Ms Zenoba Irani/Nair for the appellant Mr.Nitin Dalvi for the respondent CORAM : A.S.OKA, & A.S.GADKARI, JJ. DATE : DECEMBER 10,2014

Size: px

Start display at page:

Download "Ms Zenoba Irani/Nair for the appellant Mr.Nitin Dalvi for the respondent CORAM : A.S.OKA, & A.S.GADKARI, JJ. DATE : DECEMBER 10,2014"

Maurice Dickerson
5 years ago
Views:

1 1 fca161 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FAMILY COURT APPEAL NO.161 OF 2013 Shivram Dodanna Shetty vs. Sharmila Shivram Shetty Ms Zenoba Irani/Nair for the appellant Mr.Nitin Dalvi for the respondent P.C.: CORAM : A.S.OKA, & A.S.GADKARI, JJ. DATE : DECEMBER 10, Appellant...Respondent 1 Admit. The Advocate for the respondent waives service. The Appeal is admitted subject to objection of the Respondent as regards the bar of limitation. Printing is dispensed with. The Advocate for the appellant states that paper book has been already filed. 2 The issue which arises for consideration in this Appeal is as regards the period of limitation available for preferring an appeal against a decree passed by the Family Court. As far as the present appeal is concerned, the impugned decree of divorce has been passed on 22 nd April 2013 on the petition filed by the respondent wife. The Memorandum of Appeal was lodged in this Court on 3 rd July In the Memorandum of appeal, it is stated that the certified copy of the Judgment and decree was applied for by the appellant husband on 23 rd April ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:47 :::

2 2 fca and that the certified copy was received on 17 th May The appeal proceeds on the footing that the period of limitation available for preferring an appeal is of 90 days. The issue of limitation in this appeal is very relevant in the context of section 15 of the Hindu Marriage Act,1955 (for short the said Act of 1955 ) as it is the case of the respondent that she has remarried on 9 th July If the prescribed period of limitation for preferring a Family Court Appeal is taken as 90 days, the marriage will be illegal being contrary to section 15 of the said Act of If the period of limitation is taken as 30 days, the embargo under section 15 of the said Act of 1955 will not apply. 3 The contention of the learned counsel for the appellant is that the period of limitation of 90 days is available as provided under section 28 of the said Act of She has placed reliance on the order dated 25 th April 2007 passed by a Division Bench of this Court in Civil Application No.88 of 2007 in Family Court Appeal St.No.8906 of 2007 (Milan Tandel vs. Laxman K. Tandel). The issue which is decided by the said order is as regards the period of limitation available for preferring an appeal against a decree passed by a Family Court in the proceedings under the said Act of As the order dated 25 th April 2007 is short, we quote the entire order which reads thus:. The learned counsel for the applicant has drawn the attention of this Court to the ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:47 :::

3 3 fca161 amendment to the Hindu Marriage Act,1955 which has been incorporated by the Marriage Laws (Amendment) Act,2003 and notified in the official gazette on wherein it is provided under section 5, that in section 28 of the Hindu Marriage Act, in sub section (4), for the words period of thirty days, the words period of ninety days shall be substituted which provides for appeals from decrees and orders made by the Courts under any provisions of the Hindu Marriage Act,1955. In view of this, the limitation provided under the special statute which would govern the field rather than provided under the Family Courts Act under section 19, Chapter V which provides for the period of limitation in respect of judgments and orders passed by the Family Court on the various subjects which the Family Court is competent to pass is in the nature of general provision and, therefore, the period of limitation provided under the Special Act would override the period of limitation provided under the Family Courts Act,1984 and, therefore, as the appeals have been filed within a period of 90 days, they are to be held to be within limitation and, therefore, the objection does not survive and the applications for condonation of delay in filing the appeals are unwarranted as the appeals are filed within 90 days which is the period provided under section 28 of the Hindu Marriage ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:47 :::

4 4 fca161 Act,1955. The office is directed to register the appeals and list them for admission. S.O to Thus, it is held that the period of limitation applicable to an appeal under sub section (1) of Section 19 of the Family Courts Act, 1984 (for short the said Act of 1984 ) will be as provided in subsection (4) of Section 28 of the said Act of 1955 and not as provided in sub section (3) of Section 19 of the said Act of It is well settled law that no litigant has an inherent right of appeal and the right of appeal is always created by a statute. 5 As far as the said Act of 1984 is concerned, a Family Court is vested with jurisdiction to deal with various categories of suits and matters which are provided in section 7 thereof. Clause (a) of sub section (1) of section 7 confers jurisdiction on the Family Court to decide a suit or the proceeding between the parties to a marriage for decree of nullity of marriage or for restitution of conjugal rights or for judicial separation or for dissolution of marriage. Thus, a petition filed for claiming various reliefs under Chapter III and IV of the said Act of 1955 is maintainable in a Family Court if the cause of action for filing the petition arises within the territorial jurisdiction of a Family Court. In all other cases, petitions filed under Chapter III and IV of the said Act of 1955 will be ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:47 :::

5 5 fca161 maintainable before the Court provided under the said Act of Section 19 of the said Act of 1955 provides that every such petition shall be presented to the District Court within the local limits of whose ordinary original jurisdiction, the cause of action arises. The District Court is defined under clause (b) of section 3 which reads thus: (b) district Court means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt within this Act; 6 It will be necessary to make a reference to the provisions of an appeal under the said Act of Section 19 of the said Act of 1984 reads thus: 19. Appeal (1) Save as provided in sub section (2) 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 ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:47 :::

