For an appeal filed under Section 19(1) of Family Courts Act, 1984, period of limitation prescribed under Section 28(4) of Hindu Marriage Act, 1955 shall apply

bombay-hc

Bombay High Court: While deciding upon the issue framed by the Division Bench of this Court that whether an appeal under Section 19(1) of the Family Courts Act, 1984 will be governed by the period of limitation under Section 19(3) of the 1984 Act or whether the period of limitation provided under Section 28(4) of the Hindu Marriage Act, 1955 will apply to such appeal; a three-Judge Bench of the Court comprising of Naresh H. Patil, R.D. Dhanuka and Sadhana S. Jadhav, JJ., considering the schemes and the legislative intent of the aforementioned enactments, held that for an appeal filed under Section 19(1) of the Family Courts Act, 1984, period of limitation prescribed under Section 28(4) of the Hindu Marriage Act, 1955 shall apply. The Court further stated that it would not be correct to apply different periods of limitation to orders passed by the Family Courts and by the regular Civil Courts as such an approach would frustrate the object of legislation.

Assisting the Court in the case, the Amicus Curiae Aspi Chinoy, put forth before the Court that if the  provisions concerned of the Family Courts Act and Hindu Marriage Act are construed and understood then there exists no conflict between them. It was further submitted that the Family Courts Act, 1984 provides for a special forum to decide matrimonial disputes and it also provides for special rules or procedure in such cases. The non obstante provision in this enactment, namely, Section 20, was not enacted with the intention of impliedly repealing the provisions of the substantive law i.e. the Hindu Marriage Act, 1955. Therefore in this context, the non obstante provision prescribed in Section 20 of the Act of 1984 needs to be construed.

Perusing the submissions of the Amicus Curiae, the Bench observed that harmonious interpretation of the two statutes which can advance the legislative intent must be adopted in the present case. As the Hindu Marriage Act was amended by Parliament in the year 2003, 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. The Court further observed that the scheme of the enactments of the Act of 1955 and the Act of 1984, in prescribing the period of limitation and non obstante provision provided in the Act of 1984, there is no clear inconsistency between the two enactments. The Court reiterated the principle of interpretation of statutes which clearly states that for giving an overriding effect to a non obstante provision, there should be clear inconsistency between two enactments. Convinced by the submissions of Amicus Curiae, the Court stated that there is no conflict between the Hindu Marriage Act and the Family Courts Act and that a non obstante clause must be given effect to the extent Parliament intended and not beyond the same, it may be used as a legislative device to modify the scope of provision or law mentioned in the said clause. [Shivram Dodanna Shetty v. Sharmila Shivram Shetty, 2016 SCC OnLine Bom 9844, decided on 01.12.2016]

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