Hindu Couple can remarry 90 days after divorce

The decision of the HC comes as a relief to estranged Hindu couples who want challenge the orders, decrees or verdicts of the Family Courts.

The ruling came from a full bench presided over by Justice Naresh Patil, Justice Ramesh Dhanuka and Justice Sadhana Jadhav. In 2014, another division bench headed by Justice Abhay Oka had referred the matter to a full bench, wherein the full bench was requested to deal with the legal controversy of appeal period for Hindu couples.

The basic controversy was that whether the provisions of Family Courts Act which provides for a 30 days deadline will be applicable for divorcing Hindu couples or the provisions mentioned in the Hindu Marriage Act, which provides for a total of 90 days deadline to file appeals.

The significance of the limitation provided by law is that once the appeal deadline ends, the divorced couple is free to remarry without the fear of challenge to the family court decree.

In its 30-page order, the full bench said, “While interpreting the provisions of the said two enactments (Family Courts Act and Hindu Marriage Act), it needs to be considered that we are a country of vast population, millions of people face financial hardship for litigating a matter, people have to spend considerable amount of time, money and energy. The geographical conditions further make easy access to justice difficult.”

“We are of the view that considering the scheme of both the enactments it would not be appropriate to apply different period of limitation, one in case of orders passed by the Family Courts and in another by the regular Civil Courts. Such an approach would frustrate very purpose of legislation,” the bench added.

Accordingly, the bench held that if an appeal is filed by any Hindu individual under the provisions of the Family Courts Act, the period of limitation prescribed under the Hindu Marriage Act (90 days) would apply.

The decision of the HC comes as a relief to estranged Hindu couples who want challenge the orders, decrees or verdicts of the Family Courts.

The controversy was that whether the provisions of Family Courts Act which provides for a 30 days deadline will be applicable for divorcing Hindu couples or the provisions mentioned in the Hindu Marriage Act, which provides for a total of 90 days deadline to file appeals.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 161 OF 2013

Shri Shivram Dodanna Shetty

Aged 54 years, Occupation : Service,

Residing at Building No. 40, Sumrite

Co-Op. Society, Room No. 2, Sector-7,

New Panvel, Dist. Raigad. .. Appellant

Versus

Sou. Sharmila Shivram Shetty

Aged 31 years, Occupation : Service,

Residing at 2, Ekveera Dharshan

Building, Kisan Nagar No.1,

Thane – 400 604. .. Respondent

Ms. Zenobia S. Irani/Nair a/w Mr. Prashant Tikare a/w Fatima

Rampurwalla for appellant.

Mr. Nitin P. Dalvi for respondent.

Mr. Aspi Chinoy, Senior Counsel, Amicus Curiae.

Mr. Murtaza Najmi, Advocate appeared suo motu.

 CORAM: NARESH H. PATIL,

 R. D. DHANUKA &

 SMT. SADHANA S. JADHAV, JJ.

 RESERVED ON : AUGUST 26, 2016.

 PRONOUNCED ON : DECEMBER 01, 2016

JUDGMENT [ Per Naresh H. Patil, J.] :

1. A question framed by the Division Bench of this court was

referred to a Larger Bench by the then Hon'ble the Acting Chief Justice of

this Court. The question was framed by the Division Bench (Coram:A. S.

Oka & A. S. Gadkari, JJ.) by an order dated 10/12/2014. The said question

reads as under :-

“Whether an appeal under sub-section (1) of section 19 of the

Family Courts Act, 1984 will be governed by the period of

limitation under sub-section (3) of section 19 or whether the

period of limitation provided under sub-section (4) of section

28 of the Hindu Marriage Act, 1955 will apply to such

Appeal?

2. The Hindu Marriage Act, 1955 (for short “the Act of 1955)

was enacted by Parliament for amending and codifying the law relating to

marriage amongst Hindus. The Act of 1955 became law on 18/5/1955.

