S.28 Hindu Marriage Act Prevails Over S.19 Family Courts Act, Time Limit To Prefer Appeal Is 90 Days: Gujarat High Court

The order addresses the confusion created by the two provisions since whereas the appeal prescribed under Section 28 of the Hindu Marriage Act is 90 days from the date of order, Section 19 of the Family Courts Act stipulates only a period of 30 days for filing an appeal.

The division bench of Justice A. J. Desai and Justice Rajendra M. Sareen agreed with the full bench decision of Bombay High Court in Shivram Dodanna Shetty v. Sharmila Shivram Shetty 2017(1) Mh.L.J. in which it was laid down that for an appeal filed under Section 19 of the Family Courts Act, 1984, period of limitation prescribed under Section 28 of the Hindu Marriage Act, 1955 shall apply.

It was the case of the applicant that registry of the high court has raised objection with regard to the delay of seven days by the applicant in filing the first appeal whereas the applicant contended that there was no delay in filing the first appeal in view of the provisions of Section 28(4) of the Hindu Marriage Act, which provides the limitation of 90 days in filing the appeal challenging the judgment and order passed by the Court in the matrimonial proceedings.

Counsel for the applicant, Mr. Kaash Thakkar argued that Family Courts Act, 1984 is a general law whereas the Hindu Marriage Act is a special law enacted for resolving the disputes arising between the husband and the wife with regard to their marriage. He further submitted that Section 28(4) of the Limitation Act, time limit to file appeal against the judgment and order is of 90 days, which was amended in the year 2003 i.e. subsequent to establishment of the Family Courts Act, 1984, and therefore, the limitation of 90 days is to be calculated for the purposes of filing the appeal.

The court observed:

“The Hindu Marriage Act, 1955 was enacted to amend and codify the law relating to marriage among Hindus. Under the aforesaid Hindu Marriage Act, certain provisions have been made to solve the various types of disputes, which may arise between the husband and the wife and the family members i.e. restitution of conjugal rights, judicial separation, divorce, maintaining the spouse, permanent alimony and maintenance, custody of children etc. The parties may seek appropriate relief under the said provisions of Hindu Marriage Act, 1955. When such petitions are filed before the Family Courts under the Family Courts Act, 1984, the Family Court are supposed to follow the provision made under this Act.”

The court further stated:

“Section 28(4) of the Hindu Marriage Act, 1955 was amended in the year 2003 and period of 30 days was extended from 30 days to 90 days in view of the decision of the Hon’ble Supreme Court in the case of Savitry Pandey v. Prem Chandra Pandey reported in AIR 2002 SC 591.”

In conclusion the court ruled that the appeal is maintainable as it is filed within a period of 90 days prescribed under the Hindu Marriage Act, 1955.

Also Read: Rajasthan HC Sets Period Of Limitation For Preferring An Appeal From A Decision Of The Family Court As 90 Days

Case Title: Chaudhary Chetnaben Dilipbhai v. Chaudhary Dilipbhai Lavjibhai

Case Citation: 2023 Livelaw (Guj) 17

Coram: Justice A. J. Desai and Justice Rajendra M. Sareen

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