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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 53 of 2019
Preeti Meshram, Aged About 30 Years C/o Shri Vishnu Meshram, R/o
Sehdev Nagar, Tehsil And District Rajnandgaon, Chhattisgarh., District :
Rajnandgaon, Chhattisgarh
—- Appellant
Versus
Himanshu Wasnik S/o Shri Vivek Wasnik Aged About 31 Years R/o
Bharkapara, Near To Kamal Takies, Ward No. 26 Tehsil And District-
Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh
—- Respondent
For Appellants : Shri Kishore Bhaduri and Shri Pushkar Sinha,
Advocates
For Respondent : Shri Shishir Dixit, Advocate
D.B. :Hon’ble Mr. Justice Manindra Mohan Shrivastava
Hon’ble Mrs. Justice Rajani Dubey
CAV Order
On Application for Condonation of Delay in Filing the Appeal
30/09/2019
1. In this appeal, arising out of judgment and decree dated 25.10.2018 passed
by learned Family Court, Rajnandgaon, on a suit/application for grant of
decree of divorce filed by the husband against his wife, upon office
objection that the appeal is barred by 17 days, though an application for
condonation of delay, if any, in filing appeal has been filed, learned counsel
appearing for the appellant would argue that in the matter of appeal under
Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as “HM
Act”), the provision relating to limitation for filing of appeal, as provided
under Section 28 (4), as amended, would govern period of limitation, which
is 90 days. He would argue that notwithstanding provision contained in
Section 19 (3) of the SectionFamily Courts Act, 1985 (hereinafter referred to as “FC
-2-
Act”) which is a later general law, the provision contained in earlier special
law i.e. SectionHindu Marriage Act, 1955 would prevail. It is the contention of
learned counsel for the appellant that the substantive right of appeal
provided under Section 28 (4) of the HM Act is an essential component of
special enactment. According to him, provision relating to limitation for
filing of appeal against judgment or order of the Family Court, as provided
under Section 19 (3) of the FC Act, would be applicable in those cases
where there are no special laws providing for an appeal against an order
passed by the Family Court. He would further argue that the FC Act is not
an enactment dealing with any particular personal law but it is a neutral
law dealing with establishment and functioning of Family Courts. He would
submit that the Full Bench of Bombay High Court and Division Bench of
Allahabad High Court have taken the view that in view of subsequent
amendment carried out in the year 2003 in HM Act, pursuant to judicial
direction of the Supreme Court, the provision relating to limitation of filing
appeal against judgment and decree or an order of Family Court as
provided in Section 28 (4) of the HM Act would be applicable and not the
general provision with regard to appeal as provided under Section 19 (3) of
the FC Act.
2. On the other hand, learned counsel for the respondent, would submit that
even though, FC Act 1984 is a subsequent enactment, it is a self- contained
code dealing with establishment of Family Courts providing special
procedure, diluting rigors of technical laws of procedure, recording of
evidence and collection of evidence and also containing special provision to
encourage settlement of disputes by making it obligatory on the Court to
first make efforts for settlement and it is only in the event that settlement
fails that the Court would adjudicate upon the dispute. He would further
submit that the FC Act is a progressive legislation and contains special
provision with regard to appeal against the order passed by the Family
Courts. It not only provides for period of limitation but also clearly lays
down with overriding effect, the forum where the appeal would lie and also
constitution of the Bench competent to hear such appeals. Giving
overriding effect under Section 20 of the FC Act, it is contended, in so far as
provision relating to appeal as contained in HM Act or any other special
enactment dealing with personal laws are overridden by special provision
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relating to appeal and other incidental provisions, as laid down in Section
19 of the FC Act. He would also submit that amendment carried out in
Section 28 (4) of the HM Act, by enhancing period of limitation would not,
by itself, incorporate parallel amendment under Section 19 (3) of the FC Act
and as long as provision contained in Section 19 (3) of the FC Act exists and
is not amended, the provision of limitation as contained in Section 19 (3) of
the FC Act would be applicable as provision relating to period of limitation
prescribed in Section 28 (4) of the HM Act, being inconsistent, to that
extent, would be ineffective redundant and overridden.