The Act of 1955 was amended by Amendment Act 68 of 1976, Amendment

Act 2 of 1978 and Amendment Act 50 of 2003. The proceedings under

the Act of 1955 were to be instituted in District Court. Section 3(b) defines

“District Court” as under:-

“(3) Definitions.- In this Act, unless the context otherwise

requires, -

(a)

(b) “district Court” means, in any area for which there is a

City Civil Court, that Court, and in any other area the principal

Civil Court of original jurisdiction, and includes any other

Civil Court which may be specified by the State Government,

by notification in the Official Gazette, as having jurisdiction in

respect of the matters dealt with in this Act;”

The provision for filing of appeals from decrees and orders is prescribed

under Section 28 of the Act of 1955, which reads as under :-

“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 the

exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this

Act under section 25 or section 26 shall, subject to the

provisions of sub-section (3), be appealable if they are not

interim orders, 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.

(3) There shall be no appeal under this section on the

subject of costs only.

(4) Every appeal under this section shall be preferred within

a period of ninety days from the date of the decree or order.”

In Section 28(4), the Act prescribed a period of limitation of

thirty days, which came to be substituted to ninety days by way of Act 50

of 2003.

3. The Family Courts Act, 1984 (for short “the Act of 1984) was

enacted to provide establishment of Family Courts with a view to promote

conciliation in, and secure speedy settlement of, disputes relating to

marriage and family affairs and for matters connected therewith. The Act

of 1984 was enacted on 14/9/1984. The said Act provides that the State

Government shall, after consultation with the High Court, establish the

Family Court. Section 3 of the Act of 1984 reads as under :-

“3. Establishment of Family Courts.- (1) For the purpose

of exercising the jurisdiction and powers conferred on a

Family Court by this Act, the State Government, after

consultation with the High Court, and by notification, -

(a) shall, as soon as may be after the commencement

of this Act, establish for every area in the State

comprising a city or town whose population exceeds

one million, a Family Court;

(b) may establish Family Courts for such other areas

in the State as it may deem necessary.

(2) The State Government shall, after consultation with the

High Court, specify, by notification, the local limits of the area

to which the jurisdiction of a Family Court shall extend and

may, at any time, increase reduce or alter such limits.

Section 7 of the Act of 1984 prescribed as under:

“7. Jurisdiction. - (1) Subject to the other provisions of this

Act, a Family Court shall -

(a) have and exercise all the jurisdiction exercisable

by any district Court or any subordinate civil Court

under any law for the time being in force in respect of

suits and proceedings of the nature referred to in the

Explanation; and

(b) be deemed, for the purposes of exercising such

jurisdiction under such law, to be a district Court or, as

the case may be, such subordinate civil Court for the

area to which the jurisdiction of the Family Court

extends.

Explanation. - The suits and proceedings referred to in this

sub-section are suits and proceedings of the following nature,

namely:-

(a) a suit or proceeding between the parties to a

marriage for a decree of nullity of marriage (declaring

the marriage to be null and void or, as the case may be,

annulling the marriage) or restitution of conjugal rights

or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the

validity of a marriage or as to the matrimonial status of

any person;

(c) a suit or proceeding between the parties to a

marriage with respect to the property of the parties or of

either of them;

(d) a suit or proceeding for an order or injunction in

circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the

legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship

of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family

Court shall also have and exercise -

(a) the jurisdiction exercisable by a Magistrate of the

first class under Chapter IX (relating to order for

maintenance of wife, children and parents) of the Code

of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it

by any other enactment.

Section 8 of the Act of 1984 reads as under :-

“8. Exclusion of jurisdiction and pending proceedings. -

Where a Family Court has been established for any area, -

(a) no district Court or any subordinate civil Court

referred to in sub-section (1) of section 7 shall, in

relation to such area, have or exercise any jurisdiction in

respect of any suit or proceeding of the nature referred

to in the Explanation to that sub-section;

 (b) no Magistrate shall, in relation to such area, have

or exercise any jurisdiction or powers under Chapter IX

of the Code of Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature referred to

in the Explanation to sub-section (1) of section 7 and

every proceeding under Chapter IX of the Code of

Criminal Procedure, 1973 (2 of 1974), -

(i) which is pending immediately before the

establishment of such Family Court before any

district Court or subordinate Court referred to in

that sub-section or, as the case may be, before any

Magistrate under the said Code; and

(ii) which would have been required to be

instituted or taken before or by such Family Court

if, before the date on which such suit or

proceeding was instituted or taken, this Act had

come into force and such Family Court had been

established,

shall stand transferred to such Family Court on

the date on which it is established.

