Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of  Mohammad Rafiq and  Narendra Singh Dhaddha, JJ.  while harmonizing the provisions contained under Section 19 of the Family Courts Act, 1984 and Section 28 of the Hindu Marriage Act, 1955, held that the period of limitation for preferring an appeal from a decision of the Family Court was 90 days.

A defect was pointed out in view of Section 19(3) of the Family Court Act, 1984, wherein the period of limitation for filing an appeal against the judgment of the Family Court was 30 days and the present appeal was thus barred by limitation having been filed with a delay of 57 days.

The appellant relied on the order passed by the present Court in Anita Chaudhary v. Rajesh Chaudhary, (D.B. Civil Misc. Appeal No. 2586/2017) wherein also the Registry, taking note of Section 19(3) of the Family Court Act, 1984, pointed out a delay in filing of appeal but considering provisions of Section 28(4) of the Hindu Marriage Act, 1955 which postulated a period of 90 days for filing of the appeal against any decree or order passed under the provisions of the Act of 1955, this Court directed that the appeal be considered as competent having been filed within the prescribed period of limitation.

The Supreme Court in Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73 had held that: “In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time period of 30 days prescribed for filing the appeal are insufficient and inadequate. In the absence of an appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side. A minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void.”

Even if both the Acts are considered on certain subjects and situations to be special and general, then also, as a matter of sound interpretation and keeping in view the purpose for providing a larger period of limitation, it must be construed that the appeals arising out of the judgment and orders passed by the Family Court shall be governed by a larger period of limitation prescribed under Section 28(4) of the Act of 1955. Since an appeal had been filed within 90 days which was the prescribed period of limitation under Section 28(4) of the Act of 1955, the same is held to be within limitation. [Kuldeep Yadav v. Anita Yadav, 2019 SCC OnLine Raj 4016, decided on 06-11-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Three-Judge Bench of Mian Saqib Nisar, CJ and SH. Azmat Saeed and Ijaz-Ul-Ahsan, JJ. dismissed the appeal filed by a husband challenging the amount awarded to his wife after the dissolution of their marriage.

Appellant (husband) and Respondent 3 (wife) filed a suit for dissolution of marriage vide which their marriage was dissolved. A suit for return of dowry articles was also filed which was decreed by the learned Family Court for an amount of Rs 25,000. The decretal amount was enhanced to Rs 4 lakhs by the First Appellate Court in an appeal filed by Respondent 3. Appellant filed a writ petition in Lahore High Court assailing the order of appellate authority. The petition was partly accepted and amount in lieu of dowry articles was reduced to Rs 3 lakhs. Being still aggrieved, the appellant preferred the instant appeal before this Court.

Learned counsel for the appellant Mr Sarfraz Khan Gondal submitted that the Family Court had granted a decree for a sum of Rs 25,000 with regards to claim for dowry. Hence, in view of Section 14(2) of the Family Courts Act, 1964, no appeal was maintainable against the said Judgment. Therefore, the Judgment and decree of the First Appellate Court were wholly without jurisdiction. Consequently, the impugned order of Lahore High Court partly affirming the same was also liable to be set aside.

Learned counsel for Respondent 3 Mr Mian Shah Abbas contended that the embargo placed on the right of appeal applied only to the husband and not to a wife dissatisfied with the quantum or denial of relief.

The Court noted that Family Courts are a special forum for adjudication of family disputes in accordance with the special procedure set forth in the 1964 Act, purpose whereof is expeditious settlement and disposal of disputes relating to marriage and family affairs.

