Jose vs Mary Shiji

R. Basant, J.—What is the period of limitation for preferring an appeal against an order passed by the Family Court u/s 10 of the Divorce Act? Is it 90 days as stipulated in Article 116 of the Limitation Act or is it 30 days as stipulated u/s 19(3) of the Family Courts Act? These are the questions that arise for consideration in this appeal at this stage.

The appellant claimed divorce u/s 10 of the Divorce Act on the ground of adultery. That claim was rejected and O.P. No. 1013/2006 filed by the appellant was dismissed by the Family Court by the impugned judgment dated 5.5.2010. It appears that free copy of the order was not furnished to the appellant and the appellant, hence, applied for certified copy on 7.5.2010, obtained the same on 21.5.2010 and filed this appeal on 23.6.2010. If the period of limitation is 90 days as stipulated under Article 116 of the Limitation Act, the appeal is within time. If on the contrary, the appellant has only 30 days time as stipulated u/s 19(3) of the Family Courts Act this appeal is barred by limitation. No application for condonation of delay has been filed. It is in this context that the Registry has raised an objection and the matter has come up before us for hearing on the objections.

We heard the learned Counsel for the appellant. Notice has not been issued to the respondent. Considering the nature of the question raised, we felt that competent independent assistance was necessary. In these circumstances, we requested Advocate Dr. Sebastian Champappilly to assist the court as Amicus Curiae. Detailed arguments have been advanced. At the very outset we record our appreciation for the efforts taken by Dr. Sebastian Champappilly to assist us as Amicus Curiae. The learned Counsel for the appellant Sri. M.P. Liju has also advanced detailed arguments.

The appellant''s claim for divorce is founded on the substantive provisions available u/s 10 of the Divorce Act. Sections 45 and 55 of the Divorce Act assume relevance in this context. We extract them below:

Section 45. CPC to apply. - Subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure, 1908 (5 of 1908).

S.55. Enforcement of, and appeal from, orders and decrees- All decrees and orders made by the court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from, under the laws, rules and orders for the time being in force:

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No appeal as to costs - Provided that there shall be no appeal on the subject of costs only. The above provisions have to be read along with Section 96(1) of the CPC which also we extract below:

Section 96. Appeal from original decree: (1)Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

We must immediately refer to Section 12 of the Kerala Civil Courts Act, which again is extracted below:

Appeal from decrees and orders of District Court or Subordinate Judge''s Court-Save as provided in Section 13 regular and special appeals shall, when such appeals are allowed by law, lie from the decrees or orders of a District Court or a Subordinate Judge''s Court to the High Court.

All these provisions will have to be read along with Section 7 of the Family Court Act and Article 116 of the Limitation Act. Article 116 prescribes 90 days to be the period of limitation from the date of the decree or order when the appeal is to the High Court.

A conjoint reading of the above provisions leave no semblance of doubt in the mind of the court that under the Divorce Act, the period of limitation prescribed is 90 days from the date of the order. There is no dispute whatsoever that prior to the enactment of the Family Courts Act 90 days has been reckoned as the period of limitation.

We may straight away refer to Section 29(3) of the Limitation Act which we extract below:

Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.

In the Full Bench decision of this Court in Yasoda v. Narayanan 1985 KLT 540 (F.B) it has been clearly held that appeal against a decree for divorce is not "other proceedings" within the meaning of Section 29(3) of the Limitation Act. The Full Bench was, of course, dealing with a petition under the Hindu Marriage Act but the dictum laid down in para.29(3) must apply to all appeals against a decree for divorce/refusal to grant a decree for divorce. It is thus without dispute that under the Divorce Act, read along with the Code of Civil Procedure, the Kerala Civil Courts Act and Article 116 of the Limitation Act, the period of limitation for preferring an appeal against the impugned order is 90 days from the date of the order.

That takes us to the next question whether the prescription of the period of 30 days u/s 19(3) of the Family Courts Act overrides the stipulation under the substantive provisions referred to earlier. We extract Section 19 of the Family Courts Act below.

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 or 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 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.

(emphasis supplied)

We must immediately refer to Sections 10 and 20 of the Family Courts Act. We extract them below.

Procedure generally.- (1) Subject to the other provisions of this Act and the Rules. the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil -Court and shall have all the powers of such Court.

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.

