Raj HC | Period of limitation for preferring an appeal against a decision of Family Court is 90 days; S. 28 of HMA, 1955, to override the Family Courts Act

Rajasthan High Court: A Division Bench of  Mohammad Rafiq and  Narendra Singh Dhaddha, JJ.  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 was 90 days.

A defect was pointed out in view of Section 19(3) of the Family Court Act, 1984, wherein the period of limitation for filing an appeal against the judgment of the Family Court was 30 days and the present appeal was thus barred by limitation having been filed with a delay of 57 days.

The appellant relied on the order passed by the present Court in Anita Chaudhary v. Rajesh Chaudhary, (D.B. Civil Misc. Appeal No. 2586/2017) wherein also the Registry, taking note of Section 19(3) of the Family Court Act, 1984, pointed out a delay in filing of appeal but considering provisions of Section 28(4) of the Hindu Marriage Act, 1955 which postulated a period of 90 days for filing of the appeal against any decree or order passed under the provisions of the Act of 1955, this Court directed that the appeal be considered as competent having been filed within the prescribed period of limitation.

The Supreme Court in Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73 had held that: “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 period of 30 days prescribed for filing the appeal are insufficient and inadequate. In the absence of an appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side. 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.”

Even if both the Acts are considered on certain subjects and situations to be special and general, then also, as a matter of sound interpretation and keeping in view the purpose for providing a larger period of limitation, it must be construed that the appeals arising out of the judgment and orders passed by the Family Court shall be governed by a larger period of limitation prescribed under Section 28(4) of the Act of 1955. Since an appeal had been filed within 90 days which was the prescribed period of limitation under Section 28(4) of the Act of 1955, the same is held to be within limitation. [Kuldeep Yadav v. Anita Yadav, 2019 SCC OnLine Raj 4016, decided on 06-11-2019]

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