The provision of appeal is prescribed under Section 19, which

reads as under :-

“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 this 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 or propriety of 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 judgment, 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.”

4. Section 19(3) of the Act of 1984 prescribed a period of thirty

days for filing appeal from every judgment or order not being an

interlocutory order by Family Court to the High Court, both on facts and on

law.

Section 20 of the Act of 1984 reads as under :-

“20. Act to have overriding effect. - The provisions of this

Act shall have effect notwithstanding anything inconsistent

therewith contained in any other law for the time being in

force or in any instrument having effect by virtue of any law

other than this Act.”

5. The provisions of Section 28(4) of the Act of 1955 came to be

amended by substituting the period of limitation from thirty days to ninety

days consequent to the judgment of the Apex Court delivered in the case

of Savitri Pandey vs. Prem Chandra Pandey1

. The Family Courts were

established at some places in the State of Maharashtra. At places where the

Family Courts could not be established, proceedings are being initiated in

the regular civil courts.

6. An issue was framed by the Division Bench that whether an

appeal under sub-section (1) of Section 19 of the Act of 1984 will be

governed by the period of limitation under sub-section (3) of Section 19 of

the Act of 1984 or under sub-section (4) of Section 28 of the Act of 1955?

7. Mr. Aspi Chinoy, learned Senior Counsel, assisted the

court as an Amicus Curiae. We have heard the learned Senior Counsel at

length. It was submitted by the learned Senior Counsel that if the two

statutes are so construed and understood, there is no conflict between the

1.AIR 2002 SC 591

two laws, both of which are enacted by Parliament. In his submission, no

question arises of invoking non obstante provision under Section 20 of the

Act of 1984. The Act of 1984 and the non obstante provision is not

intended to and cannot have the result of impliedly repealing provisions

made in the substantive law i.e. the Hindu Marriage Act, 1955. The Act of

1984 provides for a special forum / court to decide such matrimonial

disputes and it also provides for special rules or procedure in such cases.

In this context, the non obstante provision prescribed in Section 20 of the

Act of 1984 is required to be construed, according to the learned Senior

Counsel.

On the principle of interpretation of statutes, learned Senior

Counsel submitted that both the statutes are to be construed and read

harmoniously. The Act of 1984 does not expressly repeal Section 28 of the

Act of 1955. When there is no express repeal, courts have not favoured

such repeal by implication. On the other hand, it is indicated by the courts

that if earlier and later statutes can reasonably be construed in such a way

that both can be effective, the same may be done. The legislature, while

enacting a law, is presumed to have complete knowledge of law on the

same subject matter and, therefore, when it does not provide a repealing

provision, it gives out an intention not to repeal the existing legislation.

Learned Senior Counsel further submitted that the Act of 1955

is a special law vis-a-vis the Act of 1984, which is a general law, which

provides a forum for the adjudication of matrimonial disputes arising under

all the diverse substantive laws. It was submitted that it is well settled

principle of interpretation of law that general law does not abrogate earlier

special law by mere implication. The Act of 1984 is essentially a

procedural law. It is a settled principle of interpretation of law that the

legislature while enacting a law in the year 2003 was presumed to be

aware of the provisions of the existing legislation, including Section 19(3)

of the Act of 1984. Therefore, it would be contrary to the purpose and

object of the scheme of law to read the amendment of Section 28(4) as

operating only where the proceedings are brought in the ordinary civil

court and as not applying / operating when proceedings under the Act of

1955 are brought in the Family Court. Learned Senior Counsel referred to

the following judgments :-

(a) Savitri Pandey vs. Prem Chandra Pandey [AIR 2002 SC

591].