It was opined that the purpose of curtailing the Right of Appeal under Section 14 of the Act was to avoid the benefits of the decree being tied up in an appeal before a higher forum. However, the said provision could not be interpreted so as to exclude a right of appeal to a wife whose claim of dower or dowry has been partially or entirely declined as it would defeat the purpose and object of the Act and frustrate its beneficial nature. In view thereof, the appeal was dismissed for being devoid of merit.[Saif-ur-Rehman v. Addl. District Judge, Toba Tek Singh, 2018 SCC OnLine Pak SC 19, decided on 17-04- 2018]

Case BriefsSupreme Court

Supreme Court: In the matter revolving around allowing video conferencing in matters relating to marital disputes, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ gave a 2:1 decision and held that the discretion as to allowing Video Conferencing has to rest with the Family Court and it is to be exercised after the court arrives at a definite conclusion that the settlement is not possible and both parties file a joint application or each party filing his/her consent memorandum seeking hearing by videoconferencing.

Majority Opinion:

CJI, writing the majority opinion for himself and Khanwilkar, J, said:

“The procedure of video conferencing which is to be adopted when one party gives consent is contrary to Section 11 of the 1984 Act. There is no provision that the matter can be dealt with by the Family Court Judge by taking recourse to videoconferencing.”

Stating that video conferencing may create a dent in the process of settlement, it was held that what one party can communicate with other, if they are left alone for some time, is not possible in videoconferencing and if possible, it is very doubtful whether the emotional bond can be established in a virtual meeting during videoconferencing. CJI, writing the majority opinion for himself and Khanwilkar, J, went on to say:

 “the statutory right of a woman cannot be nullified by taking route to technological advancement and destroying her right under a law, more so, when it relates to family matters.”

CJI and Khanwilkar, J, stating that the order will prospectively, gave the below mentioned directions:

  • In view of the scheme of the Family Courts Act, 1984 and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.
  • After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.
  • After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct.
  • In a transfer petition, video conferencing cannot be directed.

The decision in Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150, was, hence, overruled to the extent, where, in order to provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence which will eventually result in denial of justice, the Court recommended the availability of video conferencing facility.

Minority Opinion:

Writing down his minority opinion, Chandrachud, J, said that whether video conferencing should be allowed in a particular family dispute before the Family Court, the stage at which it should be allowed and the safeguards which should be followed should best be left to the High Courts while framing rules on the subject. Subject to such rules, the use of video conferencing must be left to the careful exercise of discretion of the Family Court in each case.

He added:

“The Family Courts Act, 1984 has been enacted at a point in time when modern technology which enables persons separated by spatial distances to communicate with each other face to face was not the order of the day or, in any case, was not as fully developed. That is no reason for any court – especially for this court which sets precedent for the nation – to exclude the application of technology to facilitate the judicial process.”

Disagreeing with the proposition that video conferencing can be permitted only after the conclusion of settlement proceedings, and thereafter only when both parties agree to it, he said that it does not accord either with the purpose or the provisions of the Family Courts Act 1984. He said that the exclusion of video conferencing in the settlement process is not mandated either expressly or by necessary implication by the legislation. On the contrary the legislation has enabling provisions which are sufficiently broad to allow video conferencing. Confining it to the stage after the settlement process and in a situation where both parties have agreed will seriously impede access to justice. It will render the Family Court helpless to deal with human situations which merit flexible solutions. [Santhini v. Vijaya Venketesh, 2017 SCC OnLine SC 1080, decided on 09.10.2017]

Case BriefsHigh Courts

Bombay High Court: While deciding upon the issue framed by the Division Bench of this Court that whether an appeal under Section 19(1) of the Family Courts Act, 1984 will be governed by the period of limitation under Section 19(3) of the 1984 Act or whether the period of limitation provided under Section 28(4) of the Hindu Marriage Act, 1955 will apply to such appeal; a three-Judge Bench of the Court comprising of Naresh H. Patil, R.D. Dhanuka and Sadhana S. Jadhav, JJ., considering the schemes and the legislative intent of the aforementioned enactments, held that for an appeal filed under Section 19(1) of the Family Courts Act, 1984, period of limitation prescribed under Section 28(4) of the Hindu Marriage Act, 1955 shall apply. The Court further stated that it would not be correct to apply different periods of limitation to orders passed by the Family Courts and by the regular Civil Courts as such an approach would frustrate the object of legislation.