3. Relevant provision of the FC Act which provides period of limitation for
filing appeal is extracted as below:
“19. Appeal-
x x x
(3) Every appeal under this section shall be
preferred within a period of thirty days from
the date of the judgment or order of a Family
Court.”
On the other hand, relevant provision contained in HM Act providing for
limitation for filing appeal is extracted herein below:-
“28 Appeals from decrees and orders-
x x x
(4) Every appeal under this section shall be
preferred within a [period of ninety days] from
the date of the decree or order.”
4. The question which arise for consideration before this Court is as to which
of the two provision relating to prescription of period of limitation for filing
appeal against orders and judgment of the Family Court would be
applicable.
5. SectionThe Hindu Marriage Act, 1955, is an Act to amend and codify the law
relating to marriages amongst Hindus. Prior to enactment of the HM Act,
1955, several legislations dealing with marriages amongst Hindus, various
aspects thereof were enacted from time to time, one of the earliest law
being Abolition of Sati custom by law, followed by Hindu Widows’ Re-
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marriage Act 1856, Prohibition of polygamy and many of the legislations
dealing with Anand Marriage, Aarya Marriage etc. The HM Act, 1955 deals
especially with laws of marriage amongst Hindus. It contains provision as
to marriages and also when a marriage amongst Hindus would be void and
when it would be voidable. There are provisions with regard to legitimacy
of children of void and voidable marriages. SectionThe Act also contains provision
relating to punishment of bigamy and also for contravention of certain
other conditions for Hindu marriage. It also contains provisions regulating
divorce. It also contains provision relating to grant of maintenance
pendente lite expenses of proceedings and permanent alimony and
maintenance. SectionThe Act also deals with custody of children, and disposal of
property. Sections 19 to 28 of the HM Act, 1955 deals with jurisdiction and
procedure. These special provisions provide for the Court to which petition
would be presented, contents and verification of the petitions, special
provision relating to trial and disposal of petitions under the Act,
documentary evidence, provision for holding proceedings in camera and
also provision with regard to appeal from decree or orders. Section 28 of
the HM Act deals with appeals from decree and orders which being
relevant is extracted hereinbelow:-
“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 in exercise of its original civil jurisdiction.
(2) Orders made by the court in any
proceeding under this Act under section 25 or
section 26 shall, subject to the provisions of sub-
section (3), be appealable if they are not interim
orders, and every such appeal shall lie to the court
to which appeals ordinarily lie from the decisions of
the court given in exercise of its original civil
jurisdiction.
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(3) There shall be no appeal under this section
on the subject of costs only.
(4) Every appeal under this section shall be
preferred within a [period of ninety days] from the
date of the decree or order.”
6. Thus, the HM Act of 1955, being a legislation of the nature of consolidating
and amending act, comprehensively and exhaustively dealing with a
particular branch/aspect of personal law of Hindu, is a self contained code
of special nature and is certainly a SectionSpecial Act.
7. The FC Act 1984 was enacted to provide for the establishment of Family
Court with a view to promote conciliation in and secure speedy settlement
of dispute relating to marriages and family affairs and for matters
connected therewith. It contain provisions with regard to establishment of
Family Courts and also lays down specific provision relating to appointment
of judges and their qualifications for appointment as such. Special
provision in the matter of selecting person for appointment as Judges of
Family Courts have also been made. SectionThe Family Courts Act is a
comprehensive legislation which aims at radicalizing the procedural laws of
adjudicatory process simplifying and diluting the rigor of technicality of
procedure, collection of evidence. One of the prominent feature of the
SectionFamily Courts Act is introduction of a mandatory provision contained in
Section 9, imposing duty on the Family Court to make all endeavor and
efforts to bring about settlement of the dispute to protect and preserve the
institution of marriage. SectionThe Act mandates such settlement, efforts to be
carried out as the first recourse and adjudication as last resort.
