Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) No.10751 of 2021
ARUNODAY SINGH … PETITIONER (S)
VERSUS
LEE ANNE ELTON … RESPONDENT (S)
J U D G M E N T
Indira Banerjee, J.
th
1. This Special Leave Petition is against an order dated 9 March
2021 passed by the Jabalpur Bench of the High Court of Madhya
Pradesh allowing I.A. No.5526 of 2020 being an application for
condonation of the delay in filing First Appeal No.445 of 2020.
2. The High Court has, by the impugned order condoned the delay
in filing the First Appeal under Section 19 of the Family Courts Act,
1984, read with Section 39 of the Special Marriage Act, 1954,
th
challenging an ex parte judgment and decree of divorce dated 18
December 2019 passed by the First Additional Principal Judge, Family
Signature Not Verified
Court, Bhopal in Regular Civil Suit No.89-A/2019 filed by the
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2022.07.11
17:23:45 IST
Reason:
Petitioner.
1
3. The marriage between the Petitioner and the Respondent was
dissolved by the Family Court by a judgment and a decree of divorce
th
dated 18 December 2019 under the provisions of the Special Marriage
Act, 1954. Being aggrieved the Respondent filed an appeal being F. A.
No.445 of 2020 under Section 19 of the Family Courts Act, 1984 read
with Section 39 of the Special Marriage Act, 1954. The Appeal appears
st
to have been filed on 1 March 2020.
4. The High Court has, on consideration of the application for
condonation of delay, been satisfied that there was sufficient cause
for the delay in filing the First Appeal and accordingly condoned the
delay. The finding of the High Court of existence of sufficient cause
for the delay in filing the Appeal does not warrant intervention in
exercise of powers under Article 136 of the Constitution of India.
5. Mr. Ravindra Shrivastava, Senior Counsel appearing on behalf
of the Petitioner submitted that the High Court grossly erred in law in
condoning the delay in filing the appeal from a decree of divorce
under the Special Marriage Act, 1954 passed by a Family Court
constituted under the Family Courts Act, 1984.
6. The short question raised by the Petitioner for determination in
this Appeal is, whether delay in filing an Appeal from a decree of
divorce, granted by a Family Court under the Special Marriage Act,
1954, can be condoned under Section 5 of the Limitation Act, 1963.
2
7. The relevant provisions of the Limitation Act 1963, Family
Courts Act, 1984 and Special Marriage Act, 1954 are set out
hereinbelow for convenience:-
“ Section 29(3) of the Limitation Act.
29. Savings.–
…….
(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from the
period prescribed by the Schedule, the provisions of section 3
shall apply as if such period were the period prescribed by the
Schedule and for the purpose of determining any period of
limitation prescribed for any suit, appeal or application by any
special or local law, the provisions contained in sections 4 to
24 (inclusive) shall apply only in so far as, and to the extent to
which, they are not expressly excluded by such special or
local law.
(3 ) 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.”
Section 19(3) and 20 of the Family Courts Act, 1984.
19. Appeal -.
…..
(3) Every appeal under this section shall be preferred within a
period of thirty days from the date of the judgement or order
of a Family Court.
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.
Section 39(4) and 40 of the Special Marriage Act, 1954
39. Appeals from decrees and orders . —
(4) Every appeal under this section shall be preferred within a
period of ninety days from the date of the decree or order.
3
40. Application of Act 5 of 1908 .—Subject to the other
provisions contained in the Act, and to such rules as the High
Court may make in this behalf, all proceedings under this Act
shall be regulated, as far as may be, by the Code of Civil
Procedure, 1908 (5 of 1908).”
8. Mr. Shrivastava argued that Section 19(3) of the Family Courts
Act, 1984, mandates that every appeal under the said Section is to
be preferred within 30 days from the date of judgment or order of a
Family Court and Section 20 of the said Act confers overriding effect
on the provisions of the Family Courts Act, notwithstanding anything
inconsistent in any other law for the time being in force. Section
39(4) of the Special Marriage Act mandates that every appeal under
the aforesaid Section shall be filed within a period of 90 days.
