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2015 DIGILAW 830 (KER)

Balakrishnan Nair v. Chandran

2015-07-07

C.K.ABDUL REHIM, K.RAMAKRISHNAN

body2015
ORDER : K. Ramakrishnan, J. 1. The Registry has raised an objection that since the appeal is filed under the provisions of the Family Court Act read with Guardian and Wards Act, the period of limitation for filing the appeal is 30 days, Section 19(3) of the Family Court Act. The counsel for the appellants relied on a decision of this Court in Viswanathan v. Sindhu 2009 (4) K.L.T. 312 stating that the provisions of Hindu Marriage Act will apply and the period of limitation has to be reckoned as 90 days as provided under Section 28(4) of the Hindu Marriage Act and that was how the matter has come before us for consideration. 2. Heard counsel for the appellants in extenso. 3. Counsel for the appellants submitted that the rights of Hindus in respect of marriage, guardianship, adoption and maintenance and succession etc. are governed by Hindu Code consists of four enactments namely the Hindu Marriage Act, 1955, the Hindu Minority & Guardianship Act, 1956, the Hindu Adoptions & Maintenance Act, 1956 and the Hindu Succession Act, 1956 respectively. Earlier the guardianship of minor is being considered by the District Court and appeal lies to the High Court and the period of limitation was governed by Article 116 of the Limitation Act namely 90 days. Further, Section 2 of the Hindu Minority & Guardianship Act, 1956 says that it is in addition to, and not, save as hereafter expressly provided in, derogation of the Guardian and Wards Act, 1890. Section 5 of the Act is having certain overriding effect in respect of certain aspects prevailing prior to coming into force of this Act. All these aspects were considered by this Court in "Viswanathan's case (cited supra) and observed that period of limitation provided under Section 28(4) of the Hindu Marriage Act has to be reckoned for filing appeal in preference to Section 19(3) of the Family Court Act. So According to him, the appeal is filed within time. Counsel for the appellants submitted that if the court feels that the objection raised by the Registry is sustainable, an opportunity may be given to them to file an application to condone the delay in filing the appeal. 4. So According to him, the appeal is filed within time. Counsel for the appellants submitted that if the court feels that the objection raised by the Registry is sustainable, an opportunity may be given to them to file an application to condone the delay in filing the appeal. 4. It is an admitted fact that the case was filed before the Family Court Attingal as OP (G&W) No. 694/2014 for appointment of guardian and for permanent custody of the minor child, under Section 7 of the Guardian and Wards Act. There is no dispute regarding the status of the parties that they are Hindus and governed by the Guardian and Wards Act read with Hindu Minority & Guardianship Act, 1956 in relation to guardianship and permanent custody of the minor children. It is also not in dispute that any order passed in respect of the same is appealable under Section 47 of the Guardian and Wards Act as there is no special provision provided for filing appeal under the Hindu Minority & Guardianship Act. It is also a settled law that right of appeal is a right created by the statute and it cannot be claimed as of right. 5. The facts of the case in Viswanathan's case (cited supra) was, an order passed by the Family Court under the provisions of the Hindu Marriage Act, 1955 when taken up in appeal, there arose a question as to whether the period of limitation provided under Section 28(4) of the Hindu Marriage Act, 1955 will have to be reckoned in preference to the period of limitation provided under Section 19(3) of the Act. Further, this Court also taken note of the legislative intention in amending the provisions of the Hindu Marriage Act and the Special Marriage Act by virtue of the Marriage Laws (Amendment) Act, 2003, whereby the period of limitation provided for filing an appeal under the Hindu Marriage Act and Special Marriage Act was enhanced to 90 days from 30 based on the observations made by the apex court in Savitri Pandey v. Prem Chandra Pandey (2002) 2 S.C.C. 73 . The Hon'ble Supreme Court has considered the necessity for enlarging the period of limitation to 90 days and wanted indulgence of the Parliament to pass appropriate amendment in this regard. The Hon'ble Supreme Court has considered the necessity for enlarging the period of limitation to 90 days and wanted indulgence of the Parliament to pass appropriate amendment in this regard. It is under such circumstances that the Marriage Laws (Amendment) Act, 2003 was enacted providing 90 days time for filing appeal in respect of matrimonial disputes under the Hindu Marriage Act and the Special Marriage Act. Further, this amendment was brought in only after the Family Court Act came into force. In such circumstances this Court held that whatever rights under the Hindu Marriage Act have to be considered as special provision for appeal and the period of limitation provided therein will prevail over the general law in the nature of the Family Court Act. The legislative intention was clear in this regard. That is not the case here. 6. Section 2 of the Hindu Minority & Guardianship Act, 1956 reads as follows: "Act to be supplemental to Act 8 of 1890.--The provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardian and Wards Act, 1890." It only says that as far as Hindus are concerned, the provisions of the Hindu Minority & Guardianship Act, 1956 will apply and it is only an additional right provided and it does not take away any right vested to the parties under general law namely the Guardian and Wards Act, 1890. 7. Section 5 of the above said Act reads as follows: "Overriding effect of Act.