Not only this, to assist Family Court in discharge of its duties and function
in deciding the dispute and to better equip such Family Courts to deal with
sensitive and intricate dispute of family, it contains provision with regard to
association of social welfare agency and appointment of counsellor as such
and other employees required to assist Family Court in discharge of its
function. It also restricts right to legal representation. Section 20 of the Act
gives overriding effect. Section 19 of the Act deals with provision relating to
appeals and revision. It being relevant, is extracted below :-
“19. Appeal.- (1) Save as provided in sub-section (2)
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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 SectionFamily Courts (Amendment)
Act, 1991].
(3) Every appeal under this 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.”
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8. It needs to be noticed that the SectionFamily Courts Act, 1984 does not deal with
personal laws but only seeks to establish regime of Family Courts with
certain special provision relating to appointment of Judges, jurisdiction and
procedure. Irrespective of any personal law of any religion, the SectionFamily
Court Act governs adjudication of disputes which fall within its jurisdiction
as provided under Section 7 thereof.
9. Thus, upon examination of two enactments, it is clearly discernible that
while SectionHindu Marriage Act, 1955 is special law dealing with a particular
aspect of marriages amongst Hindus, the SectionFamily Courts Act, 1984 is a
neutral law applicable irrespective of any personal law and one can say that
SectionHindu Marriage Act, as compared to SectionFamily Courts Act, is more special in
nature.
Further more, it is also evidently clear that both the legislations operate in
different field. SectionWhile the Hindu Marriage Act especially deals with rights
and obligations arising out of and in connection with marriages amongst
Hindus, the SectionFamily Courts Act, is in the nature of progressive legislation of
general application, aimed at establishing Family Courts having jurisdiction
of wide amplitude as provided under Section 7 of the Act and does not deal
with substantive right and obligation arising out of marriage or other
aspect of any personal law.
10.It is also relevant to note that both the Act contain overriding clause. While
Section 4 of the Hindu Marriage Act, 1955 gives it an overriding effect,
SectionFamily Courts Act, 1984 contains overriding clause under Section 20 of the
Act. The overriding clauses, one contained in HM Act and the other in FC
Act, are reproduced hereinbelow:-
” SectionThe Hindu Marriage Act, 1955
4. 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;
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(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.
SectionThe Family Courts Act, 1984
20. Act to have overriding effect.-The provisions
of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any
other law for the time being in force or in any
instrument having effect by virtue of any law other
than this Act.”
11.However, both the Acts contain provision with regard to appeals. While
Section 28 of the HM Act provides for appeal against decree made by the
Court in any proceeding under the said act providing that appeal shall lie
to the Court to which appeals ordinarily lie from the decision of the Court
given in exercise of its original jurisdiction, as provided in sub-section (1) in
Section 28 thereof, sub-section (1) of Section 19 of the FC Act beginning
with a non-obstante clause, provides that 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. Reading of the non-obstante
clause reveals that overriding effect has been given notwithstanding
anything contained in the Code of Civil Procedure, 1908 or in the Code of
Criminal Procedure, 1973 or in any other law, indicative of it being
sweeping in nature.
While there is no such explanation in Section 28 of the HM Act, sub-Section
(2) of Section 19 of the FC Act carves out exception where no appeal shall
lie or 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.
On further comparison, a clear inconsistency arises when Section 28 (4) of
the HM Act, as amended in the year 2003, provides that the period of
limitation in filing appeal would be 90 days from the date of decree or
order, a restrictive provision is contained in sub-section (3) of Section 19 of
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the FC Act that the appeal shall be preferred within a period of 30 days
from the date of the judgment or order of the Family Court.
12.Another striking feature of Section 19 of the FC Act which does not find
place in the HM Act is that Section 19 (4) of the FC Act confers
supervisory /revisional jurisdiction upon the High Court.
There is special provision contained in Section 19 (6) of the FC Act that
appeal shall be heard by a Bench consisting of two or more Judges.
13.Comparison of the provisions contained in the two enactments, dealing
with appeal to higher Courts, clearly gives rise to certain conflicts, which
have been noted as above. It is also worth-noticing that provision
contained in sub-Section (1) of Section 19 of the FC Act opens with a non-
obstante clause.
14.For our purposes, it is the conflict with regard to prescription of period of
limitation which needs to be resolved, in the background that one is earlier
special law and the other is general later law, both containing overriding
clauses.