9. Relying on Sections 19(3) and 20 of the Family Courts Act, 1984,
Mr. Shrivastava forcefully argued that every appeal from a decree
passed by a Family Court had to be filed within 30 days from the date of
the decree . By reason of the overriding provision of Section 20 of the
Family Courts Act, the provision of Section 19(3) of the Family Courts
Act would prevail over Section 39(4) of the Special Marriage Act
under which the period of Limitation for filing an appeal from a
decree under the said Act is 90 days. Mr. Shrivastava argued that
Section 19(3) of the Family Courts Act which required an appeal to be
filed within 30 days was binding.
10. Emphasizing on Section 29(3) of the Limitation Act, Mr.
Shrivastava submitted that no provision of the Limitation Act is
4
applicable to any suit or other proceedings relating to marriage or
divorce, including an appeal therefrom, unless the specific law
governing the marriage or divorce makes an exception.
11. Mr. Shrivastava argued that the Special Marriage Act does not
make any exception to Section 29(3) of the Limitation Act. There is
no provision in the special Marriage Act making the Limitation Act
applicable to suits or proceedings under the Special Marriage Act.
The delay in filing an appeal from any decree or order in any suit or
other proceeding relating to marriage or divorce under the Special
Marriage Act is therefore, not condonable under Section 5 of the
Limitation Act.
12. Section 5 of the Limitation Act, 1963 provides:-
“5. Extension of prescribed period in certain cases .—
Any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil
Procedure, 1908 (5 of 1908), may be admitted after the
prescribed period if the appellant or the applicant satisfies
the court that he had sufficient cause for not preferring the
appeal or making the application within such period.
Explanation.—The fact that the appellant or the applicant
was misled by any order, practice or judgment of the High
Court in ascertaining or computing the prescribed period
may be sufficient cause within the meaning of this section.”
13. The main question involved in this Special Leave Petition is,
whether the delay in filing an appeal from a decree passed by a
Family Court under the Special Marriage Act is condonable under
Section 5 of the Limitation Act.
5
14. Section 29(2) of the Limitation Act says that where any special
or local law prescribes for any suit, appeal or application, a period of
limitation different from the period prescribed by the Schedule to the
Limitation Act, the provision of Section 3 of the Limitation Act would
apply as if such period were the period prescribed by the Schedule
and for the purpose of determining any period of limitation
prescribed for any suit, appeal or application by any special or local
law, the provisions contained in Sections 4 to 24 (inclusive) shall
apply only insofar as, and to the extent to which, they are not
expressly excluded by such special or local law.
15. Under Article 116 of the Schedule to the Limitation Act the
period of limitation prescribed for an appeal to the High Court from
any decree or order is 90 days. The period of limitation for appeal to
the High Court from the decree or order of the same Court is 30
days. Section 39(4) of the Special Marriage Act also provides that every
appeal under the aforesaid Section is to be preferred within a period of
90 days from the date of the decree or order.
16. However, as observed above, Section 19(3) of the Family
Courts Act requires every appeal from a judgment or order of the
Family Court to be filed within 30 days. The provisions of the Family
Court Act have effect notwithstanding anything inconsistent
contained in any other law for the time being in force.
17. Section 19(3) of the Family Courts Act provides a shorter period
of limitation than Section 39(4) of the Special Marriage Act, 1954 or
6
Article 116 of the Schedule to the Limitation Act, 1963. There is an
inconsistency between the period of limitation for filing an appeal
prescribed by the Family courts Act and the Special Marriage Act, as
also the Limitation Act.
18. By reason of the non-obstante provision of Section 20 of the
Family Courts Act giving overriding effect to the Family Courts Act,
the period of limitation for filing an appeal from a judgment and
order of a Family Court constituted under the Family Courts Act would
be 30 days and not 90 days. The High Court thus found that the
Appeal was delayed, even though the Appeal was filed well within 90
days.