(emphasis supplied)

The question to be considered and resolved is only whether the period for filing an appeal from an order passed by the Family Court under the provisions of the Divorce Act is 90 days as provided under the Divorce Act read with the provisions of the CPC and the Limitation Act or it would be only 30 days as provided u/s 19(3) of the Family Courts Act.

A similar question arose before us for consideration earlier in 970082--> . The question that arose before us for consideration in that case was whether the stipulation regarding Limitation u/s 28(4) of the Hindu Marriage Act or the stipulations of Section 19(3) of the Family Courts Act will apply to the challenge of an order passed under the Hindu Marriage Act. We have considered the question in detail and had taken the view that for the six reasons given in paragraphs 13 to 22 of that decision, the period of limitation prescribed u/s 28(4) of the Hindu Marriage Act and not the period prescribed u/s 19(3) of the Family Courts Act shall apply.

We find merit in the contention that the dictum in Viswanathan (supra) cannot be blindly imported to resolve the present controversy as the period of limitation under the Hindu Marriage Act was modified by a subsequent amendment of Section 28(4) of the Hindu Marriage Act by the Marriage Laws Amendment Act 2003 which came into force with effect from 23.12.2003 that is long after the Family Courts Act was enacted. The learned Counsel Dr. Sebastian Champappilly further points out that this Court had not considered the play of the non-obstante clauses in Section 19(1) and 20 of the Family Courts Act in coming to that conclusion in Viswanathan (supra).

The learned Counsel for the appellant Shri M.P.Liju points out that of the six reasons referred to by this Court in Viswanathan (supra), at least four would apply on all fours in the instant case also. The learned Counsel for the appellant as also the amicus curiae further point out that the very fact that the Marriage Laws Amendment Act did not think it necessary to amend Section 19(3) of the Family Courts Act and felt that it was sufficient to amend Section 28(4) of the Hindu Marriage Act and Section 39 of the Special Marriage Act is itself indicative of the fact that the Parliament did not think that the period prescribed u/s 19(3) will apply to all appeals against decisions of the Family Courts. If that be so, it should have been much easier and simpler for the Parliament to amend Section 19(3).

The learned amicus curiae points out that even though this Court had omitted to consider the play of the non-obstante clauses in Section 19(1) and 20 in Viswanathan (supra), the said non-obstante clauses cannot be held to bar the operation of the period of limitation prescribed under the substantive law, that is the Divorce Act.

We have considered the submissions of the learned Counsel. The first reason referred to in Viswanathan (supra) that Section 19(3) is a general stipulation and the period of limitation prescribed under the special statutes like the Hindu Marriage Act, the Special Marriage Act and the Divorce Act are special provisions and by the operation of the accepted maxim that the special must exclude the general, the period of limitation for appeal u/s 10 of the Divorce Act must prevail.

We have no hesitation to endorse and accept that conclusion here also. Section 19(1) relates to appeals against the decisions of the Family Court. Under the Family Courts Act several orders may be passed by the Family Courts but only certain orders i.e. non-interlocutory orders alone are appealable. Provisions of Section 19 would apply to all such non interlocutory orders which the Family Court is in law entitled to pass. Whether under the Code of Civil Procedure, an appeal lies or not, Section 19 mandates that an appeal shall lie to the High Court u/s 19. Thus, undoubtedly, we agree that provisions of Section 19(1) are general in nature and the special periods of limitation prescribed under the concerned special laws are special and it is the stipulations under the special legislation which must prevail.

We are not oblivious to the fact that insofar as an appeal against an order u/s 10 of the Divorce Act is concerned, period of limitation is not prescribed under the Divorce Act itself as in the case of Section 28(4) of the Hindu Marriage Act. But read along with Sections 45 and 55 of the Divorce Act, Section 96 of the Code of Civil Procedure, Section 12 of the Kerala Civil Courts Act, Section 7 of the Family Courts Act and Article 116 of the Limitation Act, it was got to be held that the period of limitation is prescribed under the Divorce Act, though not as per a specific stipulation in that Act not expressly but by necessary implication. Thus the special Law, the Divorce Act indirectly stipulates the period of limitation for filing an appeal against an order u/s 10. The simple fact that period of limitation is fixed by specific provisions in the Hindu Marriage Act and the Special Marriage Act whereas the same is not fixed by any specific provisions of the Divorce Act does not militate against our conclusion that prescription of 90 days as the period of limitation for an appeal under the Divorce Act (of course by a conjoint reading of Sections 45 and 55 of the Divorce Act, Section 96 of the C.P.C., Section 12 of the Kerala Civil Courts Act and Article 116 of the Limitation Act) is special and that u/s 19(3) of the Family Courts Act is general.

