Jammu & Kashmir High Court
Smt. Renu Sharma Age 61 Years vs Sh. Anan Sharma on 21 February, 2024
Bench: Sanjeev Kumar, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
...
MA No. 40/2023
CM No. 7213/2023
Cav No. 2016/2023
Smt. Renu Sharma Age 61 years
W/O Sh. Anan Sharma
D/O Sh. B. L. Trackroo
21-D, Tawi Vihar, Sidhra, Jammu.
.....Appellant(s)
Through: Ms. Zoya Bhardwaj, Advocate.
Vs.
Sh. Anan Sharma
S/o Late Sh. Ram Lubhaya
21-D Tawi Vihar, Sidhra, Jammu.
.....Respondent(s)
Through: Mr. Ashok Mishra, Advocate.
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE PUNEET GUPTA, JUDGE
ORDER
Sanjeev Kumar J
1. Caveat stands discharged.
2. This Appeal by one Smt. Renu Sharma preferred under Section 19 of the Family Courts Act, 1984 [for short‟ the Act of 1984‟ hereafter], is directed against the judgment and decree dated 30-10-2023 passed on File No. 354/H.M. Act, titled Sh. Anan Sharma v. Smt. Renu Sharma, by the Court of learned Additional Principal Judge, Jammu ["Family Court"]. In terms of the judgment and decree impugned in this appeal, marriage between the appellant and the respondent has been dissolved.
2MA No. 40/2023
3. The impugned judgment and decree is assailed on multiple grounds. However, when the appeal was taken up for consideration, Mr. Ashok Mishra, appearing for the respondent, who was on caveat, took up an objection to the maintainability of the appeal on the ground that same was barred by limitation. He argued that in terms of Section 19(3) of the Act of 1984, the limitation for filing an appeal against the judgment or order of the Family Court is 30 days from the date of such judgment or order. The appellant has filed this appeal on 31st day from the date of judgment and decree and, therefore, same is barred by limitation. He further argued that the provisions of the Act of 1984, in view of mandate of Section 20, have overriding effect over the inconsistent provisions contained in any other law for the time being in force and since the Act does not provide for condonation of delay in filing the appeal under Section 19 of the Act, as such, the appellate Court, i.e. this Court, does not have powers and jurisdiction to entertain an appeal filed beyond a period of 30 days from the date of judgment and decree appealed from.
4. Ms. Zoya Bhardwaj, learned counsel appearing for the appellant, submits that the appeal is within period of limitation. She would submit that the impugned judgment and decree was passed on 30.10.2023 and the appellant applied for certified copy on 31-10-2023. The certified copy of the judgment and decree was, however, supplied by the Family Court on 03.11.2023. She would, therefore, argue that in view of clear provisions of Section 12 of the Limitation Act, the period taken to obtain a certified copy of the impugned judgment and decree is liable to be excluded. That being so, the appeal, which was presented before this Court on 30-11-2023, is well within time.
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5. Having heard the learned counsel for the parties and perused the material on record, following short, but an interesting question of wide ramification, arise for consideration: -
( i) Whether an appeal against the judgment and decree of dissolution of marriage passed under Section 13 of the Hindu Marriage Act, 1980 , [ 'the Act of 1980'], is governed by Section 34 thereof or is governed by Section 19 of the Act of 1984?
(ii) Whether, in the absence of any specific provision providing for condonation of delay contained either in the Hindu Marriage Act, 1980 or the Family Courts Act, 1984, an appeal against the judgment and decree passed by the Family Court could be entertained by the appellate Court after the expiry of period of 30 days from the date of such judgment and decree?
(iii) Whether the provisions of the Limitation Act would apply to the appeals under the Family Courts Act, and, if so, what is the extent of such application?
6. The petition under Section 13 of the Act of 1980 for dissolution of marriage between the parties was filed by the respondent before the Court of Additional District Judge (Matrimonial Cases) Jammu, on 29-09-2012.While the case was pending adjudication in the said Court, the Family Courts Act, 1984 came to be made applicable to the State of Jammu and Kashmir with effect from 31st of October, 2019 in view of promulgation of the Jammu and Kashmir Re-organization Act, 2019. Under the Re-organization Act of 2019, a Family Court was established in Jammu and all suits and proceedings which were pending before any District Court or Subordinate Court referred to in Section 7 including the proceedings between the parties to a marriage for dissolution of their marriage, were transferred to the Family Court. This is how the petition for divorce filed by the respondent came up for adjudication before the Family Court Jammu.