 (b) R. S. Raghunath vs. State of Karnataka and anr. [(1992)

1 SCC 335].

(c) Viswanathan P. K. Vs. Sindhu M. K. [2009 SCC

OnLine Ker 4124].

(d) Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi [2015

(1) Mh. L. J. 954].

8. Learned counsel Mr. Murtaza Najmi, who appeared suo motu,

submitted that the Act of 1984 is a later law and it has a overriding effect in

respect of the provisions relating to the limitation prescribed for filing an

appeal. Learned counsel submitted that the appeals arising out of the

proceedings initiated in Family Court shall be governed by the provisions

of Section 19(3) of the Act of 1984 and the appeals arising out of the

ordinary civil court under the Act of 1955 shall be governed by the

provisions of Section 28(4) of the Act of 1984. The counsel submitted that

in a way, in respect of provisions of limitation, both the Acts have certain

inconsistencies, but considering the scheme of the provisions of the Act of

1984, Section 19(3) of the said Act will have be to given precedence over

the provisions of Section 28(4) of the Act of 1955. Learned counsel

submitted that the later general law can repeal prior special law.

9. Ms. Zenobia Irani, learned counsel appearing for the appellant

submitted that it is a matter of record that the Parliament did not amend the

provisions relating to limitation as prescribed under the Act of 1984. The

Act of 1984 is partly procedural and partly substantial. A discriminatory

type of provisions are prescribed relating to two different forums

considering the subject matter of appeals prescribed. Keeping in view the

purpose of enactment of both the statutes, the provisions of these statutes

will have to be construed. Learned counsel differs in respect of the

interpretation placed by the learned Senior Counsel Mr. Aspi Chinoy, as

stated above.

10. Mr. Nitin Dalvi, learned counsel appearing for respondent,

supported the submissions made by the learned Senior Counsel Mr. Aspi

Chinoy. Learned counsel submitted that both the provisions prescribed

under both the Acts must be considered and construed harmoniously and be

held that a period prescribed under the Act of 1955 under Section 28(4)

shall be applicable to the appeals preferred in the High Court arising out of

the judgments and orders passed by the Family Court or the Civil Court.

Learned counsel submitted that with a view to secure speedy settlement of

disputes relating to marriage and family affairs, separate Family Courts

were established pursuant to the Act 66 of 1984. The Act of 1984 is a

procedural law prescribing procedure to be adopted in the Family Courts.

Prior to the enactment of the Act of 1984, all the family matters were

adjudicated under Order XXXIIA of Civil Procedure Code, 1908 before the

concerned District Courts.

11. We have considered the submissions advanced before us,

perused the provisions of the relevant statutes and the judgments cited.

We have also gone through some of the Parliamentary debates in respect of

passing of both the enactments.

12. In the case of Seaford Court Estates, Ltd. vs. Asher2

 Lord

Denning stated as under :-

“........Whenever a statute comes up for consideration it must

be remembered that it is not within human powers to foresee

the manifold sets of facts which may arise, and, even if it

were, it is not possible to provide for them in terms free from

all ambiguity. The English language is not an instrument of

mathematical precision. Our literature would be much the

poorer if it were. This is where the draftsmen of Acts of

Parliament have often been unfairly criticised. A judge,

2 1949 (2) All England Report 155

believing himself to be fettered by the supposed rule that he

must look to the language and nothing else, laments that the

draftsmen have not provided for this or that, or have been

guilty of some or other ambiguity.........”

13. The provisions of Section 28 (4) of the Act of 1955 came to be

amended consequent to the suggestion given by the Apex Court in Savitri

Pandey's case (Supra). In its letter and spirit, the views of the Apex Court

in the case of Savitri Pandey are required to be considered. The Apex

Court observed that period of limitation prescribed for filing appeal under

Section 28(4) was apparently inadequate which facilitates frustration of

the marriages by unscrupulous litigant spouses. It is necessary to refer to

the observations of the Apex Court in para 18 of the said judgment here

itself:-

“18. At this stage we would like to observe that the period of

limitation prescribed for filing the appeal under Section 28(4)

is apparently inadequate which facilitates the frustration of the

marriages by the unscrupulous litigant spouses. 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

required for filing a regular appeal, if kept in mind, would

certainly show that the period of 30 days prescribed for filing

the appeal is insufficient and inadequate. In the absence of

appeal, the other party can solemnise the marriage and attempt

to frustrate the appeal right of the other side as appears to have

been done in the instant case. 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.”