The second reason in Viswanathan (supra) is also squarely applicable because the right of appeal is conferred not under the provisions of the Family Courts Act but only under the provisions of the Divorce Act. The Family Courts Act does not really deal with substantive law. It deals only with the special procedure which ought to be followed in the resolution of family disputes, defined extensively in Section 7 of the Family Courts Act. Even a provision like Section 19 of the Family Courts Act in so far as it deals with an appeal against an order passed u/s 10 of the Divorce Act must be held to be only procedural and not substantive in its core. In that view of the matter, we unhesitatingly agree and hold that not Section 19(3) of the Family Courts Act; but Section 10 read with Sections 45 and 55 of the Divorce Act confers the substantive right of appeal. Following the second reason in Viswanathan (supra) that the substantive provisions have to be preferred to procedural stipulations, we agree that the period of 90 days must be preferred.

The third reason shown in Viswanathan (supra) does not obviously apply as the Family Courts Act is enacted long after the enactment of the Divorce Act and there is no subsequent alteration of the provisions of the Divorce Act after the Family Court Act came into effect in relation to the provisions for appeal. So the third reason in Viswanathan (supra) can have no application to the instant controversy.

So far as the 4th reason in Viswanathan (supra) is concerned, we feel that the said reason must apply to the instant case also as in respect of stipulations which take away a right to sue a cautious approach and strict construction is warranted. If the language is clear, express, precise and unambiguous, the lesser period of stipulation shall have to be accepted by the courts. But where two interpretations are found to be possible, courts must reasonably impute to the legislature an intention to prescribe a larger period of limitation. This is more so in the light of the observations in Savitri Pandey Vs. Prem Chandra Pandey, , where the Supreme Court has spoken about the need for prescribing a larger period of limitation for matrimonial proceedings which observation prompted the Parliament to introduce the Marriage, Laws Amendment Act, 2003. The fourth reason in Viswanathan (supra) also operates in favour of the appellant entitling him to the larger period of limitation.

The 5th reason in Viswanathan (supra) does not apply obviously and it is unnecessary to refer to the same.

The 6th reason shown in Viswanathan (supra) does also apply as different periods of limitation for an appeal u/s 10 of the Divorce Act depending on the question as to whether a Family Court or a District Court has disposed of the matter may offend the principles of equality.

Thus, we find that the said four reasons that is reasons 1,2,4 and 6 in Viswanathan (supra) do also favour an interpretation in favour of a larger period of limitation.

The short question that remains to be considered is whether the non-obstante clauses in Sections 19 and 20 can override the applicability of the period of limitation prescribed for an appeal u/s 10 in the light of Sections 45 and 55 of the Divorce Act, Section 96 of the Code of Civil Procedure, Section 7 of the Family Courts Act and Section 12 of the Kerala Civil Courts Act read with Article 116 of the Limitation Act.

The learned amicus curiae points out that a non-obstante clause cannot be reed mechanically. The totality of the circumstances have to be taken into account. The precise intention of the legislature will have to be ascertained. Vague and general non-obstante clauses cannot operate to militate against specific stipulations made in earlier enactments to meet specific situations. So construed, the learned Counsel argues that it is not necessary to reckon the non-obstante clauses in Section 19(1) and 20 to defeat the stipulations of different periods of limitation earlier under the provisions of the substantive law.

Our attention has been drawn by the learned Counsel to the following decisions to ascertain the true impact of a non-obstante clause and as to how it has to be construed.

R.S. Raghunath Vs. State of Karnataka and another,

A.G. Varadarajulu and Another Vs. The State of Tamilnadu and Others,

We now come to Section 19(1). We are unable to agree that the stipulation "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" can have any impact on the right of appeal u/s 45 read with Section 55 of the Divorce Act against an order u/s 10 of the Divorce Act. According to us the simple language of Section 19 only says that if the provisions of the CPC do not provide an appeal, notwithstanding that an appeal would be maintainable u/s 19(1). Several instances can perhaps be pointed out where under the Code of Criminal Procedure, no appeal would have been maintainable and only a revision may have been maintainable. But even such orders, which are not appealable under the Code of Civil Procedure, become appealable u/s 19(1). This to our mind is the short purpose of the non-obstante clause in Section 19(1). The fact that an appeal may not have been maintainable under the CPC does not affect the maintainability of such an appeal u/s 19(1). According to us, it would be incorrect and myopic to extend the play of the non-obstante clause to any larger domain or field.

