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.
--------------------------------------------------------------------------------------------------------------------------------------
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
full bench matter - fca-161-13
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.)
