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Synopsis

The Delhi High Court, recently held that an appeal against decree or order of the Family Court must be filed within 30 days from the date of the pronouncement of such decree or order. In the present case, the appeal was filed with a delay of 49 days, after the expiry of 30 days provided under Family Courts Act, 1984.

A Division Bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan, while granting liberty to the appellant for moving an application for condonation of delay, held, “The period of limitation for filing an appeal from an appealable order and decree of the District Court would be ninety days under section 28 of HMA and the period of limitation for filing an appeal from an appealable order and judgment of the Family Court, wherever it has been set up, would be thirty days under section 19 of the Family Courts Act.”

While acknowledging the inconsistency and the varied position by several High Courts, attention was further drawn to the Top Court observations in SLP (C) No.10751 of 2021, Arunoday Singh vs. Lee Anne Elton.

The appellant challenged order dated 11.04.2019 passed by the Principal Judge, Family Court, Saket wherein divorce petition by the respondent was allowed.

Counsel for the appellant submitted that (i) the appeal was filed as per Section 28 of the Act of 1955 that prescribes a limitation of 90 days (ii) the position on limitation stands altered from 30 days to 90 days after 2003 amendment; reliance in this regard was placed on the Top Court decision in Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, (iii) Non-obstante clause in Section 20 of the Family Courts Act, 1984 would not apply in the present case as the amendment to HMA, 1955 was made after the Family Courts Act was enacted.

Counsel for the respondent submitted that (i) since the language of Section 20, Family Courts Act, 1984 starts with a non-obstante clause, provisions contained under the Act of 1955 would not apply (ii) expression “any other law for the time being in force” is not to be read in context of the time when the respective Acts were enforced but in the context of the time when the inconsistent provisions are to be made applicable.

Primary issue before the court was to determine the period of limitation for filing an appeal against an order or decree passed by Family Court, under the Hindu Marriage Act, 1955.

Marriage was solemnized between the parties on 19.05.2002.

Dispute arose sometime in March 2015, when the husband took an independent accommodation in Gurgaon and filed a petition in the Family Court Saket, seeking divorce on ground of cruelty under section 13(1)(ia) of the 1955 Act. The same was allowed vide judgment dated 11.04.2019.

“Section 28 of the HMA and Section 19 of the Family Courts Act operate in different spheres and apply to orders passed by different forums i.e. District Court and the Family Court respectively”, Court also said.

Case Title: Pallavi Mohan v. Raghu Menon | MAT. APP (FC) 199 of 2019