(Emphasis supplied)

14. Consequent to the observations and suggestions given by the

Apex Court, quoted above, the Parliament amended the provisions of

Section 28(4) of the Act of 1955. Therefore, the purpose and object

behind amending the said Act in the year 2003 is required to be considered.

While amending the provisions, the Parliament was aware of the existence

of the Act of 1984. It is presumed that the Parliament was conscious of

the existence of another statute relating to the subject, prescribing forum

and procedure and period of limitation. Therefore, a harmonious

interpretation which would advance the object and purpose of the

legislation will have to be adopted.

15. As the Act of 1955 was amended by the Parliament in the year

2003, in that sense, 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

substantive provision of law was amended at a later stage and the same

shall prevail being later in point of time.

16. Even if both the Acts are considered on certain subjects and

situations to be special and general, even then, 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. Any contrary interpretation would frustrate the very object of the

enactment which was made on the suggestion of the Apex Court in the case

of Savitri Pandey.

17. Considering the provisions of the Act of 1984 and the Act of

1955, we do not find that there is an express repeal of the provisions of

Section 28(4).

18. The Apex Court, in para 11, in the case of R. S. Raghunath

vs. State of Karnataka and anr.3

, by referring to earlier judgment in the

case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC

447], observed as under:-

“..... In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram the

scope of non-obstante clause is explained in the following

words: (SCCp.477-78, para 67)

“ A clause beginning with the expression

`notwithstanding anything contained in this Act or in

some particular provision in the Act or in some

particular Act or in any law for the time being in force,

or in any contract' is more often than not appended to a

section in the beginning with a view to give the enacting

part of the section in case of conflict an overriding effect

over the provision of the Act or the contract mentioned

in the non-obstante clause. It is equivalent to saying that

in spite of the provision of the Act or any other Act

mentioned in the non-obstante clause or any contract or

document mentioned the enactment following it will

3 (1992) 1 SCC 335

have its full operation or that the provisions embraced in

the non-obtante clause would not be an impediment for

an operation of the enactment.”

On a conspectus of the above authorities it emerges that the

non-obstante clause is appended to a provision with a view to

give the enacting part of the provision an overriding effect in

case of conflict. But the non-obstante clause need not

necessarily and always be co-extensive with the operative part

so as to have the effect of cutting down the clear terms of an

enactment and if the words of the enactment are clear and are

capable of a clear interpretation on a plain and grammatical

construction of the words the non-obstante clause cannot cut

down the construction and restrict the scope of its operation.

In such cases the non-obstante clause has to be read as

clarifying the whole position and must be understood to have

been incorporated in the enactment by the legislature by way

of abundant caution and not by way of limiting the ambit and

scope of the Special Rules.”

In the above case, in para 7, the Apex Court referred to the

Maxwell on The Interpretation of Statutes (11th Edition, page 168). The

principle of law was stated as under :

“ A general later law does not abrogate an earlier special

one by mere implication. Generalia specialibus non derogant,

or, in other words, `where there are general words in a later

Act capable of reasonable and sensible application without

extending them to subjects specially dealt with by earlier

legislation, you are not to hold that earlier and special

legislation indirectly repealed, altered, or derogated from

merely by force of such general words, without any indication

of a particular intention to do so. In such cases it is presumed

to have only general cases in view, and not particular cases

which have been already otherwise provided for by the special

Act.”

19. Learned Senior Counsel, Mr. Aspi Chinoy, referred to the

observations made by the Division Bench of Kerala High Court in paras 17

and 20 of the judgment in the case of Viswanathan P. K. vs. Sindhu M.

K.4

, which read as under :

“17. In this case, there is no specific non-obstante clause

available in either statute. But both stipulations occupy the

same field. The dictum above can hence be relied on safely.