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7. Section 7 of the Act of 1984 deals with the jurisdiction of the Family Court and explanation to sub-Section (1) thereof enumerates the nature of suits and proceedings in respect whereof the Family Court under Section 3 of the Act shall have to exercise its jurisdiction. Section 19 contained in Chapter V of the Act deals with appeal, which, for facility of reference, is reproduced hereunder:-
"19. 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 (59 of 1991).
(3) Every appeal under this 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 has 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."
8. From reading of Section 19, we gather the following:
(i) An appeal shall lie from every judgment or order (not being an interlocutory order) of the Family Court to the High Court both on facts and on law;5 MA No. 40/2023
(ii) That every appeal under this Section shall be preferred within a period of 30 days from the date of judgment or order of the Family Court appealed from.
(iii) The High Court is also vested with revisional jurisdiction and may, either on its own motion or otherwise call for and examine the record of any proceedings in which the Family Court, subject to its jurisdiction, has passed an order under Chapter IX of the Code of CriminalProcedure for the purpose of satisfying itself as to the correctness, legality or propriety of the order (not being an interlocutory order).
(iv) That an appeal preferred shall be heard by a Bench consisting of two or more Judges.
9. From entire reading of Section 19 as also various other provisions made in the Act, it clearly transpires that the Act does not make any specific provision for applicability of the Limitation Law to the proceedings before the appellate Court. That apart, by virtue of provisions of Section 20, the provisions of the Act have been given overriding effect over inconsistent provisions contained in any other law for the time being in force.
10. Before we proceed, we deem it necessary to set out Section 20 below: -
"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.
11. Looking to the Act in isolation would definitely lend support to the argument of Mr. Ashok Mishra. However, we cannot lose sight of the provisions of Section 29 of the Limitation Act, 1963, which, inter alia, provide that where any special law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule appended thereto, the provisions of Section 3 shall apply as if such 6 MA No. 40/2023 period were the period prescribed by the Schedule. It further lays down that for determining any period of limitation prescribed for any suit, appeal or application by such special law, the provisions contained in Section 4 to 24 (inclusive) shall apply insofar as and to the extent to which these provisions are not expressly excluded by such law. Section 29 of the Limitation Act reads thus: -
"29. Savings.--
(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).
(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.
(4)Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend."
12. In view of the clear, categoric and unambiguous provisions of Section 29, it would not be available to the learned counsel for the respondent to argue that the applicability of the Limitation Act is completely ruled out by Section 20 of the Act of 1984 which gives the provisions of the Act an overriding effect to anything inconsistent therewith contained in any other law for the time being in force.
13. From perusal of Sections 19 and 20 and various other provisions of the Act of 1981, it is nowhere to be found that the Act contains any provision 7 MA No. 40/2023 inconsistent with the provisions of Section 29 of the Limitation Act, 1963. It is true that by virtue of provision of sub-section (3) of Section 29 of the Limitation Act, the provisions of the Limitation Act shall not apply to any suitor other proceedings in respect of marriage and divorce, however, the exclusion of applicability of various provisions of the Limitation Act by sub- section (3) (supra), is restricted and limited only to a suit or other proceedings in relation of marriage and divorce. A fortiori, it would mean that the applicability of the Limitation Act as a whole is excluded insofar as suit and other original proceedings in relation to marriage and divorce are concerned. Sub-section (2) of Section 29, which makes limited applicability of the provisions of the Limitation Act, are applicable not only to a suit or original proceedings but also to appeal and other applications. From conjoint reading of sub-section (2) and (3) of Section 29, it clearly comes out that in respect of marriage and divorce, none of the provisions of the Limitation Act would apply to any suit or other original proceedings under any such law. However, Section 3 as well as Section 4 to 24 (inclusive) of the Limitation Act shall, inter alia, apply to an appeal with respect to marriage and divorce.
14. It is also not in dispute that Schedule to the Limitation Act does not prescribe any period of limitation for filing appeal under the Family Courts Act or even under the Hindu Marriage Act. That being so, the Family Courts Act, which in any case is a special law, prescribes for appeal a period of limitation of 30 days which would be different from the period prescribed by the Schedule. It may be noted that the Schedule to the Limitation Act provides for filing Civil First Appeal a period of limitation of 90 days. However, it does not prescribe any period of limitation for filing appeal under Section 19 of the Act of 1984. It does not make any difference for providing of no period of 8 MA No. 40/2023 limitation for such appeals under Sectio 19, would mean the period prescribed under special law, i.e., Act of 1984, is different from the one prescribed by Limitation Act.
