PREETI MESHRAM Vs. HIMANSHU WASNIK

JUDGEMENT

(1.) In this appeal, arising out of judgment and decree dated 25.10.2018 passed by learned Family Court, Rajnandgaon, on a suit/application for grant of decree of divorce filed by the husband against his wife, upon office objection that the appeal is barred by 17 days, though an application for condonation of delay, if any, in filing appeal has been filed, learned counsel appearing for the appellant would argue that in the matter of appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as "HM Act"), the provision relating to limitation for filing of appeal, as provided under Section 28 (4), as amended, would govern period of limitation, which is 90 days. He would argue that notwithstanding provision contained in Section 19 (3) of the Family Courts Act, 1985 (hereinafter referred to as "FC Act") which is a later general law, the provision contained in earlier special law i.e. Hindu Marriage Act, 1955 would prevail. It is the contention of learned counsel for the appellant that the substantive right of appeal provided under Section 28 (4) of the HM Act is an essential component of special enactment. According to him, provision relating to limitation for filing of appeal against judgment or order of the Family Court, as provided under Section 19 (3) of the FC Act, would be applicable in those cases where there are no special laws providing for an appeal against an order passed by the Family Court. He would further argue that the FC Act is not an enactment dealing with any particular personal law but it is a neutral law dealing with establishment and functioning of Family Courts. He would submit that the Full Bench of Bombay High Court and Division Bench of Allahabad High Court have taken the view that in view of subsequent amendment carried out in the year 2003 in HM Act, pursuant to judicial direction of the Supreme Court, the provision relating to limitation of filing appeal against judgment and decree or an order of Family Court as provided in Section 28 (4) of the HM Act would be applicable and not the general provision with regard to appeal as provided under Section 19 (3) of the FC Act.

(2.) On the other hand, learned counsel for the respondent, would submit that even though, FC Act 1984 is a subsequent enactment, it is a self- contained code dealing with establishment of Family Courts providing special procedure, diluting rigors of technical laws of procedure, recording of evidence and collection of evidence and also containing special provision to encourage settlement of disputes by making it obligatory on the Court to first make efforts for settlement and it is only in the event that settlement fails that the Court would adjudicate upon the dispute. He would further submit that the FC Act is a progressive legislation and contains special provision with regard to appeal against the order passed by the Family Courts. It not only provides for period of limitation but also clearly lays down with overriding effect, the forum where the appeal would lie and also constitution of the Bench competent to hear such appeals. Giving overriding effect under Section 20 of the FC Act, it is contended, in so far as provision relating to appeal as contained in HM Act or any other special enactment dealing with personal laws are overridden by special provision relating to appeal and other incidental provisions, as laid down in Section 19 of the FC Act. He would also submit that amendment carried out in Section 28 (4) of the HM Act, by enhancing period of limitation would not, by itself, incorporate parallel amendment under Section 19 (3) of the FC Act and as long as provision contained in Section 19 (3) of the FC Act exists and is not amended, the provision of limitation as contained in Section 19 (3) of the FC Act would be applicable as provision relating to period of limitation prescribed in Section 28 (4) of the HM Act, being inconsistent, to that extent, would be ineffective redundant and overridden.

(3.) Relevant provision of the FC Act which provides period of limitation for filing appeal is extracted as below: