Pankaj Mithal and Shashi Kant, JJ.—This appeal has been preferred by the appellant/wife against the judgment and order of Family Court dated 04.10.2016 decreeing the suit of respondent/husband for divorce under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955"). The appeal is reported to be beyond time by 32 days.
2. The aforesaid report has been submitted by taking the limitation for filing the appeal as 30 days in view of Section 19(3) of the Family Courts Act, 1984 (hereinafter referred to as "Act, 1984").
3. On the delay condonation application, notice was issued to the respondent/husband by registered post A.D. Service of notice upon him is deemed to be sufficient in view of the office report dated 07.02.2017 but no one has put in appearance on his behalf. Therefore, we are considering the application for condoning the delay on its merit.
4. The decree of divorce passed under Section 13 of the Act, 1955 is appellable under Section 28 of the said Act and the limitation for such an appeal is 90 days as provided under sub-section (4) thereof.
5. Subsequently, with the enforcement of Act, 1984 orders of the Family Court came to be challenged by way of appeal as provided under Section 19 of the said Act for which the limitation is 30 days under sub-section (3) of 19 of the said Act.
6. Thus, there is conflict if the limitation for appeal is 90 days or 30 days.
7. The decree of divorce or any other decree passed under the Act, 1955 by the Family Court is appellable under Section 28 of the Act, 1955 read with Section 19 of Act, 1984.
8. The provisions regarding filing of appeal contained in Section 19 of the Act, 1984 are procedural in nature.
9. It is well established in law that procedural law is always subservient to the substantive law. The provisions of the Act, 1955 are substantive in nature whereas those under the Act, 1984 providing for appeal are procedural. Therefore, the period of limitation, as provided under the substantive law for filing the appeal, would prevail over the limitation prescribed in the procedural law.
10. A Full Bench of Bombay High Court in Family Court Appeal No.161 of 2013 (Shivram Dodanna Shetty v. Sharmila Shivram Shetty .) decided on 01.12.2016, while dealing with the controversy of limitation with regard to filing of appeal in such matters held that in appeals filed under Section 19(1) of Act, 1984, period of limitation prescribed under sub-section (4) of Section 28 of Act, 1955 shall apply. In other words it has been provided that limitation provided under Section 28(4) of Act, 1955 shall apply to filing appeals under Section 19(1) of Act, 1984.
11. In view of the above Full bench decision, limitation for filing appeal against the decree of divorce or any other decree passed under the Act, 1955 is 90 days, as provided under Section 28(4) of Act, 1955 and not 30 days as per Section 19(3) of the Act, 1984.
12. Accordingly, we hold that the appeal is within the period of limitation of 90 days and is in time. Therefore, there is no need for application of condoning the delay in its filing or for condoning the delay.
13. Delay Condonation Application No. 376412 of 2016 stands disposed of.
14. Since the appeal is now in time and there is no other defect reported in its presentation, we admit the appeal.
Office to allot regular number to the appeal.
15. Notice be issued to the respondent on the memo of appeal again afresh by registered/speed post.
16. Let a copy of this order be provided to the Stamp Reporter to submit reports with regard to limitation for filing appeals against the decree of divorce passed by the Family Courts accordingly.