weeks time to make an application. if any, permissible under law for seeking condonation of delay in presenting the appeal. 14. List immediately on the expiry of two weeks. Order accordingly.