It may not be inapposite in this context to note that in Section 19(3) which stipulates the period of limitation - 30 days for all appeals, there is no non-obstante clause. It is relevant that while Section 19(1) has a non obstante clause, Section 19(3) does not have a non-obstante clause. In this view of the matter also, we feel that the non obstante clause in Section 19(1) cannot apply to the stipulation of the period of limitation in Section 19(3) though both 19(1) and 19(3) fall under one main section, that is Section 19.

We agree with the learned Counsel that the subsequent course adopted by the Parliament in the wake of Savithry Pandey (supra) for amending the period of limitation stipulated u/s 28(4) of the Hindu Marriage Act and Section 39 of the Special Marriage Act without altering Section 19(3) supports the view which we have taken above. Following the decision in Savitri Pandey (supra) the Parliament was persuaded to enhance the period of limitation for appeals against orders of the Family Court in matters of marriage and divorce. Following Savitri Pandey (supra), it is reasonable to assume that the Parliament must have wanted to enlarge the period of limitation for appeals against all orders which are appealable under the provisions similar to Section 28 of the Hindu Marriage Act and Section 39 of the Special Marriage Act. Parliament appears to have been conscious of the fact that not the period of limitation u/s 19(3); but only the period of limitation of 90 days under Article 116 would apply to other similar appeals under the Divorce Act. If that be not so, we find no reason why the Parliament did not amend Section 19(3) following the mandate of Supreme Court in Savitri Pandey (supra) and chose to amend Section 28(4) of the Hindu Marriage Act and Section 39 of the Special Marriage Act only. The course adopted by Parliament following the decision in Savithri Pandey (supra) of not amending Section 19(3) and of amending Section 28(4) of Hindu Marriage Act and Section 39 of the Special Marriage Act by introducing the Marriage Laws Amendment Act, 2003, is a convincing indication that Parliament reckoned that the periods of limitation prescribed under such special statutes (including the Divorce Act) are to prevail over the period of limitation u/s 19(3) of the Family Courts Act.

We have further considered the provisions of Section 19(5) and Section 20. The generality of the stipulations in those provisions does not also persuade us to take the view that stipulations in Section 19(3) must override the specific stipulation of a larger period of limitation under the relevant special Law.

The above discussions lead us to the conclusion that the period of limitation for an appeal against an order u/s 10 of the Divorce Act is 90 days as per Article 116 of the Limitation Act and not 30 days as stipulated u/s 19(3). This appeal is thus found to be not barred by limitation. Registry shall number the appeal and post the same for admission hearing.

Dr. Sebastian Champappilly, the learned Counsel appearing as amicus curiae submit that a malady prevails in the system and it would only be appropriate in this case to point out the malady before this Court. The learned Counsel points out that free copies of the orders of the Family Courts which are expected to be given are not being promptly given. Ultimately, when it is given, the date on which it is given, is not mentioned also. This considerably affects and impairs the right of appeal of the aggrieved. The appellate Courts naturally, in the absence of any input, will have to assume that the free copy of the order must have been issued on the date of the order. This causes difficulties in the computation of the period of limitation in each such case. The learned Counsel submits that it will be apposite if directions are issued to the Family Courts to invariably endorse the date on which the free copy is ready/handed over to the party/counsel concerned. That would abate a lot of unnecessary problems to the litigants, submits counsel. In this case appeal is preferred by producing the certified copy and not the free copy.

The learned Counsel prays that an endorsement identical to the endorsement contemplated under Rule 254 of the Civil Rules of Practice (with appropriate modifications) must be insisted on all free copies which the Family Court is obliged to furnish under the relevant provisions.

We find force in that submission. Ideally Courts must be in a position to furnish the free copy on the date on which the judgment/order is pronounced. But where court is not able to furnish the same, such inability cannot be permitted to operate to the detriment and disadvantage of the litigant. The Registry shall bring this fact to the notice of the Committee exercising supervisory jurisdiction over the Family Courts. Until relevant rules are framed, it has to be insisted that the free copies furnished must show the date on which the free copies are made ready, the date which is notified to enable the litigant to obtain copy as also the date on which the same is handed over to the litigant. This would avoid a lot of unnecessary confusion and disputes about the computation of the period of limitation. Registry shall do the needful in the matter.