DIPAK RASIKLAL PARIKH Vs. ALPA DIPAK PARIKH

JUDGEMENT

(1.) Present application has been preferred by the applicant herein - original opponent - original plaintiff under Order 41 Rule 27 of the Code of Civil Procedure to place on record subsequent development of second marriage of the applicant, which has taken place after the impugned judgement and order passed by the learned Family Court in passing the decree of divorce in favour of the applicant -husband and against the wife as well as raising preliminary objection with respect to maintainability of the appeal on the ground that as the appeal against the judgement and order passed by the learned Family Court was beyond the period of 30 days and as the provisions of Limitation Act would not be applicable and therefore, this Court would not have any power to condone the delay and therefore, as the appeal was not preferred within a period of 30 days, the judgement and order passed by the learned Family Court has attained finality and therefore, the appeal is not maintainable. Preliminary objection is raised with respect to maintainability of the appeal in view of the subsequent development of second marriage of the applicant post expiry period appeal.

(2.) It is the case on behalf of the applicant -husband that admittedly and as per Section 19 of the Family Courts Act, appeal against the order of the Family Court is required to be preferred within a period of 30 days and in the Family Courts Act, there is no specific provision with respect to applicability of Limitation Act and as the Family Courts Act is a Special Act and under the Special Act, appeal is required to be preferred within a period of 30 days only and therefore, as the period of limitation, more particularly Section 5 of the Limitation Act, would not be applicable and therefore, appeal beyond the period of 30 days would not be maintainable. It is further submitted that even in view of the subsequent development of post judgement and decree passed by the learned Family Court and post appeal period i.e. as the applicant -has remarried and second marriage of the applicant would be legal and valid and therefore, first appeal would not be maintainable.

(3.) Mr.Chirag Patel, learned Advocate appearing on behalf of the wife has submitted that as such when this Court decided Civil Application to condone the delay, no such objection with respect to applicability of Section 5 of the Limitation Act was raised by the learned Advocate appearing on behalf of the applicant. It is submitted that thereafter, after the delay is condoned, it is not open now for the applicant to raise such an objection. He has submitted that even otherwise, the aforesaid issue is now not res -integra in view of the decision of the Hon'ble Supreme Court in the case of Adhyaatmam Bhamini Versus Jagdish Ambalal Shah, reported in (2006) 13 SCC 686. It is submitted that in the aforesaid decision, the Hon'ble Supreme Court has specifically observed that as there is no exclusion of Section 5 of the Limitation Act under the Family Courts Act and since the appeal is to the High Court, Section 5 of the Limitation Act gets attracted on its own terms.