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Citation Codes
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Case Number
Advocates
  • For Petitioner : Vipin Chandra Dixit, Advocate, for the Appellant
Judges
  • Hon’ble Mr. Justice Shashi Kant
  • Hon’ble Mr. Justice Pankaj Mithal (Sr. Judge, Lko.)
Acts
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For Petitioner : Vipin Chandra Dixit, Advocate, for the Appellant
Judges
  • Hon’ble Mr. Justice Shashi Kant
  • Hon’ble Mr. Justice Pankaj Mithal (Sr. Judge, Lko.)
Acts
See more information ...
Smart Summary

Factual and Procedural Background

The husband filed a suit for divorce under Section 13 of the Hindu Marriage Act, 1955, which was decreed by the Family Court. The decree is now challenged by the husband through an appeal. The Office reported that the appeal was filed 16 days beyond the prescribed limitation period, assuming a 30-day limitation under Section 19 of the Family Courts Act, 1984. The question arose regarding the applicable limitation period for filing the appeal against the Family Court’s decree of divorce.

Legal Issues Presented

  1. What is the applicable limitation period for filing an appeal against a decree of divorce passed by the Family Court under the Hindu Marriage Act?
  2. Whether the procedural limitation period under Section 19(3) of the Family Courts Act (30 days) overrides the substantive limitation period under Section 28(4) of the Hindu Marriage Act (90 days)?
  3. Whether the appeal filed beyond 30 days but within 90 days should be treated as timely without requiring condonation of delay?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Shivram Dodanna Shetty v. Sharmila Shivram Shetty, Family Court Appeal No.161 of 2013, Bombay High Court Full Bench (01.12.2016) Established that the limitation for filing an appeal against a Family Court decree under the Hindu Marriage Act is 90 days, not 30 days under the Family Courts Act. The Court followed this Full Bench decision to hold that the substantive limitation under Section 28(4) of the Hindu Marriage Act prevails over the procedural limitation under Section 19(3) of the Family Courts Act.
Smt. Gunjan v. Praveen, First Appeal Defective No.374 of 2016, Division Bench (08.02.2017) Confirmed the Full Bench view that the limitation for filing an appeal against a Family Court divorce decree is 90 days. The Court adopted this precedent to reinforce that the appeal in the present case is within the substantive limitation period of 90 days.

Court's Reasoning and Analysis

The Court analyzed the interplay between the substantive and procedural law concerning limitation periods for appeals against Family Court decrees under the Hindu Marriage Act. Section 28(4) of the Hindu Marriage Act prescribes a 90-day limitation period for appeals, which is substantive in nature. Conversely, Section 19(3) of the Family Courts Act provides a 30-day limitation period but is procedural. The Court emphasized the settled legal principle that procedural law is subservient to substantive law. Therefore, the procedural limitation under the Family Courts Act must yield to the substantive limitation under the Hindu Marriage Act. The Court supported this conclusion by relying on authoritative precedents from the Bombay High Court's Full Bench and a Division Bench decision. Additionally, the Court noted the practical consideration of uniformity, as most High Court appeals have a 90-day limitation period. Applying these principles, the Court held that the appeal filed beyond 30 days but within 90 days is not delayed and does not require condonation.

Holding and Implications

The appeal against the decree of divorce passed by the Family Court is held to be within time, treating the limitation period as 90 days under Section 28(4) of the Hindu Marriage Act, overriding the 30-day limitation under Section 19(3) of the Family Courts Act.

The direct consequence is that the appeal filed 16 days beyond the 30-day period but within 90 days is admitted without requiring any application for condonation of delay. The Court ordered the Office to allot a regular number to the appeal and issued notice to the respondent. No new precedent was established beyond affirming the existing authoritative view on the applicable limitation period.

Show full summary ...

    Mamta v. Vikram Singh

    1. The suit for divorce filed by the husband under Section 13 of the Hindu Marriage Act, 1955 has been decreed by the Family Court.

    2. The aforesaid decree is under challenge in the appeal.

    3. The Office has reported that the appeal is beyond time by 16 days.

    4. The aforesaid report has been submitted by taking the limitation of filing the appeal to be 30 days as provided under Section 19 of the Family Courts Act, 1984.

    5. The decree of divorce passed under Section 13 of the Hindu Marriage Act used to be appealable under Section 28 of the said Act, which by Sub-section 4 provided for the limitation of 90 days for filing the appeal.

    6. The aforesaid provision of appeal is a substantive provision of law.

    7. Subsequently, with the enforcement of the Family Courts Act, the orders and decrees passed under the Hindu Marriage Act also came to be challenged before the Division Bench of the High Court by virtue of Section 19 of the Family Courts Act, whose Sub-section 3 provided for limitation of 30 days for filing an appeal.

    8. The above provision of the Family Courts Act is procedural one and is not substantive in nature.

    9. The appeal against the decree of divorce or any other decree or order passed by the Family Court under the provisions of the Hindu Marriage Act as such are appelable under Section 28 of the Hindu Marriage Act read with Section 19 of the Family Courts Act.

    10. Both the above provisions provide for a different period of limitation for filing appeal. However, as it is well settled & recognised in law that procedural law is subservient to the substantive law, the limitation provided under Section 19(3) of the Family Courts Act has to give way to the limitation for filing appeal provided under Section 28(4) of the Hindu Marriage Act.

    11. This also is the view of the Full Bench of the Bombay High Court in Family Court Appeal No.161 of 2013, Shivram Dodanna Shetty v. Sharmila Shivram Shetty ., decided on 01.12.2016.

    12. This Division Bench in First Appeal Defective No.374 of 2016, Smt. Gunjan v. Praveen, decided on 08.02.2017, following the Full Bench of the Bombay High Court, has also held that the limitation for filing an appeal against the decree of divorce passed by the Family Courts Act shall be 90 days and not 30 days.

    13. It may not be out of context to mention that ordinarily limitation for filing most of the appeals in the High Court is 90 days. Therefore, to adopt an uniform pattern, endeavour should also be made to stick to the same limitation of 90 days as far as possible in all matters.

    14. Accordingly, treating the limitation for filing the appeal against the decree of divorce passed by the Family Court to be 90 days, we are of the opinion that there is virtually no delay in filing of this appeal and as such, there is no need for any application seeking condonation of the delay or to condone the delay in filing the appeal. The appeal is held to be within time.

    15. Office to proceed so as to allot the regular number to the appeal, if there is no other defect in its presentation, which apparently do not exist.

    Admit.

    16. Issue notice to the respondent by registered/speed post.

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    Comments

    Mamta v. Vikram Singh
    (Feb 9, 2017)