Family Courts Not Available In All Districts, 30-Day Limitation To Appeal Under FC Act v/s 90 Days Under HMA Can Prejudice Litigants: Gauhati HC
The Gauhati High Court recently allowed an application seeking condonation of a 21-day delay in filing an appeal against a family court's order, after noting that this 21-day delay which was already beyond the prescribed 30-day limitation period as prescribed under the family court's act may not classify as “barred by limitation”. A division bench comprising Justice Sanjay Kumar Medhi...
The Gauhati High Court recently allowed an application seeking condonation of a 21-day delay in filing an appeal against a family court's order, after noting that this 21-day delay which was already beyond the prescribed 30-day limitation period as prescribed under the family court's act may not classify as “barred by limitation”.
A division bench comprising Justice Sanjay Kumar Medhi and Justice Kakheto Sema observed that in the instant case, the delay is 21 days beyond the limitation period, which, in the comprehension of the court cannot be termed as an "inordinate one".
“In view of the aforesaid conspectus and also by referring to the views expressed by the Full Bench of the Hon'ble Bombay High Court as mentioned above, we are of the considered opinion that the delay of 21 days which has been calculated by counting the same with a period of limitation as 30 days may not even come into the way of preferring the appeal in the form of “barred by limitation”. In any case, we are of the view that the delay, not being inordinate and there is an explanation provided which is acceptable, the same is required to be condoned which we accordingly do,” the Court held.
The Court further observed that before the enactment of the Family Courts Act 1984 (FC Act), an appeal against a decree passed by the District Judge under the Hindu Marriage Act 1955 (HMA) would have to be filed under Section 28 of HMA. It said that the period of limitation prescribed for such an appeal was "30 days".
After the Supreme Court's ruling in Savitri Pandey v. Prem Chandra Pandey (2002) Section 28(4) HMA was amended in 2003 and the period of limitation was extended from "30 to 90 days", it noted. It thus noted that when the FC Act was enacted in 1984, consistency was maintained on the aspect of limitation vis-a-vis Section 28 of HMA; thus in both Acts limitation period was 30 days.
However, the court observed, that after the decision in Savitri Pandey while HMA was amended a corresponding amendment was not carried out in FC Act, thereby leading to an inconsistency.
The Court further said that in Assam, Family Courts are not available in all the districts; in those districts where Family Courts are available matrimonial disputes are adjudicated under the FC Act.
On the other hand, in the districts where the Family Court is unavailable, the District Judge's court adjudicates matrimonial disputes under the HMA.
"The litigants, as such, are not left with any option to choose the forum and it depends as to where the cause of action would arise. That being the position, it would be prejudicial to a litigant in the aspect of preferring an appeal from a judgment passed by the Family Court vis-à-vis a litigant preferring an appeal from a judgment passed by a District Judge on the point of limitation,” the Court highlighted.
The bench thus, after considering the direction of the apex court in Savitri Pandey on "litigants coming from far flung districts to the High Court to prefer an appeal", said that it is "desirable that a uniform period of limitation be prescribed".
The Court was hearing an application filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 21 days in filing the connected appeal against the judgment dated June 12, 2024 and order dated June 14, 2024 passed by the Principal Judge, Family Court -2, Kamrup (Metro).
The Counsel appearing for the applicant submitted that the delay in the instant case is only 21 days and the reasons for the same have been adequately pleaded in the application, more specifically paragraphs 13, 14 and 15 thereof. It was submitted that the instant appeal has been preferred qua a judgment passed by the Family Court in a suit filed by the applicant for annulment of the marriage.
It was argued that though the impugned judgment was passed on June 14, 2024, and the certified copy was applied for on June 15, 2024, due to the fact that the applicant is ordinarily residing in the State of Meghalaya, he could not come to collect the certified copy prior to July 18, 2024. It was also submitted that in matters pertaining to the Family Court, the parties are required to present in person to collect certified copies.
On the other hand, the Counsel appearing for the respondent submitted that while the certified copy was applied on June 15, 2024 and the same date was notified for requisite stamps and folios, the same was deposited only on July 18, 2024, and thereby the negligence of the applicant becomes apparent.
It was further submitted that the delay is required to be explained not from the date of expiry of the limitation but from the date when the limitation starts. It was argued that no sufficient cause has been cited and there being suppression of material facts, the instant petition is required to be dismissed.
The Court placed reliance upon the judgment of the Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Katiji (1987) 2 SCC 107 wherein it was held that there is no strict requirement of explaining each day's delay.
“In the instant case, the delay is of 21 days which, in the comprehension of this Court cannot be termed to be an inordinate one. So far as the reasons cited to explain the said delay, it appears that there is some inconsistencies in the pleadings of the application regarding the date when the certified copy of the impugned judgment was made available. The learned counsel for the applicant has explained the position that the pleadings in paragraph 14 are not properly worded and it is not in dispute that the certified copy was received on 18.07.2024, as would reveal from the certified copy itself which is annexed to the memo of appeal,” the Court noted.
The Court further relied upon the a Full Bench decision of the Bombay High Court in Shivram Dodanna Shetty v. Sharmila Shivram Shetty (2017) wherein it was held that for an appeal filed under Section 19(1) Family Courts Act, the period of limitation prescribed under Section 28(4) of HMA shall apply. The Bombay high court had said this after observing that 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, as such an approach would "frustrate very purpose of legislation".
The bench thus held that the delay in the present case was not inordinate and would not time bar the appeal and allowed the condonation of delay application.
Case Title: X v. Y
Citation: 2025 LiveLaw (Gau) 10
Case No.: I.A. (Civil)/2463/2024