15. In that view of the matter, there shall be no dispute with regard to applicability of provisions of Section 4 to Section 24 of the Limitation Act to the appeal under the Family Courts Act. Section 12 of the Limitation Act, which applies to such appeal, clearly provides for exclusion of time taken for obtaining a certified copy of the judgment and decree appealed from.
16. The position of law is not different if we look at Section 34 of the Hindu Marriage Act, 1980. Section 34 deals with appeals from decrees and orders passed by the Court under the provisions of the Act in the exercise of its original civil jurisdiction. Sub-section (4) of Section 34 prescribes period of 30 days for filing an appeal, to be reckoned from the date of decree or order. The Act of 1980 also does not provide for application of the Jammu and Kashmir Limitation Act as it was in force prior to 31st of October, 2019 i.e. the date of commencement of the Jammu and Kashmir Re-organization Act, 2019. This issue was considered by this Court in case of Sarishta Devi v. Omkar Lal, 1981 KLJ 427, wherein, in the context of provisions of Section 34 of the Act of 1980 it was held by this Court that, in view of the provisions of Section 29 of the Jammu and Kashmir Limitation Act, particularly sub-section (1) thereof, the provisions of Sections 4 and 9 to 18 and Section 22 of the said Act were applicable to a suit, appeal or application for which any special or local law prescribes a period of limitation different from the period prescribed there for by the First Schedule. This issue has also drawn the attention of Hon‟ble the Supreme Court in N. Rajendran vs. S. Valli, 2022 SCC Online SC 157, wherein the points in issue raised by the learned counsel for the parties before 9 MA No. 40/2023 us have been elaborately considered, thrashed and authoritatively decided. The discussion made by Hon‟ble the Supreme Court in paragraph nos.20, 21, 22,and 23,deals with the point in issue and are reproduced thus: -
"20. This question as to whether the Limitation Act would apply to an appeal under the matrimonial laws is not res integra. No doubt, under the auspices of Section 28 of the Hindu Marriage Act, in the decision of this Court reported in Lata Kamat (supra), we need only notice the following paragraph:
"12.TheSchedule in the Limitation Act does not provide for an appeal, under the Hindu Marriage Act but it is only provided in sub-section (4) of Section 28 of the Hindu Marriage Act. Thus the limitation provided in sub-section (4) of Section 28 is different from the Schedule of the Limitation Act. Accordingly to sub-section (2) of Section 29, provisions contained in Sections 4 to 24 will be applicable unless they are not expressly excluded. It is clear that the provisions of the Act do not exclude operation of provisions of Sections 4 to 24 of the Limitation Act and therefore it could not be said that these provisions will not be applicable. It is therefore clear that to an appeal under Section 28 of the Hindu Marriage Act, provisions contained in Section 12 sub-section (2) will be applicable, therefore the time required for obtaining copies of the judgment will have to be excluded for computing the period of limitation for appeal. A Division Bench of Delhi High Court in Chandra Dev Chadha case held as under : (AIR pp. 24-25) The Hindu Marriage Act is a special law. That this "special law" prescribes" for an appeal a period of limitation" is also evident. The period of limitation is 30 days. It is a period different from that prescribed in the First Schedule to the Limitation Act, 1963. But when we turn to the First Schedule, we find there is no provision in the First Schedule for an appeal against the decree or order passed under the Hindu Marriage Act. Now it has been held that the test of a "prescription of a period of limitation different from the period prescribed by the First Schedule" as laid down in Section 29(2), Limitation Act, 1963 is satisfied even in a case where a difference between the special law and Limitation Act arose by omissions to provide for a limitation to a particular proceeding under the Limitation Act, see, Canara Bank, Bombay v. Warden Insurance Co. Ltd.
Bombay, AIR 19 Bom approved by the Supreme Court in Vidyacharan Shukla v. Khubchand.
