R.Basant, J.:-

(1) What is the period of limitation for preferring an appeal under s. 28 of the hindu marriage act ? is it 90 days as stipulated in s. 28 (4) vide amendment by act 50 of 2003 which had come into force with effect from 23. 12. 2003 or is it 30 days as stipulated under s. 19 (3) of the family courts act ? this is the only question to be considered now.

(2) A brief reference to the vital facts in the background of which this question arises appears to be necessary and relevant. The appellant/petitioner had filed an application under s. 9 of the hindu marriage act claiming restitution of conjugal rights before the family court, ettumanoor. His wife, the respondent herein, was the respondent in that o. P. By the impugned order passed on 21. 05. 09, that petition was closed (dismissed). The petitioner claims to be aggrieved by that order. The petitioner has preferred this appeal under s. 19 of the family courts act read with s. 28 of the hindu marriage act. On facts, there is no controversy. If the period of limitation is 90 days as stipulated under s. 28 (4) , the appeal is perfectly within time. On the contrary if the period of limitation is 30 days as stipulated under s. 19 (3) of the family courts act, the application is barred by limitation. The registry raised an objection that the appeal cannot be received without an application for condonation of delay. The appellant prayed that it may be called on the bench for a decision. It is accordingly that the matter has come up before us now.

(3) We have heard the arguments of the learned counsel for the appellant. We also sought the services of advocate c. S. Dias to assist us as amicus curiae. Both counsel have advanced their arguments.

(4) It will be apposite at the outset to extract s. 19 of the family courts act and s. 28 of the hindu marriage act. S. 19 of the family courts act reads as follows:

"19. Appeal. - - (1) save as provided in sub - section (2) and notwithstanding anything contained in the code of civil procedure, 1908 (5 of 1908) or in the code of criminal procedure, 1973, (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a family court to the high court both on facts and on law. (2) no appeal shall lie from a decree or order passed by the family court with the consent of the parties or from an order passed under chapter ix of the code of criminal procedure, 1973 (2 of 1974) : provided that nothing in this sub - section shall apply to any appeal pending before a high court or any order passed under chapter ix of the code of criminal procedure, 1973 (2 of 1974) before the commencement of the family courts (amendment) act, 1991. (3) every appeal under the section shall be preferred within a period of thirty days from the date of the judgment or order of a family court. (4) the high court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the family court situate within its jurisdiction passed an order under chapter ix of the code of criminal procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding. (5) except as aforesaid, no appeal or revision shall lie to any court from any judgement, order or decree of a family court. (6) an appeal preferred under sub - section (1) shall be heard by a bench consisting of two or more judges."

(5) S. 28 of the hindu marriage act reads as follows:

"28. Appeals from decrees and orders. - - (1) all decrees made by the court in any proceeding under this act shall, subject to the provisions of sub - section (3) , be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction. (2) orders made by the court in any proceeding under this act under section 25 or section 26 shall, subject to the provisions of sub - section (3) , be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction. (3) there shall be no appeal under this section on the subject of costs only. (4) every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order. (emphasis supplied)

(6) It will be apposite straightaway to note that under s. 28 (4) of the hindu marriage act, the period of limitation prescribed was 30 days and that stipulation was amended by act 50/2003 with effect from 23. 12. 2003 to specify that the period of limitation shall be 90 days.

(7) The history of that amendment shows that, the said amendment was necessitated by the observations of the supreme court in savitri pandey v. Prem chandra pandey, (2002 (1) klt sn 57 (c. No. 68) sc = (2002) 2 scc 73). We may straight away extract para. 19 of the said judgment.

"19. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under s. 28 (4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. 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 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 and justice for such action as it may deem fit to take in this behalf."

(8) It is thereafter that the parliament brought in amendment under the marriage laws amendment act, 2003 which came into force with effect from 23. 12. 2003. The period of limitation for preferring appeals under the hindu marriage act and the special marriage act was raised from 30 days to 90 days by the act. S. 19 (3) of the family courts act was not amended by the said act.

