I. A. No.2492 of 2009 In Unnumbered Mat.A. of 2009. Case: Viswanathan Vs Sindhu. High Court of Kerala (India)
| Case Number | I. A. No.2492 of 2009 In Unnumbered Mat.A. of 2009 |
| Counsel | Subal J.Paul, C. S. Dias |
| Judges | R. Basant & M. C. Hari Rani, JJ. |
| Issue | Hindu Marriage Act, 1955 - Sections 28(4), 28; Family Courts Act, 1984 - Sections 19(3), 19; Code of Criminal Procedure, 1973 (as amended by Act No.25 of 2005 & Act No.2 of 2006); Code of Civil Procedure, 1908; Family Courts (Amendment) Act, 1991; Special Marriage Act, 1954; Marriage Laws Amendment Act, 2003; Limitation Act, 1963; Constitution... |
| Citation | 2009 (4) KLT 312 |
| Judgement Date | September 15, 2009 |
| Court | High Court of Kerala (India) |
Judgment:
R. Basant, J.
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What is the period of limitation for preferring an Appeal under S.28 of the Hindu Marriage Act, 1955? Is it 90 days as stipulated in S.28(4) vide amendment by Act 50 of 2003 which had come into force with effect from 23.12.2003 or is it 30 days stipulated under S. 19(3) of the Family Courts Act, 1984? This is the only question to be considered now.
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A brief reference to the vital facts in the background of which this question arises appears to be necessary and relevant. The appellant/petitioner had filed an application under S.9 of the Hindu Marriage Act, 1955 claiming restitution of conjugal rights before the Family Court, Ettumanoor. His wife, the respondent herein, was the respondent in that O.P. By the impugned order passed on 21.05.09, that petition was closed (dismissed). The petitioner claims to be aggrieved by that order. The petitioner has preferred this appeal under S. 19 of the Family Courts Act, 1984 read with S.28 of the Hindu Marriage Act, 1955. On facts, there is no controversy. If the period of limitation is 90 days as stipulated under S.28(4), the appeal is perfectly within time. On the contrary if the period of limitation is 30 days as stipulated under S. 19(3) of the Family Courts Act, 1984, the application is barred by limitation. The Registry raised an objection that the appeal cannot be received without an application for condonation of delay. The appellant prayed that it may be called on the Bench for a decision. It is accordingly that the matter has come up before us now.
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We have heard the arguments of the learned counsel for the appellant. We also sought the services of Advocate C.S.Dias to assist us as Amicus Curiae. Both counsel have advanced their arguments.
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It will be apposite at the outset to extract S. 19 of the Family Courts Act, 1984 and S.28 of the Hindu Marriage Act, 1955. S. 19 of the Family Courts Act, 1984 reads as follows:
"19. Appeal.- (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973, (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991.
(3) Every appeal under the section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality of propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgement, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges." (emphasis supplied)
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S.28 of the Hindu Marriage Act, 1955 reads as follows:
"28. Appeals from decrees and orders.- (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(2)...
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