Assisting the Court in the case, the Amicus Curiae Aspi Chinoy, put forth before the Court that if the  provisions concerned of the Family Courts Act and Hindu Marriage Act are construed and understood then there exists no conflict between them. It was further submitted that the Family Courts Act, 1984 provides for a special forum to decide matrimonial disputes and it also provides for special rules or procedure in such cases. The non obstante provision in this enactment, namely, Section 20, was not enacted with the intention of impliedly repealing the provisions of the substantive law i.e. the Hindu Marriage Act, 1955. Therefore in this context, the non obstante provision prescribed in Section 20 of the Act of 1984 needs to be construed.

Perusing the submissions of the Amicus Curiae, the Bench observed that harmonious interpretation of the two statutes which can advance the legislative intent must be adopted in the present case. As the Hindu Marriage Act was amended by Parliament in the year 2003, the period of limitation of ninety days was prescribed by a later law which would override the provisions relating to period of limitation prescribed in the earlier enactment i.e. Act of 1984. The Court further observed that the scheme of the enactments of the Act of 1955 and the Act of 1984, in prescribing the period of limitation and non obstante provision provided in the Act of 1984, there is no clear inconsistency between the two enactments. The Court reiterated the principle of interpretation of statutes which clearly states that for giving an overriding effect to a non obstante provision, there should be clear inconsistency between two enactments. Convinced by the submissions of Amicus Curiae, the Court stated that there is no conflict between the Hindu Marriage Act and the Family Courts Act and that a non obstante clause must be given effect to the extent Parliament intended and not beyond the same, it may be used as a legislative device to modify the scope of provision or law mentioned in the said clause. [Shivram Dodanna Shetty v. Sharmila Shivram Shetty, 2016 SCC OnLine Bom 9844, decided on 01.12.2016]

Case BriefsHigh Courts

Orissa High Court: While deciding upon the challenge to the maintainability of the present matrimonial appeal as per Section 19 of the Family Courts Act, 1984, the Division Bench of B.K. Nayak and K.R. Mohapatra, JJ., held that an ex parte divorce decree is not an interlocutory order, hence an appeal against the same is maintainable under Section 19(1) of the Family Courts Act.

As per the facts of the present case, the appellant filed for decree of divorce in the Family Court, Cuttack under Section 13 of the Hindu Marriage Act, 1955. However due to non-appearance of the respondent wife, an ex parte decree of divorce was passed. The counsel for the appellant N.K. Sahu contended before the court that Section 19(1) of the Family Courts Act starts with a non-obstante clause, thus Section 10 (general appeal) of the same Act is not applicable to the appeals made under Section 19, therefore making the present appeal maintainable. The counsel for the respondent, Prabhat Kumar Mohanty however argued that Section 10 of the 1984 Act provides that procedure laid down in the CPC is applicable to a proceeding under the 1984 Act, and Family Courts shall be deemed to be civil court and for that purpose. Thus provision under Order 43 Rule 1(d) CPC is squarely applicable to the proceedings in a Family Court. Since Order 43 does not provide for appeal against allowing an application under Order 9 Rule 13 CPC, no appeal in the eye of law shall lie under Section 19(1) of the Act.

Perusing the contentions, the Court referred to the provisions in question, namely, Sections 10, 19 and 20 of the Family Courts Act and observed that Section 10 confers a substantive right of appeal to the parties; Section 19 in turn overrides the provisions of appeal under Section 96 or Section 104 CPC; and Section 20 clarifies that the provisions of the Family Courts Act will have an overriding effect, which is inconsistent with the provisions of any other law for the time being in force. The Court further observed that interlocutory orders are in the nature of temporary or interim order which does not touch the important rights and liabilities of the parties. An interlocutory order is only made to secure some end and purpose necessary and essential to the progress of the suit. By no stretch of imagination can the impugned order be said to be an interlocutory order. [Gyanasis Jena v. Rekha Swain2016 SCC OnLine Ori 560, decided on September 8, 2016]