Pramila Das vs Gourahari Das

The Appeal was sought to be moved on 4th October, 2023. We had, by our order made on that date raised query. Paragraph-2 of order dated 4th October, 2023 is reproduced below.

“On query from Court Mr. Samantaray submits, the appeal is to be preferred to the High Court in terms of provision in section 19 of Family Courts Act, 1984. On further query regarding limitation provided by the section to be 30 days he submits, section 28 in Hindu Marriage Act, 1955 provides for limitation of 90 days in respect of appeal from decree granted under provisions in said Act.”

We had appointed to Mr. Satapathy, learned advocate to be Amicus Curiae.

Mr. Samantaray, learned advocate appearing for appellant-wife and learned Amicus Curiae submit, a Full Bench of this Court has answered the question on reference by order dated 26th September, 2023 in MATA no.54 of 2020 (Bibhuti Bhsuan Rout vs. Sasmita Nayak and another). By it view taken was, appeal from order of the Family Court has prescribed period of 30 days while that made by any other court subordinate for appeal to the High Court, it is 90 days.

Learned Amicus Curiae submits, prescribed period for preferring appeal from order made under Hindu Marriage Act, 1955 was initially 30 days. The period has direct nexus with provision in section 15, restricting a person to get married within the prescribed period in which an appeal could be preferred from a decree of divorce. It was felt that this period was too short and hence, there was amendment enlarging the prescribed period to 90 days. However, Family Court Act, 1984 was enacted with prescribed period in Hindu Marriage Act, 1955 at that time being 30 days. Subsequent amendment in Hindu Marriage Act, 1955 enlarging the prescribed period has not been made in Family Courts Act, 1984. Hence, paragraph-14 in Bibhuti Bhusan Rout (supra). We reproduce below the paragraph.

“14. We would be failing in our duty if we do not record the anxiety, as expressed by the learned Senior Counsel regarding the difficulties faced by the people from the rural segments and the under-developed regions in filing an appeal before the High Court. In this regard, we should observe that such causes are considered liberally for condoning the delay as the High Court intends to secure the interest of substantive justice.”

Mr.  Samantaray  submits,  though  his  client’s  appeal  was preferred beyond 30 days but no application for condonation of delay is required because sub-section(3) in section 29 of Limitation Act, 1963 says nothing in it shall apply to any proceeding with respect to marriage and divorce under any such law. Learned Amicus Curiae points out, prior to Bibhuti Bhusan Rout (supra) there was direction on view taken by a Division Bench of this Court for computing the prescribed period regarding filing of appeal from orders of the Family Court at 90 days. This is why, present appeal was reported to be filed in time though filed beyond 30 days.

There has been delay beyond prescribed time of 30 days in filing present appeal. Though it was filed prior to Bibhuti Bhusan Rout (supra), it is being moved today. It is also true that a judgment is discovery of the correct position in law and therefore has retrospective effect. This was declared in Supreme Court in ACIT, Rajkot v. Saurashtra Kutch Stock Exchange Ltd., reported in (2008) 14 SCC 171, paragraph 35. In the circumstances, we are unable to accept Mr. Samantaray’s submission that his client does not need to apply for condonation of delay simply because it would have effect of rendering otiose prescribed period of 30 days in respect of appeals from orders of the Family Court, as provided in section 19 of the Act and confirmed by view taken in Bibhuti Bhusan Rout (supra). Learned Amicus Curiae submits, the Supreme Court has declared application of section 5 in marriage and divorce cases in the High Courts on its own term, by judgment dated 11th December, 2006 in Civil Appeal no.5693 of 2006 (Adhyaatamam- Bhamini vs. Jagdish Ambalal Shah).

Hearing on admission of the appeal is adjourned to enable filing of condonation of delay application. We record our appreciation to learned Amicus Curiae for the assistance rendered.

List on 20th November, 2023.

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