The learned counsel contend that the purpose and object of

Marriage Laws Amendment Act 2003 must be taken into

consideration and evidently the Marriage Laws Amendment

Act was enacted in the light of the observations in paragraph

19 of Savitri Pandey (supra) which we have already extracted

4 2009 SCC OnLine Ker 4124

above. The purpose of amending Section 28(4) obviously was

the inconvenience and hardship noted by the Supreme Court

in Savitri Pandey (AIR 2002 SC 591). The Supreme Court

observed that to prefer an appeal before the High Court

against an order passed by the District Court, a period of 30

days may not be sufficient and that such a stipulation is

working out injustice as was revealed in the facts of that case.

The purpose of the Marriage Laws Amendment Act, by which

Section 28(4) of the Hindu Marriage Act was amended, was

obviously to give a larger period of limitation for the parties

aggrieved by the orders passed in matrimonial cases under the

Hindu Marriage Act and the Special Marriage Act. In this

view of the matter, considering the purpose and object of the

Act it is evident that the period of limitation under Section

28(4) of the Hindu Marriage Act which amendment was

brought in with effect from 23-12-2003 must be given

prominence and predominance.

20. Fifthly, the learned counsel contends that the principle

of law is well settled that when a later enactment prescribes a

different period of limitation, such later enactment must be

preferred. Of course, the Hindu Marriage Act was enacted in

1955. The Family Courts Act was enacted in 1984. But the

crucial amendment to Section 28 (4) was enacted later in

2003. The parliament must be presumed to have known the

relevant stipulations of general nature in Section 19(3) while

bringing in the amendment to Section 28(4). In support of this

proposition, the learned counsel relies on the following

observations of the Supreme Court in paragraph 21 of Sarwan

Singh (AIR 1977 SC 265) (Supra):”

20. We may refer to the observations made by the Division Bench

of this Court in paras 20, 21, 24 and 25 of the judgment in the case of

Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi5

, which read as

under:-

“20. Thus, later enactment must prevail over the former. The

same test was approved by the Supreme Court in Shri Ram

Narain vs. Simla Banking and Industrial Co. Ltd., 1956 SCR

603 : AIR 1956 SC 614. On the principle that the later

enactment i.e. Marriage Laws Amendment Act, 2003 must

prevail over the earlier enactment i.e. Family Courts Act, the

larger period of limitation prescribed under section 28(4) of

the Hindu Marriage Act must prevail. On the principle of

equality under Article 14 of the Constitution of India also an

identical period of limitation must be held to be applicable

against all orders appealable under section 28 of the Hindu

Marriage Act. Merely because the order is passed by a

District Court, a larger period of limitation i.e. 90 days and

merely because the order is passed by the Family Court, a

lesser period of limitation of 30 days would be unreasonable

5 2015 (1) Mh.L.J. 954

and will not stand the test of equality. The interpretation must

be such that an identical period of limitation would be

available for orders appealable under section 28 of the Hindu

Marriage Act – whether such order is passed by the District

Court or the Family Court.

21. Thereafter the learned counsel for the applicant also

raised the contention that in view of section 20 of the Family

Courts Act in which there is non-obstante clause, the Family

Court Act would prevail over the Hindu Marriage Act.

The short question that remains to be considered is

whether the non-obstante clauses in section 19 and 20 can

override the applicability of the period of limitation

prescribed for an appeal under section 28. A non-obstante

clause cannot be read mechanically. The totality of the

circumstances have to be taken into account. The precise

intention of the legislature will have to ascertained. Vague and

general non-obstante clauses cannot operate to militate against

specific stipulations made in enactments to meet specific

situations. We have already discussed above why section 28

(4) of Hindu Marriage Act was amended, this circumstance has

to be given due weightage.

24. The first two decisions relied upon by Mr. Jaisinghani

are not applicable to the facts of the present case. The

remaining three decisions which are pressed into service by

Mr. Jaisinghani were rendered by Allahabad High Court,

Madras High Court and Karnataka High Court, whereas the

last two decisions in the case of Milan Tandel and Surekha

Sawant (supra) are by Division Benches of this Court. We

have already observed that the decisions by the Allahabad,

Madras and Karnataka High Courts can at the most only have

persuasive value.

