CISHWANATHAN Vs. SINDHU

JUDGEMENT

(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.