19. The Appeal was under Section 19 of the Family Courts Act
which is not substantive law relating to marriage and divorce but an
Act for constitution of Family Courts to deal with disputes relating to
marriage and family affairs. The proceedings in the Family Court
relating to marriage and divorce are not proceedings under the
Family Courts Act even though the procedure prescribed under the
Family Courts Act may be followed. Section 29(3) of the Limitation
Act is, therefore, not attracted to appeals under the Family Courts
Act. Moreover, there is no inconsistency between Section 19 of
Family Courts Act, 1984 and Section 5 of the Limitation Act, 1963
which provides for condonation of delay in filing an appeal where
there is no sufficient cause.
7
20. Section 29(2) of the Limitation Act clearly provides that where
any special or local law prescribes a period of limitation different
from the period prescribed by the Schedule to the Limitation Act, the
provisions contained in Sections 4 to 24 of the Limitation Act would
apply only insofar as and to the extent to which they are not
expressly excluded by such special or local law.
21. There can be no doubt nor any dispute that the Family Courts Act
as also the Special Marriage Act are special laws. However, neither of
these special enactments have expressly excluded the application of
Sections 4 to 24 of the Limitation Act to Appeals under the said special
enactments.
22. The issue before this Court is the scope and ambit of Section
29(3) of the Limitation Act extracted above, which excludes the
application of the Limitation Act itself to any suit or other proceeding
under any law with respect to marriage and divorce, unless it is
otherwise provided by that law.
23. Section 29(3) of the Limitation Act excludes the application of the
Limitation Act to any suit or other proceeding under any law with
respect to marriage and divorce. The prohibition of Section 29(3) of the
Limitation Act is restricted to suits and proceedings in the suit as
observed by Nambiar, J. in Kunnarath Yesoda v. Manathanath
1
Narayanan . What is excluded from the purview of the Limitation Act,
under Section 29(3) thereof, is suits and other proceedings of an original
nature relating to marriage and divorce, such as a petition for relief
1. AIR 1985 Ker 220
8
under the marriage and divorce Laws. The Limitation Act is inapplicable
to original proceedings.
24. However, appeals from orders and decrees in suits under the
Indian Divorce Act or the Special Marriage Act or the Hindu Marriage Act
are not excluded from the operation of the Limitation Act. The reason for
excluding matrimonial suits from the operation of the Limitation Act is
obvious. It is the policy of law that suits for restitution of conjugal
rights, for judicial separation or for divorce should not get barred by
limitation if the same are not filed within the prescribed time limit.
25. Original proceedings under the Hindu Marriage Act or the Special
Marriage Act or any other matrimonial law are within the ambit of
Section 29(3) of the Limitation Act. As held by a Division Bench of
2
Calcutta High Court in Smt. Sipra Dey v. Ajit Kumar Dey , even
though lexically, logically and in common as well as in legal parlance
the expression “proceeding” would include an appeal, an application
and even a suit, there are good and weighty reasons to apply the rule of
noscitur a sociis to the word proceeding in the expression suit or other
proceeding in Section 29(3) of the Limitation Act and to construe the
same to mean proceeding in the nature of suit, that is, original
proceeding and not to include appeal.
26. In Sipra Dey v. Ajit Kumar Dey (supra), the Division Bench
held:
“7. A survey of the provisions of the present Limitation Act
would also demonstrate that whenever provisions have been
made for appeals, the Legislature has expressly used the
2. AIR 1988 Cal 28
9
expression appeal as in Ss. 3, 4, 5, 12, 13, 29, 30 and 31 of
the Act and that being the general frame of the Act, we are
inclined to think that if the Legislature intended to make the
provisions of S. 29(3) applicable to appeals also, it would
have clearly said so in express words. The very preceding
sub-sec. (2) of Sec. 29 has also used the expression suit,
appeal and application instead of the expression proceeding
as that sub-section was clearly intended to apply to appeal
also. Our attention could not be drawn to any section or
Article of the Limitation Act applying to appeals which has,
without expressly using the expression appeal, has used the
wider expression proceeding.