15.The principles applicable for resolution in the event of conflict between
earlier special law and subsequent general law, have been elaborately
clarified by the Apex Court in plethora of its decisions. In the case of
Sanwarmal Kejriwal Vs. Vishwa Cooperative Housing Society Ltd. and
Ors. (1990) 2 SCC 288, while examining and resolving conflict between the
provisions contained in two enactments, one relating to eviction and other
dealing with cooperative societies and noticing conflicting provision vesting
jurisdiction under two different laws opening with a non-obstante clause
and investing jurisdiction in different Courts, it was held :
“21. But what happens when competing provisions
vesting jurisdiction under different laws open with a
non-obstante clause and invest jurisdiction in
different Courts? SectionThe Societies Act under Section
91(1) confers jurisdiction on the Cooperative Court
while Section 28 of the Rent Act confers jurisdiction
on the Court of Small Causes, Bombay. This Court
observed in SectionDeccan Merchants Cooperative Bank,
-10-Limited v. Dali Chand Jugraj Jain, [1969] 1 SCR 887
that ‘the two Acts can be harmonised best by
holding that in matters covered by the SectionRent Act, its
provisions, rather than the provisions of the Act,
should apply’. This view was approved in
Bhatnagar’s case also. SectionIn Co-operative Central Bank,
Ltd. v. Additional Industrial Tribunal, Andhra Pra-
desh, [1970] 1 SCR 205 also this Court was required
to harmonise the competing provisions in Section
61 of the A.P. Co-operative Societies Act, which is
substantially the same as Section 91(1) of the
Societies Act, and Section 10(1)(d) of the Industrial
Disputes Act. This Court applying the test laid down
in Deccan Merchants Co-operative Bank’s case held
that a dispute relating to the service condition of an
employee of the society would properly be
governed by the SectionIndustrial Disputes Act.
22. It was, however, submitted by the learned
counsel for the society that the earlier enactment
i.e. the SectionRent Act must yield to the later Act, i.e. the
SectionSocieties Act, if the competing provisions of the two
cannot be reconciled–lex posterior derogate priori.
SectionBut the Rent Act is special law extending protection to
tenants, just as the SectionIndustrial Disputes Act which
makes provision for the benefit of the workmen.
Ordinarily, therefore, a general provision, a dispute
touching the business of the society, would have to
give way to the special provision in the SectionRent Act on themaxim generalia specialibus non derogant. “…..
16.In the case of R.S. Raghunath Vs.State of Karnataka Anr. 1992 (1) SCC
335, the principles was explained as below:-
“7………But it has to be noted at this stage that we
are concerned with the enforceability of special
law on the subject in spite of the general law. In
-11-Maxwell on the Interpretation of Statutes, Eleventh
Edition at page 168, this principle of law is stated
as under:
“A general later law does not abrogate an
earlier special one by mere implication. Generalia
specialibus non derogant, or, in other words,”
where there are general words in a later Act
capable of reasonable and sensible application
without extending them to subjects specially dealt
with by earlier legislation, you are not to hold that
earlier and special legislation indirectly repealed,
altered, or derogated from merely by force of such
general words, without any indication of a
particular intention to do so. In such cases it is
presumed to have only general cases in view, and
not particular cases which have been already
otherwise provided for by the special Act.”
SectionIn Maharaja Pratap Singh Bahadur v. Thakur
Manmohan Dey and ors. ,AIR 1966 S.C. 1931,
applying this principle it is held that general law
does not abrogate earlier special law by mere
implication. In Eileen Louise Nicoole v. John Winter
Nicolle, [1992] 1 AC 284, Lord Phillimore observed
as under:
“It is no doubt a sound principle of all
jurisprudence that a prior particular law is not
easily to be held to be abrogated by a posterior
law, expressed in general terms and by the
apparent generality of its language applicable to
and covering a number of cases of which the
particular law is but one. This as a matter of
jurisprudence, as understood in England, has been
laid down in a great number of cases, whether the
prior law be an express statute… or be the
underlying common or customary law of the
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country.