Once the test is satisfied the provisions of Ss, 3, 4 to 24, Limitation Act, 1963 would at once apply to the special law. The result is that the court hearing the appeal from the decree or order passed under the Hindu Marriage Act would under Section 3 of the Limitation Act have power to dismiss the appeal if made after the period of limitation of 30 days 10 MA No. 40/2023 prescribed therefor by the special law. Similarly, under Section 5 for sufficient cause it will have the power to condone delay. Likewise, under Section 12(2) the time spent in obtaining a certified copy of the decree or order appealed from will be excluded. If it is so, Section 12(2) of the Limitation Act is attracted, and the appellants in all the three appeals will be entitled to exclude the time taken by them for obtaining certified copy of the decree and order. The appeals are, therefore, within time.
Similar is the view taken by the Calcutta High Court in Smt. Sipra Dey case and also the M.P. High Court in Kantibai case. It is therefore clear that the contention advanced by the learned counsel for the respondent on the basis of the Limitation Act also is of no substance."
21. We may also notice that this subject has engaged the High Court on a more elaborate basis. Apart from the decision of the Delhi High Court. This Court also noticed the judgment of the Division Bench of Calcutta High Court which has exhaustively considered the issue and the decision is reported in Sm. Sipra Dey v. Ajit Kumar Dey, AIR 1988 Calcutta 28. In the said case, the Court has given the rationale for the change that was brought about in the provisions of Section 29(3) in the Limitation Act, 1963.
22.The Legislature wished to extend the protection from the Limitation Act, as it were, in regard to the word „proceedings‟ in matrimonial matters to persons other than 9 those who were covered by the provisions of section 29(3) in the Limitation Act, 1908. Protection under Section 29(3) of the 1908 Act was available to those who are governed by the Indian Divorce Act. The rationale appears to be that by the very nature, matrimonial matters like Restitution of Conjugal Rights, Divorce, Guardianship, are matters for which it may not be appropriate to fix a period of limitation. It would not be in the interest of justice qua the parties and, therefore, not in the interest of society. It is this principle which was extended to cases, as for instance, to proceedings under the Special Marriage Act, where parties were governed by the Special Marriage Act, and the Parsi Marriage Act and any other law which related to matrimonial matters. But when it comes to providing for an appeal from the original proceedings, it is an entirely different proposition. It is in the interest of the parties and also the society at large that a period of limitation is fixed within which the verdict of the Court at the bottom of the judicial hierarchy is called in question. There must be certainty and certainty in point of time and it is viewed in this regard, that we must understand the meaning of the word "proceeding" in Section 29(3).
23. We have no difficulty in contemplating that shorn of the context provided in Section 29(3), and placed in a different setting, the word "proceeding" may embrace an appeal. However, 11 MA No. 40/2023 in the context of Section 29(3) and having regard to the history of the legislation, it is quite clear that the intent of the legislature was to take in proceedings before the original court by way of a petition as are contemplated in various provisions of the Hindu Marriage Act as for instance. Further we would notice that as was in fact correctly noticed by the Calcutta High Court in the judgment (supra), that in Sections 3,4,5,12,13,29, 30 & 31 of the Limitation Act, the expression „appeal‟ is expressly used. What is more apposite is in Section 29 itself, which is at the center of the controversy before us, Section 29(2) on the one hand, expressly uses the word „appeal‟, whereas when it comes to Section 29(3), the legislature has carefully chosen the word „proceedings‟. Going by the company, the word "proceedings" keeps, namely a suit, it in no uncertain terms indicates that what the legislature had in mind was original proceedings and not appellate proceedings. In fact, a learned Single Judge of the Kerala High Court had dealt with this issue in the judgment reported in Kuttimalu v. Subramonian, 1981 KLT 602 and his views on similar lines, stands approved by the full Bench of Kerala High Court in KunnarathYesoda v. Manathanath Narayanan, AIR 1985 Ker 220. It is relevant to notice the following paragraphs from the judgment of the full Bench of the Kerala High Court:
"16. The second contention relates to the meaning of the expression "other proceeding" in Section 29(3) of the Limitation Act. As has been rightly held in Kuttimalu v. Subramonian 1981 Ker LT 602 :
(AIR 1981 NOC 221) following Chander Dev v. Rani Bala, AIR 1979 Delhi 22, the statutory bar under Section 29(3) is limited to suits and other proceedings both of which are original in nature and not to appeals which belong to a distinct and separate category. We are in entire agreement with the reasoning and conclusion of Balagangadharan Nair, J. in 1981 Ker LT 602 : (AIR 1981 NOC 221).