8. Some of the provisions of the Limitation Act relating to
appeals enact principles which are eminently ‘reasonable’
and evidently ‘right’, ‘just and fair.’ For example, it is
obviously reasonable to provide, as provided in S. 12, that
the time requisite for obtaining copies of the judgment and
decree shall be excluded in computing the period of
limitation for the appeal. The provision of S. 5 empowering
the Court to admit appeal even after the prescribed period
for good and sufficient cause is also another such provision.
To construe the word proceeding in S.29(3) to
include appeal would be to overthrow all these reasonable
provisions in respect of appeal, while to construe the same
as to exclude appeal and to mean only original proceeding in
the nature of a suit would be to make all these reasonable
provisions available to appeals. The latter construction can
easily be arrived at by applying the principle Noscitur A
Sociis and since where two constructions are possible, that
which would be more conducive to reason and justice is to
be preferred, we would adopt that construction.
*
12. There is yet another good reason not to construe the
expression other proceeding in S. 29(3) of the Limitation Act
of 1963 as to include appeals. Until the enactment of this
Act of 1963, matrimonial appeals under S. 28 of the Hindu
Marriage Act, 1955, as it stood then, were being governed
by the provisions of the preceding Limitation Act of 1908
both in respect of the period of limitation as well as in
respect of enlargement of that period by extension or
exclusion under the provisions of Ss. 5, 12 and other
Sections. And though periods of limitation for matrimonial
appeals under S. 47 of the Parsi Marriage & Divorce Act,
1936 and under S. 39 of the Special Marriage Act, 1954 were
specially provided in those Sections, in respect of
computation of such period, the provisions of the Limitation
10
Act providing for extension or exclusion as in Ss. 5, 12 etc.
used to apply. The reason for application of the provisions of
the Limitation Act, 1908 to the matrimonial appeals under
the aforesaid three Acts was that S. 29(3) of that Act made
the Act inapplicable only “to suits under the Divorce Act.”
But if we now construe the expression other proceeding in S.
29(3) of the present Limitation Act of 1963 to include
appeals also, and thus make the Limitation Act of 1963
inapplicable to all matrimonial appeals, that would deprive
the appellants in all such appeals from the benefit of all the
beneficial and reasonable provisions of the Act providing for
extension and exclusion of periods. Nay, yet more startling
results. There is no provision providing for any special period
of limitation for a matrimonial appeal under the Indian
Divorce Act and the period is computed according to the
general law as provided in the Limitation Act. That was also
the position in respect of matrimonial appeals under the
Hindu Marriage Act until a special period of limitation was
provided in S. 28(4) asamended in 1976. Therefore, to hold
that the expression other proceeding in S. 29(3) of the
present Limitation Act includes appeals and the whole of the
Act is thus inapplicable to matrimonial appeals, is to hold
that there is no period of limitation for appeals under the
Indian Divorce Act and that there was also no period of
limitation for appeals under the Hindu Marriage Act from
1955 till 1976. Now it is well-settled that if the language of
the legislation can reasonably admit of two constructions,
and, if construed in one such way, would lead to palpable
absurdity or obvious injustice, the Court must act upon the
view that such a result could not have been intended, unless
a contrary intention has been manifestly enunciated in
express words (Maxwell — 10th Edition, p. 201).
13. Far from there being any express enunciation in S. 29(3)
indicating its application to appeals also, there is clear
indication in the Statements of Objects and Reasons
accompanying the Bill to the effect that the present sub-
sec. (3) of Sec. 29 of the Act of 1963 only “amplifies S. 29(3)
of the existing (i.e. the earlier) Act so as to exclude the
application of this law to suits under any law dealing with
marriage or divorce” and not to exclude its application to
appeals under any such law. We do not, as we cannot, for a
moment suggest that such statements would determine or
clinch the issue. But where, as here, a clear statement has
been made as to the object of a clause in a Bill, and that
clause has been finally enacted, the object so held out can
surely be taken due note of while ascertaining the meaning
of that clause. We have now travelled a very long distance
11
from the days of ‘no-entry’ to the present day of ‘free-entry’
of Hansard in the forensic arena. We, therefore, conclude,
and that we do without hesitation, that the words “other
proceeding” in the expression “any suit or proceeding” in S.