….’Where there are general words in a
later Act capable of reasonable and sensible
application without extending them to subjects
specially dealt with by earlier legislation… that
earlier and special legislation is not to be held
indirectly repealed, altered or derogated from
merely by force of such general words, without any
indication of a particular intention to do so.”
SectionIn Justiniane Augusto De Piedade Barreto v. Antonio
Vicente Da Fortseca and others etc., [1979] 3 SCC 47,
this Court observed that a law which is essentially
general in nature may contain special provisions on
certain matters and in respect of these matters it
would be classified as a special law. Therefore
unless the special law is abrogated by express
repeal or by making provisions which are wholly
inconsistent with it, the special law cannot be held
to have been abrogated by mere implication.”
In the case of Jay Engineering Works Ltd. Vs. Industry Facilitation
Council Anr.(2006) 8 SCC 677, basic rules of harmonious construction
were discussed in the background that the Acts under consideration were
held operating in different fields and also containing non-obstante clause,
as below:
“25. SectionIn Allahabad Bank v. Canara Bank and Another
[(2000) 4 SCC 406], this Court held :
“39. There can be a situation in law where
the same statute is treated as a special statute vis-
a-vis one legislation and again as a general statute
vis-a-vis yet another legislation”
28. SectionBoth the Acts contain non-obstante clauses.
Ordinary rule of construction is that where there
are two non-obstante clauses, the latter shall
prevail. But it is equally well-settled that ultimate
conclusion thereupon would depend upon the
-13-limited context of the statute. [See Allahabad Bank
(supra) para 34].
30. SectionIn Sarwan Singh and Another v. Shri Kasturi Lal
[(1977) 1 SCC 750], this Court opined :
“When two or more laws operate in the
same field and each contains a non-obstante
clause stating that its provisions will override those
of any other law, stimulating and incisive problems
of interpretation arise. Since statutory
interpretation has no conventional protocol, cases
of such conflict have to be decided in reference to
the object and purpose of the laws under
consideration”
31. The endeavour of the court would, however,
always be to adopt a rule of harmonious
construction.”
17.In another decision in the case of Bank of India Vs. Ketan Parekh Ors.
(2008) 8 SCC 148, noticing that one of the two Acts was comparatively
general in nature, it was propounded thus :-
“28. In the present case, both the two Acts i.e. the
Act of 1992 and the Act of 1993 start with the
non- obstante clause. Section 34 of the Act of
1993 starts with non-obstante clause, likewise
Section 9-A of the Act of 1992. But incidentally, in
this case Section 9-A came subsequently, i.e. it
came on 25.1.1994. Therefore, it is a subsequent
legislation which will have the over-riding effect
over the Act of 1993. But cases might arise where
both the enactments have the non-obstante
clause then in that case, the proper perspective
would be that one has to see the subject and the
dominant purpose for which the special
enactment was made and in case the dominant
purpose is covered by that contingencies, then
-14-notwithstanding that the Act might have come at
a later point of time still the intention can be
ascertained by looking to the objects and reasons.
However, so far as the present case is concerned,
it is more than clear that Section 9-A of the Act of
1992 was amended on 25.1.1994 whereas the Act
of 1993 came in 1993. Therefore, the Act of 1992
as amended to include Section 9-A in 1994 being
subsequent legislation will prevail and not the
provisions of the Act of 1993. ”
18.It has to be noticed that in aforesaid two decisions i.e. Jay Engineering
Works Ltd. (supra) and Bank of India (supra), a subsequent amendment
carried out in the existing legislation was given due weightage to infer
legislative intention.
