SIPRA DEY Vs. AJIT KUMAR DEY

JUDGEMENT

(1.) This matrimonial appeal by the wife-appellant was preferred beyond the period of limitation but the delay has been condoned under S.5 of the Limitation Act on an application filed subsequent to the presentation of the appeal. Mr. D. Roze, the learned counsel appearing for the husband-respondent has now urged, and has urged very seriously, that the order condoning the delay under S.5 of the Limitation Act was patently erroneous for two reasons. Mr. D. Roze has contended that, firstly, S.5 of the Limitation Act cannot have any manner of application to a matrimonial proceeding under the Hindu Marriage Act including an Appeal, and, secondly, even if the Section applies, the application thereunder ought to have accompanied the memorandum of appeal as now required by R.3A of the Code of Civil Procedure, inserted by the Amendment Act of 1976, and such an application having filed later, the delay could not be condoned.

(2.) An appeal against a decree under the Hindu Marriage Act is provided in S.28(1)of the said Act and the period of limitation therefor is prescribed in S.28(4). It is neither an appeal under the general law, i.e., the Code of Civil Procedure, nor the period of limitation therefor is prescribed under the general law, i.e., the Limitation Act, for if it were so, these provisions in S.28 would not have been necessary. The Division Bench decisions of this court in Sobhana v. Amar, AIR 1959 Cal 455 and in Pratima v. Kamal, (1964) 68 Cal WN 316 are clear authorities for the view that an appeal against a decree under the Hindu Marriage Act is an appeal under S.28 of that Act and not an appeal under the general law. The Division Bench decision of the Bombay High Court in Madhukar v. Malti AIR 1973 Bom 141 is also to that effect. All these decisions were rendered under S.28 of the Hindu Marriage Act as it stood before 1976, but the present S.28, as amended by the Amendment Act of 1976, makes the position clearer and S.21B of the Act, also inserted by the said Amendment Act, puts the matter beyond all controversy by describing, in Sub-Sec. (3), an appeal against a decree or order passed under the Hindu Marriage Act as an "appeal under this Act", i.e. the Hindu Marriage Act.

(3.) Section 29(2) of the Limitation Act makes the provisions of Ss.3 to 25 thereof applicable to all suits, appeals and applications under any 'special law' and there should be no doubt that the Hindu Marriage Act. or for the matter of that, its S.28(4), is a 'special law' within the meaning of S.29(2) of the Limitation Act. Even if S.41 of the Penal Code, defining 'special law' as "a law applicable to a particular subject" is not directly available for the construction of the same expression in S.29(2), Limitation Act, the expression, as pointed out by the Supreme Court in Kaushalya Rani v. Gopal Singh, AIR 1964 SC 260 at p. 263, would very much mean a law enacted for special or particular subject in contradistinction to general rules of the law laid down as applicable generally to all cases with which the general law deals. Under S.29(2) of the Limitation Act, therefore, the provisions of Ss.3 to 25, including obviously S.5, would have been applicable to an appeal under S.28 of the Hindu Marriage Act.