Time limit for filing appeal in a divorce case
Querist :
Anonymous
(Querist) 27 May 2021
This query is : Resolved
What is the time limit within which a divorce decree holder has to file an appeal in the high court?
It is thirty days or ninety days?
The Section 19 of the Family Court Act says it is 30 days whereas the Section 28 of the Hindu Marriage Act says it is 90 days. Which will prevail?
Or can the party elect one among the two Section and file his appeal as per his choice?
T. Kalaiselvan, Advocate
(Expert) 27 May 2021
Period of limitation for preferring an appeal against a decision of Family Court is 90 days; S. 28 of HMA, 1955, to override the Family Courts Act
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.
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].
Querist :
Anonymous
(Querist) 27 May 2021
Thank you very much for your worth considering, learned reply, Adv Kalaiselvan.
In the Savitry Pandey case you referred to what the Supreme Court states in the last paragraph of the judgement is:
“We are of the opinion that 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. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf”.
So the apex court is only suggesting the government to harmonise the law to make 90 days as appeal time and has not come out with any interpretation. The direction has not been considered by the government and therefore we cannot say that the conflict has been resolved.
The conflict would have been resolved if the apex court had interpreted it as some other high courts have done. But even the high courts have done such interpretation mainly during the stage of admission / condonation of delay.
In this context, can we definitely say that the section 28 has an upper hand when the Section 19 has a “notwithstanding” clause as well?
T. Kalaiselvan, Advocate
(Expert) 28 May 2021
You are right that the supreme court has suggested the government through that judgment, however you may prefer an appeal invoking the provisions of section 28 which will be accepted by the appellate court.
Querist :
Anonymous
(Querist) 28 May 2021
Thank you very much.
It is true that when two contrary choices are available the party to the case has every right to opt the one that is advantageous to him. And the court would naturally oblige.
T. Kalaiselvan, Advocate
(Expert) 28 May 2021
You are absolutely right in your understanding.
You may go ahead with the best option before you.
Dr J C Vashista
(Expert) 29 May 2021
Very well analysed and advised by expert Mr. T. Kalaiselvan, I fully agree and appreciate.
As rightly observed and pointed out by author Supreme Court has suggested to raise limitation from 30 to 90 days for filing an appeal before High Court under section 19 of the Family Courts Act, 1984 in consonance with Section 28(4) of Hindu Marriage Act, 1955, which is yet to be legislated.
Accordingly appeal under Section 19 of the Family Courts Act, 1984 is 30 days, which is yet to be amended by an enactment of parliament.
P. Venu
(Expert) 29 May 2021
In my understanding, appropriate legislation suggested by the Supreme Court has been in the context of declaring the (second) marriage during the period of limitation (of 90 days) to be void,
ashok kumar singh
(Expert) 30 May 2021
agreed with views of earlier experts, therefore no further comments, so far.
thanks
