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2014 DIGILAW 358 (GUJ)

DIPAK RASIKLAL PARIKH v. ALPA DIPAK PARIKH

2014-03-10

M.R.SHAH, R.P.DHOLAKIA

body2014
JUDGMENT : M.R. SHAH 1.00. Present application has been preferred by the applicant herein – original opponent – original plaintiff under Order 41 Rule 27 of the Code of Civil Procedure to place on record subsequent development of second marriage of the applicant, which has taken place after the impugned judgment and order passed by the learned Family Court in passing the decree of divorce in favour of the applicant – husband and against the wife as well as raising preliminary objection with respect to maintainability of the appeal on the ground that as the appeal against the judgment and order passed by the learned Family Court was beyond the period of 30 days and as the provisions of Limitation Act would not be applicable and therefore, this Court would not have any power to condone the delay and therefore, as the appeal was not preferred within a period of 30 days, the judgment and order passed by the learned Family Court has attained finality and therefore, the appeal is not maintainable. Preliminary objection is raised with respect to maintainability of the appeal in view of the subsequent development of second marriage of the applicant post expiry period appeal. 2.00. It is the case on behalf of the applicant -husband that admittedly and as per section 19 of the Family Courts Act, appeal against the order of the Family Court is required to be preferred within a period of 30 days and in the Family Courts Act, there is no specific provision with respect to applicability of Limitation Act and as the Family Courts Act is a Special Act and under the Special Act, appeal is required to be preferred within a period of 30 days only and therefore, as the period of limitation, more particularly section 5 of the Limitation Act, would not be applicable and therefore, appeal beyond the period of 30 days would not be maintainable. It is further submitted that even in view of the subsequent development of post judgment and decree passed by the learned Family Court and post appeal period i.e. as the applicant -has remarried and second marriage of the applicant would be legal and valid and therefore, first appeal would not be maintainable. 3.00. It is further submitted that even in view of the subsequent development of post judgment and decree passed by the learned Family Court and post appeal period i.e. as the applicant -has remarried and second marriage of the applicant would be legal and valid and therefore, first appeal would not be maintainable. 3.00. Mr.Chirag Patel, learned advocate appearing on behalf of the wife has submitted that as such when this Court decided Civil Application to condone the delay, no such objection with respect to applicability of section 5 of the Limitation Act was raised by the learned advocate appearing on behalf of the applicant. It is submitted that thereafter, after the delay is condoned, it is not open now for the applicant to raise such an objection. He has submitted that even otherwise, the aforesaid issue is now not res-integra in view of the decision of the Hon’ble Supreme Court in the case of Adhyaatmam Bhamini Versus Jagdish Ambalal Shah, reported in (2006) 13 SCC 686. It is submitted that in the aforesaid decision, the Hon’ble Supreme Court has specifically observed that as there is no exclusion of section 5 of the Limitation Act under the Family Courts Act and since the appeal is to the High Court, section 5 of the Limitation Act gets attracted on its own terms. 3.01. It is further submitted that even the contention on behalf of the applicant that as subsequently and post appeal period the applicant has remarried and therefore, appeal against the judgment and order passed by the learned Family Court would not be maintainable, cannot be accepted. It is submitted that none of the provisions under section 19 of the Family Courts Act prohibits the appeal against the judgment and decree passed by the learned Family Court considering the events taken place, post appeal period, as sought to be contended on behalf of the applicant. By making above submissions and relying upon above decision, it is requested to dismiss the present appeal. 4.00. Heard the learned advocates appearing on behalf of the respective parties at length on the preliminary objection raised by the applicant – husband with respect to maintainability of the appeal. By making above submissions and relying upon above decision, it is requested to dismiss the present appeal. 4.00. Heard the learned advocates appearing on behalf of the respective parties at length on the preliminary objection raised by the applicant – husband with respect to maintainability of the appeal. It is the case on behalf of the applicant that as the appeal against the judgment and order passed by the learned Family Court has been preferred beyond the period of 30 days, thereafter appeal under section 19 of the Act would not be maintainable. It is also the case on behalf of the applicant that section 5 of the Limitation Act would not be applicable to the appeal against the order passed by the learned Family Court, more particularly section 19 of the Family Courts Act and therefore, any appeal preferred beyond the period of 30 days would not be maintainable. 5.01. The aforesaid has no substance. At the outset, it is required to be noted that as such the aforesaid issue is now not res-integra in view of the decision of the Hon’ble Supreme Court in the case of Adhyaatmam Bhamini (supra). In the said decision, the Hon’ble Supreme Court has specifically held that as in the Family Courts Act, there is no specific exclusion of section 5 of the Limitation Act and the appeal would be before the High Court, section 5 of the Limitation Act gets attracted. 5.02. Even otherwise, the contention on behalf of the applicant that if the First Appeal under section 19 of the Family Courts Act is preferred after a period of 30 days, the First Appeal shall not be maintainable, is accepted, in that case, in a given case, it may happen that a husband may get an ex-parte decree and thereafter by the time the wife gets knowledge of the ex-parte judgment and decree of divorce and period of limitation of 30 days to prefer appeal has gone in the meantime, in such a case, it might be giving a premium to such an illegality, which is not permissible. 5.03. Even otherwise, it is required to be noted that earlier against the judgment and decree of divorce under the Hindu Marriage Act, appeal before the High Court was maintainable and there section 5 of the Limitation Act was also made applicable. 5.03. Even otherwise, it is required to be noted that earlier against the judgment and decree of divorce under the Hindu Marriage Act, appeal before the High Court was maintainable and there section 5 of the Limitation Act was also made applicable. Now, divorce proceedings are brought within the purview of Family Courts Act and therefore, as such only forum is substituted and therefore, section 5 of the Limitation Act would be attracted and applicable. Under the circumstances, preliminary objection raised by the applicant husband is hereby overrules. 5.04. Now, so far as second preliminary objection with respect to maintainability of the First Appeal on the ground that subsequently and post appeal period, the appellant – applicant herein has remarried and therefore, the appeal itself would not be maintainable, is concerned, the same also cannot be accepted. The appeal is provided under section 19 of the Family Courts Act. Therefore, unless specifically provided under the Family Courts Act and unless there is bar of preferring appeal in case of decree holder remarries post appeal period, it cannot be said that the appeal itself would not be maintainable. The aforesaid aspect may be required to be considered at the time of deciding the appeal on merits and/or granting final relief in the appeal. However, on the aforesaid ground the contention that the appeal itself would not be maintainable, cannot be accepted. Under the circumstances, the second preliminary objection with respect to maintainability of the appeal on the ground that the applicant has remarried after the post appeal period, is hereby overruled. 6.00. In view of the above and for the reasons stated above, present application is dismissed by overruling both the preliminary objections raised by the learned advocate appearing on behalf of the applicant.