19. Section 19 (1) of the FC Act begins with non-obstante clause of sweeping
nature. overriding provision contained in Code of Civil Procedure, 1908,
Code of Criminal Procedure,1973 or any other law. Though Section 19 (1) of
the FC Act contains a non obstante clause and FC Act is given an overriding
effect under Section 20 thereof, it is equally settled legal position that while
dealing with non-obstante clause under which the legislature wants to give
overriding effect to a Section, the Court must try to find out the extent to
which the legislature had intended to give one provision overriding effect
over another provision. In the case of A.G. Varadarajulu Anr. Vs. State
of T.N. Ors.1998 (4) SCC 231, it was held:
“16. It is well settled that while dealing with a non
obstante clause under which the legislature
wants to give overriding effect to a section, the
Court must try to find out the extent to which the
legislature had intended to give one provision
overriding effect over another provision. Such
intention of the legislature in this behalf is to be
gathered from the enacting part of the section. In
Aswini Kumar Vs. Arabinda Bose, [AIR 1952 SC
369] Patanjali Sastri. J observed:
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“The enacting part of a statute must, where
it is clear, be taken to control the non-obstante
clause where both cannot be read
harmoniously”.
In Madhav Rao Scindia Vs. Union of India [1971
(1) SCC 85 139] Hidayatullah. CJ observed that the
non-obstante clause is no doubt a very potent
clause intended to exclude every consideration
arising from other provisions of the same statute
or other statute but “for that reason alone we
must determine the scope” of that provision
strictly. When the section containing the said
clause does not refer to any particular provisions
which it intends to override but refers to the
provisions of the statute generally, it is not
permissible to hold that it excludes the whole Act
and stands all alone by itself. “A search has,
therefore, to be made with a view to determining
which provision answers the description and
which does not”.
20.In the case of ICICI Bank Ltd. (since substituted by Standard Chartered
Bank) Vs. Sidco Leathers Ltd. And Ors. (2006) 10 SCC 452, it was held
that the interpretative process must be kept confined to legislative policy
and must be given effect to, to the extent Parliament intended and not
beyond the same. It was observed thus:
“36. The non-obstante nature of a provision although
may be of wide amplitude, the interpretative process
thereof must be kept confined to the legislative
policy. Only because the dues of the workmen and
the debt due to the secured creditors are treated pari
passu with each other, the same by itself, in our
considered view, would not lead to the conclusion
that the concept of inter se priorities amongst the
secured creditors had thereby been intended to be
-16-given a total go-by.
37. A non-obstante clause must be given effect to, to
the extent the Parliament intended and not beyond
the same.”
21.Section 28 (4) of the HM Act was amended vide SectionAmendment Act No.50 of
2003 consequent upon observation made by the Supreme Court, in the
case of Savitri Pandey Vs. Prem Chandra Pandey (AIR 2002 SC 591). That
was a case where the Supreme Court, dealing with matrimonial case in the
light of the provision contained in SectionHindu Marriage Act, observed that the
period of limitation prescribed for filing of appeal under Section 28(4) is
apparently inadequate which facilitates the frustration of the marriages by
the unscrupulous litigant spouses. The observation made by their
Lordships in the aforesaid decision, which led to amendment in Section
28(4) of the HM Act, is as below:-
“18. At this stage we would like to observe that
the period of limitation prescribed for filing the
appeal under Section 28(4) is apparently
inadequate which facilitates the frustration of the
marriages by the unscrupulous litigant spouses.
In a vast country like ours, the powers under the
Act are generally exercisable by the District Court
and the first appeal has to be filed in the High
Court. The distance, the geographical conditions,
the financial position of the parties and the time
required for filing a regular appeal, if kept in
mind, would certainly show that the period of 30
days prescribed for filing the appeal is insufficient
and inadequate. In the absence of appeal, the
other party can solemnise the marriage and
attempt to frustrate the appeal right of the other
side as appears to have been done in the instant
case. We are of the opinion that a minimum
period of 90 days may be prescribed for filing the
appeal against any judgment and decree under
the Act and any marriage solemnised during the
-17-aforesaid period be deemed to be void.
Appropriate legislation is required to be made in
this regard. We direct the Registry that the copy
of this judgment may be forwarded to the
Ministry of Law Justice for such action as it may
deem fit to take in this behalf.”