17. The contention therefore that the appeal under the Hindu Marriage Act against a decree for divorce should be filed within 30 days of the date of the decree, whether a certified copy has been obtained or not and even if the appellate Court closes after the decree has been passed or order 10 has been made and remain so closed for over 30 days therefrom cannot be accepted. Section 15 of the Hindu Marriage Act only declares that it shall be lawful for either party to the marriage to marry again under certain circumstances.
From this it does not follow that a right to remarry enures automatically after the expiry of 30 days from the date of the decree of divorce. If an appeal is presented, one will have to wait till it is dismissed. If there is a right of appeal, the time for filing the appeal should have expired without the appeal being filed, 12 MA No. 40/2023 taking into consideration the time required for obtaining the certified copy. The period for filing the appeal does not expire if once the delay in filing the appeal is condoned. The computation of time under Section 10 of the General Clauses Act, 1897 when the court or office is closed also extends the time beyond 30 days. Thus Section 15, on its face, indicates that it is not the legislative intention that a right to remarry arises exactly after 30 days of the decree of divorce.
18. Reliance was placed on Section 23(4) of the Hindu Marriage Act which provides: --
"In every case where a marriage is dissolved by a decree of divorce the court passing the decree shall give a copy thereof free of cost to each of the parties."
The contention was advanced that an applicant was entitled to a copy free of cost and therefore the time taken to obtain a certified copy cannot be excluded. Our attention was also drawn to Section 363(1) of the Criminal Procedure Code under which: --
"When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost". Section 15 of the Hindu Marriage Act only enables the applicant to obtain a copy free of cost; but does not statutorily prescribe the time during which the copy has to be delivered. Section 23(4) does not advance the contention of the appellant that the time required to obtain the certified copy cannot be excluded."
[underlined to supply emphasis]
17. From reading of the aforesaid paragraphs of the judgment of Hon‟ble the Supreme Court reproduced herein above, it is abundantly demonstrated that the view which we have taken on the reading of relevant provisions of the Family Courts Act and the Limitation Act, is fortified by the judgment of Hon‟ble the Supreme Court. As is clearly laid down by the Supreme Court that Family Courts Act is not a standalone Act and, therefore, must be read along with cognate enactments like the Hindu Marriage Act. A Family Court shall deal with a petition for dissolution of marriage only on the grounds 13 MA No. 40/2023 provided under the Hindu Marriage Act. It is true that under Section 28 of the Hindu Marriage Act, the Court passing a decree of divorce is under an obligation to give a copy thereof free of cost to each of the parties. However, no satisfactory time is prescribed for providing such copy. As is evident from the facts of the instant case, no such copy of the decree was ever provided to the appellant free of cost by the Family Court rather the appellant had to apply for a certified copy of the judgment and decree. Otherwise also, the order of the Family Court passed in whatever proceedings including the proceedings under Section 13 of the Hindu Marriage Act, would be a judgment though the same shall have same force and effect as a decree or order of the Civil Court and executable in the same manner as prescribed in the Code of Civil Procedure. Section 17 and 18 of the Family Courts Act are relevant provisions in this regard and are, therefore, set out herein below: -
"17. Judgment. --Judgment of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision.
18. Execution of decrees and orders. -- (1) A decree or an order [other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], passed by a Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders. (2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code.
(3) A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary civil court to which it is sent for execution."
18. From the reading of Sections 17 and 18 together, it becomes abundantly clear that the judgment granting divorce to the parties to marriage by the Family Court is a judgment and not a decree in stricto senso. It is only by 14 MA No. 40/2023 operation of Section 18 and with a view to provide execution of such judgment of the Family Court, the judgment and order passed by a Family Court is treated to be a decree or order of the Civil Court, to be executed in the manner provided in the Code of Civil Procedure. Section 17 does not provide that a decree shall follow the judgment of the Family Court. To the similar effect are the provisions of Section 19, which we have already reproduced herein above. Sub-section (1) of Section 19 clearly prescribes that an appeal shall lie from judgment or order (not being an interlocutory order) of the Family Court to the High Court bothon facts and law. Though in some of the provisions of the Family Courts Act there is reference to a decree passed by the Family Court with the consent of parties. That apart, the Jammu and Kashmir High Court Rules also mandate the filing of certified copy of the judgement and decree appealed from along with memo of appeal.