6 6 fca161 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 Family 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 ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:47 :::

7 7 fca161 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. 7 Therefore, under the said Act of 1984, a right of appeal is available against every Judgment and order of the Family Court provided the order is not an interlocutory order. The appeal lies to this Court. In view of sub section(6) of section 19 of the said Act of 1984, an appeal is required to be heard by a Bench of two or more Judges. Sub section (3) provides for a period of limitation of 30 days for preferring an Appeal. 8 As far as a right of appeal under the said Act of 1955 is concerned, same is provided under section 28. Section 28 reads thus: 28 Appeals from decrees and orders. (1) All decrees made by the Court in any proceedings 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 ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:48 :::

8 8 fca161 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. (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. 9 Thus, under section 28 of the said Act of 1955, appeals are not provided against every order and decree as in the case of section 19 of the said Act of Under sub section (1) of section 28, an appeal is maintainable only against decrees made by the Court in exercise of its original civil jurisdiction. Sub section (2) provides that the orders made by the Court under Sections 25 or 26 in any proceedings under the said Act of 1955 are appealable provided they are not interim orders. Under section 28, Forum of appeal is different in the sense that if the decree is passed by the Civil Court, the appeal will lie to the District Court. Only if the decree is passed by the District Court that an appeal is maintainable before this Court. Initially, sub section (4) of section 28 provided for a period of limitation of 30 days which by the Act No.50 of 2003 was modified as 90 days. ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:48 :::

9 9 fca We are dealing with an appeal under sub section (1) of section 19 of the said Act of For such appeals, sub section (3) of section 19 provides for a period of limitation of 30 days. Sub section 1 of section 19 of the said Act of 1984 provides for an appeal against the decrees and orders passed by the Family Courts whereas section 28 of the said Act of 1955 provides for appeals against the decrees passed by the District Court as defined in clause (b) of section 3 of the said Act of As an the appeal is creation of a statute, the same will be governed by the period of limitation provided in the statute which creates the appeal. At this stage, it will be necessary to make a reference to sub section (2) of section 29 of the Limitation Act,1963 which reads thus: 29 (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:48 :::

10 10 fca161 special or local law. 12 Going by the provisions of Article 116 of the Limitation Act,1963, period of limitation of 90 days has been provided to prefer an appeal to this Court from any decree or order. The period of limitation provided under sub section (3) of section 19 of the said Act of 1984 is different from the period provided under Article 116 of the Limitation Act,1963. Therefore, by operation of sub section (2) of section 29 of the Limitation Act,1963, by a legal fiction, the period of limitation under subsection (3) of section 19 of the said Act of 1984 will form a part of the schedule to the Limitation Act, A right of Appeal provided under sub section (1) of section 19 of the said Act of 1984 is distinct and different from a right of Appeal provided under the said Act of Thus, it appears to us that the period of limitation provided under sub section (4) of section 28 of the said Act of 1955 will govern the appeals under sub section (1) and (2) of section 28 of the said Act of On the other hand, an appeal under sub section (1) of section 19 of the said Act of 1984 will be governed by the limitation specifically provided in sub section (3) of section 19 of the said Act of Moreover, section 20 of the said Act of 1984 gives overriding effect to the said Act of 1984 notwithstanding anything inconsistent therewith contained in any other law for the time being in ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:48 :::

11 11 fca161 force. 14 In short, in our considered view, this appeal being an appeal under sub section (1) of section 19, the period of limitation provided under sub section (3) of section 19 will govern the appeal and the period of limitation will be of 30 days. This Appeal will not be governed by the period of limitation period provided under sub section (4) of section 28 of the said Act of 1955 which is applicable only to the Appeals provided under section 28 of the said Act of Hence, in our considered opinion, the view expressed by the Division Bench in the aforesaid Judgment and Order dated 25 th April 2007 needs re consideration by a larger Bench. In our view, following issue will have to be decided by the Larger Bench: Whether an appeal under sub section (1) of section 19 of the Family Court Act,1984 will be governed by the period of limitation under sub section (3) of section 19 or whether the period of limitation provided under sub section (4) of section 28 of the Hindu Marriage Act,1955 will apply to such Appeal? 15 The period of limitation for preferring an appeal under sub section (1) of section 19 of the Family Court Act,1984 is very significant in the context of section 15 of the said Act of Section 15 provides that when a marriage has been dissolved by a decree of divorce, it becomes lawful for either parties to marry again provided the ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:48 :::

12 12 fca161 prescribed period of limitation is over and no appeal is preferred within the prescribed period of limitation. The decision on the aforesaid question will affect large number of Family Court Appeals. Hence, we direct the Registrar (Judicial I) to immediately place this appeal before the Hon'ble the Chief Justice in accordance with Rule 7 of Chapter I of the Appellate Side Rules, 1960 for passing the appropriate orders. (A.S.GADKARI,J.) (A.S.OKA,J.) ::: Uploaded on - 29/12/2014 ::: Downloaded on - 06/12/ :56:48 :::

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 161 OF 2013

pdp 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 161 OF 2013 Shri Shivram Dodanna Shetty Aged 54 years, Occupation : Service, Residing at Building No.