22.The observation made by the Supreme Court regarding inadequacy of the
provision of appeal and a message to the Legislator to consider appropriate
amendment, resulted in amendment in Section 28 (4) of the HM Act by the
Parliament vide SectionAmendment Act No.50 of 2003. It is extremely relevant for
the purposes of ascertaining legislative intention that when an occasion
arose for amendment in the provision with regard to limitation for filing
appeal against the decree or order passed by the Family Court in the
matter of dispute relating to marriage governed by the provision of the HM
Act, 1955, the legislator chose to amend Section 28 (4) of the SectionHindu
Marriage Act, 1955and not Section 19 (3) of the SectionFamily Courts Act, 1984. It
is well settled legal position that while legislating, the legislator is presumed
to be aware of the existence of provision relating to appeal as contained in
Section 19(3) of the FC Act.
23.The aforesaid legislative Act of amendment of Section 28 (4) of HM Act so
as to enhance the period of limitation than what already existed under pre-
existing Section 28 (4) of the HM Act or Section 19 (3) of the FC Act clearly
reflects upon legislative intention of saving provision with regard to
limitation for filing appeal under Section 28 of the Hindu Marriage Act from
the rigor and reach of overriding effect of provision relating to appeal, as
contained in Section 19 (3) of the SectionFamily Courts Act. In other words,
subsequent amendment in 2003, as referred to hereinabove, limits the
overriding effect of Section 19(3) of the FC Act, which it may have by virtue
of non-obstante clause so as not to override provision with regard to
limitation as contained in Section 28 (4) of the HM Act, as amended vide
SectionAmendment Act No. 50 of 2003. The three decisions A.G. Varadarajulu
(supra), Sidco Leathers Ltd. (supra) and Savitri Pandey (supra)referred to
hereinabove settle an important principle of interpretation that intention of
legislator is relevant to either restrict or extend the scope, ambit and reach
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of a non- obstante and overriding clause.
24.Indeed, such an interpretation, which we have drawn as above, is
inescapable, otherwise, the very object of legislation in amending Section
28 (4) of the HM Act will be frustrated and amended provision would be
rendered meaningless, redundant and otiose.
An interpretation which renders futile a legislative exercise must be
avoided. Furthermore, in holding that provision of Section 28 (4) of the HM
Act, providing for limitation of appeal are not overridden by prescription of
appeal as provided in Section 19 (3) of the SectionFamily Courts Act, it leads to
harmonious interpretation of the two provisions, inconsistent with each
other, contained in two legislations operating in different fields, as held in
Jay Engineering Works Ltd. (supra).
25.We must, however, hasten to add and clarify that the aforesaid conclusion
is based mainly in the light of amendment carried out by the Legislature in
Section 28(4) of the HM Act, in the year 2003 when the provisions contained
in Section 19 (3) of the FC Act were already subsisting. Other provision
contained in Section 19 of the FC Act which provide for special forum and
the constitution of Benches and all other provisions contained therein will
have overriding effect. It is only because of amendment of Section 28 (4) of
the HM Act that we have drawn the aforesaid conclusion that in the matter
of limitation for filing an appeal against judgment and order arising out of
dispute concerning marriages, governed by the SectionHindu Marriage Act, 1955,
that the provision relating to appeal, as contained in Section 28 (4) thereof,
will hold field and not overridden by period of appeal as provided under
Section 19 (3) of the FC Act, 1984.
26.In taking the aforesaid view, we are in respectful agreement with Full Bench
decision of the Bombay High Court in the case of Shivram Dodanna
Shetty Vs. Sharmila Shivram Shetty reported in 2017 (1) Mh.L.J. 281 and
the Division Bench judgment of Allahabad High Court in the case of
Smt. Gunjan Vs. Praveen reported in AIR 2017 ALL. 237, relying upon full
Bench Judgment of the Bombay High Court.
27.As this appeal arises out of order passed by the Family Court whereby a
decree of divorce has been granted under Section 13 (1) of the HM Act
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1955, the period of limitation for filing appeal would be 90 days as provided
under Section 28 (4) of the HM Act and not 30 days as provided under
Section 19 (3) of the FC Act. The Office objection, therefore, is overruled
and the appeal is treated to be within limitation. The application for
condonation of delay in filing appeal is unnecessary and is therefore
disposed off.
28.List this appeal for further orders after two weeks.
Sd/- Sd/- —
(Manindra Mohan Shrivastava) (Rajani Dubey)
29. Judge Judge
Praveen
