A division bench of the Rajasthan High Court while harmonizing the provisions contained under Section 19 of the Family Courts Act, 1984 and Section 28 of the Hindu Marriage Act, 1955, held that the period of limitation for preferring an appeal from a decision of the Family Court is 90 days.
The order addresses the confusion created by the two provisions since whereas the appeal prescribed under the Hindu Marriage Act is 90 days from the date of order, the Family Courts Act stipulates only a period of 30 days for filing an appeal.
Considerably, the period of limitation under the Hindu Marriage Act was amended on the basis of a suggestion given by the Apex Court in Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591. It was observed therein that the period of limitation prescribed for filing appeal under Section 28(4) was inadequate and facilitated frustration of marriages by "unscrupulous litigant spouses".
In this regard the Supreme Court said,
"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 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."
A similar view was also taken by a full bench of the Bombay High Court Shivram Dodanna Shetty v. Sharmila Shivram Shetty, 2017 (1) Mh.L.J. 281. The bench observed therein,
"While amending the provisions, the Parliament was aware of the existence of the Act of 1984. It is presumed that the Parliament was conscious of the existence of another statute relating to the subject, prescribing forum and procedure and period of limitation. Therefore, a harmonious interpretation which would advance the object and purpose of the legislation will have to be adopted.
As the Act of 1955 was amended by the Parliament in the year 2003, in that sense, the period of limitation of ninety days was prescribed by a later law which would override the provisions relating to period of limitation prescribed in the earlier enactment i.e. Act of 1984."
Accordingly, the bench of Justice Mohammad Rafiq and Justice Narendra Singh Dhaddha held,
"we are inclined to follow the view taken by the Bombay High Court, which in any case, was also the view taken by this Court in Smt. Anita Chaudhary (supra). Since this appeal has been filed within 90 days which is prescribed period of limitation under Section 28(4) of the Act of 1955, the same is held to be within limitation."
The court also directed the high court registry to treat all such appeals, which are filed against the judgment and decree passed by the Family Court within period of limitation, if such appeals are filed within 90 days.
The order was issued in an appeal titled Kuldeep Yadav v. Anita Yadav, which the Registry held to be barred by limitation having been filed with delay of 57 days.
The arguments in the case were advanced by counsel for the Petitioner, Advocate Ganesh Khanna, assisted by Advocate Shiven Gupta.
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