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
Kuldeep Yadav Vs Anita Yadav
Rajasthan HC, Jaipur Bench
D. B. Civil Miscellaneous Appeal No. 4589/2019
About/from the judgment:
The High Court recently clarified that the limitation period for filing appeals against orders of the family court is 90 days, although the Family Courts Act of 1984 still prescribes a 30-day limit.
Instructions to bear in mind this clarification were also issued to the Court Registry. As stated in the order passed last week,
"Registrar (Judicial) of this Court is required to issue necessary direction to the Office to henceforth 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 court was dealing with an appeal filed challenging a family court order, filed 57 days after the order. The maintainability of the plea was considered given that Section 19(3) had the Family Courts Act, 1984 (1984 Act), as it stands, prescribes a 30-day limitation period for filing appeals.
However, the plea was admitted, given that it fell within the 90-day limitation period introduced in 2003, by way of an amendment to the Hindu Marriage Act, 1955 (1955 Act). By this amendment, Parliament increased the limitation period for challenging family court verdicts to 90 days from 30 days, under Section 28(4) of the 1955 Act.
The development had followed the Supreme Court's observation in the case of Savitri Pandey v. Prem Chandra Pandey (2002). In that case, the Supreme Court had opined that a 30-day limitation period for filing appeals in matrimonial disputes under Section 28 of the 1955 Act was insufficient, inadequate and would frustrate the purpose of appeal. It, therefore, urged the Ministry and Law and Justice to make an appropriate amendment to the law.
Following the 2003 amendment, a full Bench of the Bombay High Court in Shivram Dodanna Shetty v. Sharmila Shivram Shetty also took note when the amendment was introduced, Parliament was aware of the existence of the 1984 Act. Therefore, it opined that the 90-day limitation period prescribed under the 2003 amendment to the 1955 Act would prevail over the 30-day limit imposed under the earlier provision of the 1984 Act. It was added that a contrary interpretation would frustrate the very object of the enactment.
This view was later affirmed by the Allahabad High Court in Smt Gunjan v. Praveen and by a Single Judge Bench of the Rajasthan High Court in Smt. Anita Chaudhary v. Rajesh Chaudhary. In view of this position, the Division Bench in this case also concluded,
"... 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."
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