29(3) of the Limitation Act, 1963 mean original proceeding
in the nature of suits and do not include appeals.
14. There are a number of authorities in support of the view
we are taking, but we have so long been considering the
question on principles as, in our view, and this we say with
due respect, none of the aforesaid authorities has
considered the question in such depth or details as we have
had to do here in this case, and, in particular, the question
does not appear to have been considered in any of those
decisions with proper advertence to the Long Tide and in
the context of the various other provisions of the Limitation
Act. To start with, the Full Bench decision of this Court
in Debi Bhaduri v. Kumarjib Bhaduri, AIR 1980 Cal 1 cannot
be taken to have decided the question because the question
which concerned and was decided by the Full Bench was
whether the shorter period of limitation prescribed by S. 28
of the Hindu Marriage Act, as amended by the Amendment
Act, 1976, would apply to any appeal arising out of a
proceeding pending on the date of the commencement of
the aforesaid amendment Act The Full Bench answered the
question in the affirmative and as a result the appeal in that
case was to be taken to have been filed beyond the period
of Limitation. It was in that context that the Full Bench,
while returning the case back to the Division Bench which
made the reference, observed (at paragraphs 17 and 22)
that the appeal being thus barred by limitation, an
application for extension under S. 5 of the Limitation Act
was to be dealt with and disposed of by the Division Bench
and that the decision of the Full Bench on the question of
limitation “would not affect or prejudice the rights, if any, of
the appellant to make an application under S. 5 of the
Limitation Act”. This is, therefore, obviously no decision or
declaration of law on the question as to whether the
provisions of S. 5 of the Limitation Act would apply to
matrimonial appeals under S. 28 of the Hindu Marriage Act
in view of S. 29(3) of the Limitation Act.”
27. This Court is in full agreement with the view taken by the
Division Bench of Calcutta High Court in Sipra Dey v. Ajit Kumar
12
3
(supra). In Debi Bhaduri v. Kumarjib Bhaduri , the Division Bench
of Calcutta High Court held that the provisions of Section 5 of the
Limitation Act would apply to a matrimonial appeal under Section 28
of the Hindu Marriage Act. In Debi Bhaduri (supra), the Division
Bench of High Court of Calcutta cited with approval a Division Bench
judgment of the Delhi High Court in Shri Chander Dev Chadha v.
4
Smt. Rani Bala . In Shri Chander Dev Chadha v. Smt. Rani
Bala (supra), the Delhi High Court correctly held that the provisions
of the Limitation Act were only inapplicable to suits and original
proceedings and not to appeals.
28. For the reasons discussed, this Court holds that an appeal
under Section of 19 of the Family Courts Act, from a decree of divorce
under the Special Marriage Act is condonable.
29. It is well settled that when rejection of an apparently
meritorious appeal on the ground of limitation is pitted against
deciding the appeal on merits, the Courts are entitled to take a
liberal approach in deciding an application for condonation of delay.
That is exactly what the High Court has done.
30. There can be no dispute that appeal was filed by the
Respondent within 90 days, which was the period of limitation for
filing an appeal prescribed under the Special Marriage Act. The
lawyer advising the Respondent was under the mistaken belief that
the period of limitation was 90 days as prescribed under the Special
3. (1980) 1 Cal LJ 309
4. AIR 1979 Delhi 22
13
Marriage Act and proceeded accordingly. The Respondent was
misled by the advice of the lawyer. Thus, there was sufficient cause
for the delay. It is reiterated that the finding of the High Court of
existence of sufficient cause for the delay does not warrant
intervention under Article 136 of the Constitution of India.
31. The Special Leave Petition is, therefore, dismissed.
.…………………………………J.
[ Indira Banerjee ]
………………………………….J.
[ V. Ramasubramanian ]
New Delhi;
July 23, 2021
14