--Save as otherwise expressly provided in this Act,-- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act." That only says that whatever be the rule or interpretation of Hindu Law or any law for the time being in force immediately before the commencement of the Act, it shall cease to have effect with respect to any matter for which provision is made under this Act. Provisions of the present Act will prevail over the pre existing status followed by the Hindus in respect of matters provided under this Act. That will not give any indication as canvassed by the counsel for the appellant, that provisions of Section 24 (8) of the Hindu Marriage Act have to be read into this Act so as to give the period of limitation for filing appeal under this Act. So it is clear that, since there is no appeal provided under the Hindu Minority & Guardianship Act, 1956 in respect of orders passed relating to matters mentioned therein, it will have to take shelter under the umbrella of provisions contained under the Guardian and Wards Act, in respect of appeals to be filed as if it is passed under that Act. So a right of appeal has been provided under Section 47 of the Guardian and Wards Act, 1980. 8. Further, any order passed by the Family Court under Section 7 of the Act, a right of appeal has been provided in respect of certain matters as specifically mentioned in Section 19 of the Family Court Act. So orders passed in respect of matters relating to appointment of Guardian and custody of the child is appealable under Section 19 of the Family Court Act read with Section 47 of the Guardian and Wards Act. 9. In the Guardian and Wards Act, though a right of appeal is provided, no period of limitation is provided for filing the appeal. So under such circumstances, the general law of limitation namely the Limitation Act, 1963 has to be taken as the period for filing the appeal under Article 116 of the Limitation Act. But the Family Court Act, 1984 has come into force in the State of Kerala on 21-10-1989. So it has to be taken as a special law enacted for dealing with matters in connection with any subject-matter coming under Section 7 of the Family Court Act. If an appeal has been provided and the period of limitation has been prescribed for filing appeal under that Act, then that period of limitation will prevail over the general law of limitation governed by the Limitation Act, 1963. If an appeal has been provided and the period of limitation has been prescribed for filing appeal under that Act, then that period of limitation will prevail over the general law of limitation governed by the Limitation Act, 1963. Since Hindu Marriage Act is a self contained Code, in respect of all matters touching the marriage as far as Hindus are concerned, an appeal has been provided and a special period of limitation is also provided under that Act. Then it will be deemed to be a special law relating to that matter though that is being tried under the provisions of the Family Court Act, 1984. The Family Court Act will be deemed to be a general law and Hindu Marriage Act 1956 will have to be treated as special law and the period of limitation provided therein will prevail over the period of limitation provided under the Family Courts Act. As an appeal has been provided under the Hindu Marriage Act itself, in Viswanathan's case (cited supra) this Court held that the period of limitation provided under the Hindu Marriage Act will apply in respect of appeals filed governing matters under that Act, though filed and tried by the Family Court under the Family Court Act. That was not the case here. Counsel for the appellants also relied on an order passed by this Court in Mat. A. No. 193/2014, an appeal filed under the provisions of the Hindu Adoptions & Maintenance Act, 1956. But no principle of law has been laid down in that decision to have a binding effect on us. 10. It is true that there is some lacuna regarding the period of limitation provided for filing appeal under Section 47 of the Guardian and Wards Act being 90 days under Article 116 of the Limitation Act as any order passed under that Act is by District Court and appeal will be to High Court. Even now appointment of guardian for minors in respect of their property has to be filed before the District Court and not before Family Court and in such cases the period of limitation for filing appeal will be 90 days'. This inconsistency has to be resolved by the Legislature and causes omises of the Legislature cannot be substituted by courts is the settled principles of law of interpretation. This inconsistency has to be resolved by the Legislature and causes omises of the Legislature cannot be substituted by courts is the settled principles of law of interpretation. It is high time for the Government to make the period of limitation for filing appeal in Family Court matters also to 90 days in tune with the general law of limitation in this regard. In view of the discussions made above, when an appeal is provided under Section 19 of the Family Court Act read with Section 47 of the Guardian and Wards Act and when there is no period of limitation provided for filing the appeal under the Guardian and Wards Act, the period of limitation provided under Section 19(3) of the Family Court Act will prevail and Section 28(4) of the Hindu Marriage Act cannot be read into the Hindu Minority & Guardianship Act for reckoning the period of limitation as contended by the counsel for the appellants. So, the objection raised by the Registry is sustainable and the appeal will have to be filed within 30 days as provided under Section 19(3) of the Act in this case. Hence the appeal is directed to be returned for curing the defect noted by the Registry. The appellants are granted two weeks time to cure the defects and to represent the appeal with delay condonation application.