Delhi High Court: In a case wherein, the appellant-wife filed an appeal against the judgment dated 11-4-2019 passed by the Family Court whereby the divorce petition filed by the respondent-husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (‘HM Act’) was allowed, the Division Bench of Sanjeev Sachdeva* and Vikas Mahajan, JJ., disposed of the preliminary objection regarding the delay in filing an appeal and held that the limitation period for filing an appeal against the judgment or the order of the Family Court was thirty days, however, delay could be condoned under Section 5 of the Limitation Act, 1963, if sufficient cause was showed.
On 19-5-2002, the marriage between the husband and the wife was solemnized as per Hindu rites and ceremonies and subsequently, two daughters were born out of the wedlock. However, around March 2015, certain dispute arose between the parties and the husband took an independent accommodation on 10-7-2015. Thereafter, the husband filed a divorce petition on the ground of cruelty under Section 13(1)(ia) of the HM Act.
Later, the Family Court passed a divorce decree on 11-4-2019.
Subsequently, the wife filed the present appeal before the Court against the impugned judgment dated 11-4-2019.
The husband raised a preliminary objection stating that as per Section 19(3) of the Family Courts Act, 1984 (‘FC Act’), the appeal should had been filed within the period of ninety days, thus, the present appeal was barred by the limitation. Whereas, the wife contended that the present appeal was filed under Section 28 of the HM Act, wherein the limitation period was ninety days.
Thus, in the instant case, the question before the Court was to determine the limitation period for filing an appeal against the decree or the order passed by the Family Court under the HM Act.
Analysis, Law, and Decision
The Court analysed the respective statutory provisions and opined that there was a clear inconsistency between the Section 28 of the HM Act which prescribed ninety days for filing an appeal and Section 19 of the FC Act, wherein period of limitation was thirty days.
The Court further noted that there would be no inconsistency in areas where the Family Courts had not been established by the State Governments, and the limitation period of ninety days, as prescribed under the HM Act, would apply in such areas.
The Court referred to Savitri Pandey v. Prem Chandra Pandey, (2022) 2 SCC 73 and opined that pursuant to the judgment, there was an amendment in the HM Act and the Special Marriage Act, 1954 wherein period for filing an appeal was enlarged to ninety days. However, no such amendment was made to the FC Act, and thus, under Section 19 of the FC Act, the period of limitation continued to be ninety days.
The Court stated that Section 7 read with Section 20 of the FC Act overrode Section 19 of the HMA and thus, in areas where Family Court was set up by the State Government, the petition had to be filed before the Family Court and not the District Court. The Court further noted that the Family Court Judges held the same rank as the District Judges, but they were designated as the Family Court Judges.
The Court opined that Section 28 of the HM Act and Section 19 of the FC Act operated in different spheres, as Section 28 of the HM Act applied to the orders passed by the District Court, whereas Section 19 of the FC Act, applied to orders passed by the Family Courts.
The Court relied on Arunoday Singh vs. Lee Anne Elton 2021 SCC OnLine SC 3285, wherein it was held that an appeal filed under Section 19 of the FC Act had to be filed within thirty days. Thus, the Court disposed of the preliminary objection regarding the delay in filing an appeal and held that the limitation period for filing an appeal against the judgment or the order of the Family Court was thirty days, however, delay could be condoned under Section 5 of the Limitation Act, 1963, if sufficient cause was showed.
The Court considering the divergent view in Sandeep Aggarwal v. Priyanka Aggarwal, 2021 SCC OnLine Del 5521 and later pronouncement in Arunoday Singh vs. Lee Anne Elton, 2021 SCC OnLine SC 3285, granted the wife an opportunity to file an appropriate application seeking condonation of delay, within 15 days.
The Court further listed the appeal before the Roster Bench for directions on 16-10-2023.
[Pallavi Mohan v. Raghu Menon, 2023 SCC OnLine Del 5621, decided on 12-9-2023]
*Judgment authored by- Justice Sanjeev Sachdeva
Advocates who appeared in this case:
For the Appellant: Vineet Jhanji and Imran Moulaey, Advocates;
For the Respondent: Suman Arora, Advocate.