19. Viewed thus, it cannot be argued that since under Section 28 of the Act of 1980, parties to the marriage, which stands dissolved by a decree of divorce, are entitled to copy of the decree free of cost from the Court, as such, Section 12 is not invocable, for no certified copy of the decree would be required to file an appeal. We are saying so because what is provided, free of cost to the parties whose marriage is dissolved by a decree of divorce, is only a free copy of the decree and not a copy of the judgment. About any statutory time prescribed for providing such a free copy, if the Court delays in delivering free copy of decree, the party aggrieved will not be able to avail the 30 days‟ time prescribed for filing appeal and would be put to serious prejudice.The party aggrieved may not be in a position to file the appeal under Section 19 of the Act unless a certified copy of the judgment, to be challenged in appeal, becomes available to him/her.
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20. Viewed from any angle, the contentions raised by Mr. Mishra, learned counsel for the respondent, do not carry any weight and, therefore, must be rejected. Not only Section 12 is attracted in the instant case and the appellant is entitled to the exclusion of time spent in obtaining certified copy for computation of limitation but even Section 5 of the Limitation Act (Central), which is now applicable, would apply to the appeal in question. We are aware that for seeking condonation of delay, a party seeking to file an appeal beyond limitation must show sufficient cause by pleading the same either in the memorandum of appeal or in a separate application filed for the purpose. In the instant case separate application under Section 5 has not been filed. If we were to agree with the contention of Mr. Mishra, the appeal is delayed by one day. The fact that certified copy of the judgment or decree was not provided to the appellant free of cost by the trial Court passing the decree of divorce, would itself constitute sufficient cause for causing delay. This submission of Mr. Mishra has been dealt with by us only in the alternative and without prejudice to what we have held herein above.
21. For the foregoing reasons and in the light of discussion made above, our answer to the questions is as under:
(i) An appeal against a judgment and decree of dissolution of marriage between parties under Section 13 of the J&K Hindu Marriage Act, 1980, shall be governed by Section 19 of the Family Courts Act, 1984, and not under Section 34 of the Act of 1980 for the reason that Section 20 of the Act of 1984 has been given overriding effect over inconsistent provisions contained in any other law for the time being in force. The position of law shall not be different even if appeal is against a judgement and decree passed by the court under Section 13 16 MA No. 40/2023 of the Hindu Marriage Act, 1955, which is now applicable to Union Territory of Jammu and Kashmir with effect from 31.10.2019.
(ii) The answer to question No.(iii) given below is precisely the answer to this question as well. By virtue of Section 29 of the Limitation Act, an appeal under Section 19 of the Act of 1984 after expiry of 30 days limitation is entertainable. Time spent in obtaining certified copy of judgement of divorce is liable to be excluded in terms of Section 12 of Limitation Act. However, under J&K Limitation Act, 1938, condonation of delay under Section 5 of Limitation Act would not be available, though it is available under the Limitation Act, 1963, which is now applicable to Union Territory of J&K. This is because of difference of language of two sections, i.e., Section 29 of J&K Limitation Act and the Limitation Act, 1963.
(iii) Notwithstanding that Section 20 of the Act of 1984 gives overriding effect to the inconsistent provision, if any, contained in any other law for the time being in force, the Limitation Act to the extent it is provided in Section 29 thereof would apply to appeals under Section 19 of the Act of 1984. There is no explicit or implicit inconsistency or contradiction between the provisions of the two legislations. The bar created by Subsection (3) of Section 29 applies to original petitions and applications filed before Family Court in relation to marriage and divorce and does not extend to appeals preferable before High Court under Section 19 of the Act of 1984.
22. For the reasons stated above, we find no merit in the objection raised by Mr. Ashok Mishra, learned counsel appearing for the respondent, to the 17 MA No. 40/2023 maintainability of the appeal on the ground of limitation. The appeal is within time and is treated as such.
23. Admit. Notice waived by Mr. Ashok Mishra, learned counsel appearing for the respondent.
24. Send for the record of the trial Court.
25. List on 03-04-2024.
26. In the meanwhile, operation of the judgment and decree impugned shall remain stayed.
( Puneet Gupta) (Sanjeev Kumar)
Judge Judge
JAMMU
21.02.2024
Anil Raina, Addl. Registrar/Secy
Whether the order is reportable: Yes