KUITIMALU Vs. SUBRAMONIAN

JUDGEMENT

(1.) This petition is by the appellant in the appeal which has been filed from the decree of the District Judge, Manjeri allowing the respondent's application for dissolving the marriage between them under the Hindu Marriage Act. The petition purports to be under S.5, Limitation Act and seeks to condone the delay of 60 days in filing the appeal on the ground that she was under the bona fide impression, caused by the advice of her lawyer at Manjeri, that limitation for the appeal was 90 days and that it was when she met her lawyer at Ernakulam that she was advised that the time for appeal was only 30 days. In addition to her own affidavit the petitioner has produced an affidavit sworn by her lawyer at Manjeri that he had advised her that there were 90 days for filing the appeal and that he realised the mistake only later when it was pointed out by the Advocate at Ernakulam and he referred to the relevant provision in the Hindu Marriage Act. In the light of this latter affidavit which was occasioned by the respondent's attempt to undervalue the petitioner's unsupported affidavit, I am satisfied that there was sufficient cause -- if S.5 of the Limitation Act applied -- to condone the delay.

(2.) That leads to the respondent's further objection that S.5 of the Limitation Act 1963 - the 1963 Act for short -- does not apply at all to appeals under the Hindu Marriage Act and that the petition has to be dismissed on that short ground. This objection, which was his principal objection requires to be considered in detail. S.29(2) and (3) of the 1963 Act read:

(3.) On its express term and as explained in Mangu Ram supra, S.4 to 24 of which S.5 is relevant to this case, apply even to a special law if they are not excluded by such law. Such exclusion might be direct and express or as pointed out in Hukumdev v. Lalit Narain, AIR 1974 SC 480 , 490. "In our view, even in a case where the special law does not exclude the provisions of S.4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation." There is no exclusion of S.5 of the 1963 Act either expressly or by implication in the Hindu Marriage Act. The prescription of a period of limitation in mandatory terms in S.28(4) of the Hindu Marriage Act cannot by itself operate to exclude the provisions of the Limitation Act for "Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of S.5." Mangu Ram's case supra at page 108 Sub-s.(4) of S.28 of the Hindu Marriage Act does not therefore exclude S.5 of the 1963 Act.