Period Of Limitation For Filing Appeal Against Family Court Order Is 30 Days, Delay Can Be Condoned If Sufficient Cause Shown: Delhi High Court

The Delhi High Court has ruled that the period of limitation for filing an appeal against a judgment or order of the family court is 30 days.

A division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan added that the delay in filing of such an appeal can be condoned under Section 5 of the Limitation Act. 1963, if sufficient cause is shown.

“…the period of limitation for filing an appeal against a judgment or order of the Family Court is thirty days. However, for sufficient cause to be shown, the delay in filing can be condoned under Section 5 of the Limitation Act. 1963,” the court said.

The court was deciding a wife’s appeal challenging a family court order allowing the husband’s petition seeking divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

The husband raised a preliminary objection that the appeal was barred by limitation. It was his case that as the appeal was filed under the Family Courts Act, 1984, it should have been filed within a period of 30 days as provided under section 19(3) of the enactment.

On the other hand, it was the wife’s case that the appeal was filed under Section 28 of the Hindu Marriage Act, wherein the period of limitation prescribed was 90 days.

The question before the bench was in view of the inconsistency between the two provisions regarding the period of filing the appeal, which one will prevail?

Placing a caveat, the court said that States where the Family Courts have not been established by the State Governments, there would be no inconsistency and the period prescribed under Section 28 of Hindu Marriage Act for filing an appeal i.e. 90 days would apply.

Furthermore, the bench also noted that an amendment was brought in the Hindu Marriage Act and the Special Marriage Act vide which the period for filing an appeal from an order or decree of the family court was enlarged to 90 days.

“However, it may be noticed that no corresponding amendment has been made to the Family Courts Act and the period prescribed by Section 19 of the Family Courts Act continues to be thirty days,” the court said.

It added, “Thus the period of limitation for filing an appeal from an appealable order and decree of the District Court would be ninety days under section 28 of HMA and the period of limitation for filing an appeal from an appealable order and judgment of the Family Court, wherever it has been set up, would be thirty days under section 19 of the Family Courts Act.”

The bench also disagreed with a judgment of the coordinate bench which had taken a view that the period of limitation for filing an appeal against the appealable orders and judgment of the Family Court would be ninety days. However, it did not refer the matter to a larger bench in view of Apex Court l’s decision in Arunoday Singh vs. Lee Anne Elton wherein it considered the period of limitation for filing an appeal in respect of a decree of divorce passed under the Special Marriage Act, 1954.

The bench also disagreed with the judgment of full bench of Bombay High Court which held that the limitation period for filing an appeal against an order or judgment of the Family Court would be 90 days.

Also Read: S.28 Hindu Marriage Act Prevails Over S.19 Family Courts Act, Time Limit To Prefer Appeal Is 90 Days: Gujarat High Court

In view of the divergent view of the coordinate bench and the later pronouncement of the Supreme Court, the court granted an opportunity to the wife to file an appropriate application seeking condonation of delay and listed the appeal before the roster bench.

Case Title: PALLAVIMOHANALIASPALLAVIMENON v. RAGHU MENON

Citation: 2023 LiveLaw (Del) 825

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