(9) The impugned order is passed by the family court. Going by the letter of s. 19 (3) of the act, it can be contended that the period of limitation is 30 days. Under s. 19 of the family courts act, all orders (i. E. Non - interlocutory orders) passed are appealable and the period of limitation prescribed under s. 19 (3) applies to all appeals. In this view of the matter, 30 days is the period prescribed for filing an appeal against any appealable order passed by the family court,

(10) Appealable orders passed by the family court would certainly include an order passed under s. 9 of the hindu marriage act. Substantive piece of law clothing the court with the jurisdiction for passing an order for restitution of conjugal rights against a party to a hindu marriage is the hindu marriage act. The substantive provision providing for an appeal against such an order is s. 28 of the hindu marriage act. S. 28 (4) of the hindu marriage act prescribes the period of limitation of 90 days.

(11) Is the larger period of limitation under s. 28 (4) of the hindu marriage act to hold the field oris the shorter period of limitation prescribed under s. 19 (3) of the family courts act to guide and control the situation? this is the dispute.

(12) The learned counsel contended that on six grounds the period of limitation must be reckoned only as 90 days as stipulated under s. 28 (4) of the hindu marriage act and not 30 days as stipulated under s. 19 of the family courts act.

(13) First of all it is contended that the principle that the special excludes the general must operate. There is no dispute on that proposition of law. It is trite and well settled that the special must exclude the general. But the question is which stipulation is general in nature and which stipulation is special. It must be noted that the amendments have been brought about, as per the marriage laws amendment act 2003, that the period of limitation prescribed must be enhanced not only for appeals under s. 28 (4) but also under s. 39 of the special marriage act. The obvious purpose, it is evident, was to ensure that a larger period of limitation is available when appeal is against an appealable order in matrimonial causes. In that view of the matter also, it must be held that marriage laws amendment act deals with a special rule whereas s. 19 of the family courts act deals only with a general stipulation.

(14) Under s. 19 of the family courts act, appeal can be preferred against any decision of the family court not being an interlocutory order. Under s. 28 (4) of the hindu marriage act, the period of limitation is prescribed for orders passed under the hindu marriage act. In this view of the matter, we must certainly agree that the stipulation of s. 19 (3) are more general in nature inasmuch as they cover not only orders by the family court under the hindu marriage act but cover all appealable orders passed in proceedings before the family court. The stipulations of s. 19 (3) of the family courts act being general in nature and s. 28 (4) of the hindu marriage act as amended being special in nature (in that they refer to one class of cases which fall under s. 19 of the family courts act) we agree with the learned counsel that stipulations of s. 28 (4) must be reckoned as special and those of s. 19 (3) to be general.

(15) The learned counsel secondly contend that the stipulation of s. 28 of the hindu marriage act in which the relevant sub - s. (4) appears must be reckoned to be more appropriate and specific, inasmuch as the said provision confers substantive right of appeal. A substantive provision must get precedence over a procedural provision, it is contended. The hindu marriage act is the piece of substantive law which confers the power to pass the order in question and the right to prefer appeals. The family courts act does not deal with substantive rights of the parties but only deal with the manner in which the matters coming within s. 7 of the family courts act have to be dealt with and disposed of by the family courts. To this extent, it has to be held that the stipulations in the hindu marriage act deal with substantive right of the parties and the substantive right of appeal whereas the stipulations in the family courts act deal with procedural matters. On the principle that prominence and predominance must be given to the statutes dealing with substantive rights in preference to those dealing with procedural stipulations, the stipulation of the period of limitation in s. 28 (4) , we are satisfied, must be preferred.

(16) The learned counsel thirdly contend that it is necessary to consider the specific purpose, object and reasons of the statute. They rely on the observations of the supreme court in sarwan singh v. Kasturi lal (air 1977 sc 265) to contend that conflicts of this nature have to be resolved by reference to the object and purpose of the laws under consideration. They particularly rely on the following observations in para. 20

"when two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration."