25. We do not find any reason to take a different view from

the one taken by the Division Bench of our Court in Milan

Laxman Tandel's and Surekha Savant's cases. In view thereof,

we reject the preliminary objection and hold that there is no

delay in filing the appeal. In other words, we hold that the

appeal having been filed within 90 days, as contemplated by

section 28(4) of the Hindu Marriage Act, is within limitation.

Hence, there is no merit in this application and the same is

rejected.”

21. Considering the scheme of the enactments of the Act of 1955

and the Act of 1984, more precisely the provisions of limitation and non

obstante provision provided in the Act of 1984, we do not find a clear

inconsistency between the two enactments. It is principle of law that for

giving a overriding effect to a non obstante provision, there should be clear

inconsistency between the two enactments.

22. The principle of law of interpretation further lays down that in

a given case both the enactments could be special statutes dealing with

different situations and there could be non obstante provision in both the

special statutes. In such a situation, the conflict between two enactments

need to be resolved, considering the purpose and object of the Act.

23. It is settled rule of interpretation that if one construction leads

to a conflict, whereas on another construction, two Acts can be

harmoniously constructed, then the later must be adopted. On such

interpretation, the objects of both the enactments would be fulfilled and

there would be no conflict.

24. While interpreting the provisions of the said two enactments, it

needs to be considered that we are a country of vast population, millions of

people face financial hardship for litigating a matter, people have to spend

considerable amount of time, money and energy. The geographical

conditions further make easy access to justice difficult and taking into

consideration all these circumstances, coupled with the peculiar situation

faced by the parties while litigating matrimonial, family related issues, the

Apex Court made certain observations in the case of Savitri Pandey which

28

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suggestion was accepted by the Parliament and accordingly the law was

amended.

25. We are convinced of the interpretation put up by the learned

Senior Counsel that if the two statutes are construed and understood in its

proper sense, then there is no conflict between the two laws and, therefore,

no question arises of invoking non obstante provision in Section 20 of the

Act of 1984. The enactment of the Act of 1984 or non obstante provision

in Section 20 is not intended to impliedly repeal provisions made in the

Act of 1955. The Act of 1984 provides for a special forum relating to

matrimonial disputes and with that view, special procedure was devised for

expeditious adjudication of the cases. It is in that context the non obstante

provision of Section 20 is required to be construed.

26. 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. The non obstante clause would throw some light as to the

scope and ambit of the enacting part in case of its ambiguity. But if the

enacting part is clear, its scope cannot be cut down or enlarge by resorting

to non obstante clause.

27. In our view, considering the scheme of the Act of 1984 and the

object and purpose for its enactment, largely the Act is procedural in

nature. The Act of 1984 provides for special forum to decide matrimonial

related disputes and prescribes for special rules and procedure. In this

context, the non obstante provision in Section 20 is required to be

construed.

28. We are of the view that considering the scheme of both the

enactments and the purpose behind amending the provisions of Section 28

(4) of the Act of 1955, it would not be appropriate to apply different period

of limitation, one in case of orders passed by the Family Courts and in

another by the regular Civil Courts. Such an approach would frustrate

very purpose of legislation.

29. For the reasons stated above, we hold that for an appeal filed

under sub-section (1) of Section 19 of the Family Courts Act, 1984, period

of limitation prescribed under sub-section (4) of Section 28 of the Hindu

Marriage Act, 1955 shall apply.

30. Reference is answered accordingly.

31. We record our appreciation for valuable assistance rendered to

us by the Amicus Curiae, learned Senior Counsel Shri Aspi Chinoy.

We also appreciate the assistance rendered to us by learned counsel

Shri Murtaza Najmi.

32. We direct the Registry to place the matter before the

appropriate court.

(NARESH H. PATIL,J.)

(R. D. DHANUKA, J.)

(SMT. SADHANA S. JADHAV,J.)