(17) In this case, there is no specific non - obstante clause available in either statute. But both stipulations occupy the same field. The dictum above can hence be relied on safely. The learned counsel contend that the purpose and object of marriage laws amendment act 2003 must be taken into consideration and evidently the marriage laws amendment act was enacted in the light of the observations in paragraph 19 of savithri pandey (supra) which we have already extracted above. The purpose of amending s. 28 (4) obviously was the inconvenience and hardship noted by the supreme court in savitri pandey. The supreme court observed that to prefer an appeal before the high court against an order passed by the district court, a period of 30 days may not be sufficient and that such a stipulation is working out injustice as was revealed in the facts of that case. The purpose of the marriage laws amendment act, by which s. 28 (4) of the hindu marriage act was amended, was obviously to give a larger period of limitation for the parties aggrieved by the orders passed in matrimonial cases under the hindu marriage act and the special marriage act. In this view of the matter, considering the purpose and object of the act, it is evident that the period of limitation under s. 28 (4) of the hindu marriage act which amendment was brought in with effect from 23. 12. 2003 must be given prominence and predominance.

(18) Fourthly it is contended that when two interpretations are possible about the period of limitation, the one stipulating a larger period of limitation is to be preferred. The law of limitation, it has always been stated, is an amoral law. It imposes restrictions on the right of a person to approach a court of law to seek justice. The interest of the republic that litigations and disputes should not be pending endlessly and the requirement of the adversary being given a reasonable opportunity to defend an action before the matter is stale, (thereby impairing his ability to defend the action) are the only principles justify ing such a stipulation. So viewed, when two possible interpretations are available, the one stipulating a larger period of interpretation must be preferred, contend the counsel. In support of this proposition, the learned counsel relied on the observations in para. 39 of a decision of the division bench of the punjab high court in karnal distillery co. V. Ladli parshad (air 1960 punj. 655). We extract the same below:

" it has often been observed that the provisions of the limitation act, which take away the right to sue. Have to be strictly construed. If the language is clear, express, precise and unambiguous, it must be enforced, but where two interpretations are found to be equally possible, the court may reasonably impute to the legislature an intention to prescribe a larger period of limitation."

(19) It is a sound principle of law that stipulations regarding limitation which take away the right to sue/appeal must be strictly construed. Hence, when two interpretations are equally possible, the one prescribing a larger period of limitation can and ought to be preferred. We accept this proposition of law and hold that in this view of the matter also, the larger period of limitation stipulated under s. 28 (4) deserves to be accepted.

(20) Fifthly, the learned counsel contends that the principle of law is well settled that when a later enactment prescribes a different period of limitation, such later enactment must be preferred. Of course, the hindu marriage act was enacted in 1955. The family courts act was enacted in 1984. But the crucial amendment to s. 28 (4) was enacted later in 2003. The parliament must be presumed to have known the relevant stipulations of general nature in s. 19 (3) while bringing in the amendment to s. 28 (4). In support of this proposition, the learned counsel relies on the following observations of the supreme court in para. 21 of sarwan singh (supra) :

"21. For resolving such inter se conflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which combine to give a fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one."

(21) The later enactment must prevail over the former. The same test was approved by the supreme court in shri ram narain v. Simla banking and industrial co. Ltd. , (1956 s. C. R. 603). We agree with the learned counsel. On the principle that the later enactment - i. E. Marriage laws amendment act, 2003 must prevail over the earlier enactment - i. E. Family courts act, the larger period of limitation prescribed under s. 28 (4) of the hindu marriage act must prevail.

(22) The learned counsel sixthly submit that on the principle of equality under art. 14 of the constitution of india also an identical period of limitation must be held to be applicable against all orders appealable under s. 28 of the hindu marriage act. Merely because, the order is passed by a district court, a larger period of limitation - i. E. 90 days and merely because the order is passed by the family court, a lesser period of limitation of 30 days would be unreasonable and will not stand the test of equality, submit the learned counsel. We find force in that submission also. We agree that the interpretation must be such that an identical period of limitation would be available for orders appealable under s. 28 of the hindu marriage act - whether such order is passed by the district court or the family court.

(23) In the light of the above discussions, we hold that the period of limitation for an order/decree appealable under s. 28 of the hindu marriage act is 90 days as stipulated under the amended s. 28 (4) of the hindu marriage act and not 30 days under s. 19 (3) of the family courts act. It follows that this appeal is not barred by limitation and deserves to be entertained even without any application for condonation of delay. The registry shall number the appeal.

(24) Call this appeal for admission.

(25) We place on record our appreciation for the services rendered by the learned counsel particularly sri. C. S. Dias who appeared and assisted as amicus curiae.