Allahabad High Court
Deep Mala Sharma vs Mahesh Sharma on 28 November, 1991
Equivalent citations: I(1992)DMC374
JUDGMENT B.L. Yadav, J.
1. The defendant-appellant, has filed the present First Appeal under Section 19 of the Family Courts Act, 1984, against the judgment and order dated 18.5 90 passed by the Judge, Family Court, Jhansi in Misc. CaseNo. 25/89 rejecting her restoration application along with an application under Section 5 of the Limitation Act 1963 (for short the Act) under Article 123 of the Act the period of limitation to set aside an ex-parte decree was 30 days from the date of decree, or where summons or notice was not duly served, when the applicant had knowledge of the decree. The application for restoration was filed by the appellant (the wife) against the ex-parte decree dated 30.5.89 passed by the Family Court in Matrimonial case No. 65 of 1988 (Mahesh Sharma v. Smt. Deep Mala Sharma) under Section 13 of the Hindu Marriage Act, 1955, granting ex-parte decree for divorce in favour of the respondent (the husband) This restoration application was filed under order 9 rule 13 of the Code of Civil Procedure 1908 (for short the Code).
2. The material facts which are almost admitted, may be stated. A petition for divorce was filed by the respondent (the husband) against the appellant, (the wife) under Section 13 of the Hindu Marriage Act, 1955, which was decreed ex-parte on 30.5.89 without any knowledge of the appellant, the wife. It was averred in the restoration application supported by a Medical Certificate of the Doctor, filed by the defendant that she fell ill on 1.3.89 and recovered on 28 3 89. Unfortunately on 29th March, 1989 her younger sister Ku. Kamla died and the appellant plunged in grief and sorrow. She came to know of the ex-parte decree on 16 2.89 when the parties appeared in another suit filed by the appellant, the wife with the relief for the restitution of conjugal rights in a Family Court at Gwalior. Notices were served on Mahesh Sharma, the respondent-husband and be was directed that he may get the suit for restitution of conjugal rights decided on the basis of conciliation. After disposal of suit for restitution of conjugal rights, the petition for divorce at Jhansi was to be decided in which 3.3.89 was the date fixed for disposal of application filed by the appellant for awarding her some amount in connection with the expenses of litigation. Under these circumstances it was averred that 30 days Limitation under Article 123 of the Act was to be counted from 15.9.89 when she was informed about the ex-parte decree in the divorce suit in the case of restitution of conjugal rights pending in the Family Court at Gwalior. She prayed that under these pressing circumstances the delay in filing the restoration application may be condoned and the same may be allowed and ex pane decree may be set aside. That application, however, has been rejected by the impugned order.
3. The respondent-husband contested the restoration application stating that appellant has got knowledge much earlier, and in any case, even after the death of her younger sister on 29,3.89, within 13 days the ritual ceremony amongst Hindus is over and thereafter she need and could not be in grief or sorrow, hence could have filed the restoration application immediately after 13th day. The Court below has rejected the restoration application and the averments contained therein was disbelieved and held the application to be time barred. Hence the present appeal has been filed.
4. Sri Harish Kumar Sharma, learned. Counsel for the appellant strenuously urged that the provisions of Limitation Act, 1963 were applicable and the restoration application was well within time, under Article 123 of the Act, from the date of knowledge. The application under Section 5 of the Act has to be considered with a view to advance substantial justice. The Hindu Marriage Act and the Family Court's Act were legislation of predominant social nature and it may be interpreted in that light so as to advance the object of legislation. Strong reliance was placed in Kerala State Electricity Board v. T.P. Kunhaliaumma (AIR 1977 SC 282) to the effect that whereever a petition was filed under any Act before the Civil Court and it was pending, the provisions of the Act would apply.
5. Sri A.S. Diwakar, learned Counsel for the respondents, on the other hand, ugred that the Limitation Act was not applicable, the delay was not explained hence application Under Section 5 was correctly rejected and similarly restoration application was also correctly rejected. Reliance was placed on Lata Kamatv. Vilas, judgments Today 1989 (3) Supreme Court 48 (AIR 1989 SC 1427), where under Section 28(4) of the Hindu Marriage Act the limitation was 30 days for preferring appeal and the schedule under the Limitation Act did not provide for period of appeal under the Hindu Marriage Act. In view of Section 29(2) of the Limitation Act, the provisions of Sees. 4 to 24 of the Act will be applicable unless they are not expressly excluded.
6. Having heard the learned Counsel for the parties, the points that fall for our determination are as to what ought to be the approach of a Court in deciding the matter arising out of statute predominantly dealing with matters pertaining to social and benevolent character, and whether the Limitation Act was applicable to the proceedings under the Family Courts Act and lastly as to whether under the facts and circumstances of the case the restoration application filed by the appellant could be treated to be within time and the delay could be deemed to have been explained.
7. As regards the first point, suffice it to say that there is no denying the fact that the approach of a Court to a statute of predominant social nature has to be made in that light and the Court has to take a broader view of the background and policy of the statute in question (See Summers v, Seaford Corporation (1943) A.C. 283 : Brown v. Brash & Ambrose, (1 48) 1 AH. E.R. 922 : Okerake v. Brant London Borogh Council (1967) I DB 42). The objects of legislation particularly the object Hindu Marriage Act and the Family Courts Act have to be kept in mind. In Otherath Lakshmi Amma & Another v. Nella Chinkuniyll Govindan Naiyer, Judgment Today (1990) 3 SCC 230, it was held that in case a statute contains social and benevolent provisions, the Court has to take precaution in deciding such matters and the dominant purpose of the statute, intention of legislature and the policy underlying such statute has to be considered while construing the provisions.
8. In Amirthan Kudanban v. Sarnam Kudanban (1991) 3 SCC 20, it was held in connection with Sections 8(3) 5(a) and 5 of the Hindu Minority and Guardianship Act, 1956 that the statute pertaining to social and beneficial matters containing benevolent provisions should not be construed too rigidly as the same is for protection of certain class of persons. In the present case the provisions of Family Courts act and Hindu Marriage Act are predominantly of social nature. The Family Courts were established with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and the greater emphasis was on conciliation and achieving social and desirable results and adherence to rigid rule of procedure or evidence were to be eliminated. The Family Courts established under the Act ought to adopt an approach different from that adopted in ordinary civil proceedings. In the present case we are constrained to observe that the Judge Family Court has made a pedentic approach as is some times made in ordinary civil proceedings, whereas the Judge Family Court was dealing with the matter predominantly of social character and he should not have made a rigid approach rather he must have taken a broader view of the background and policy underlying the statute. He must not have forgotten the intention of legislature.
9. As regards the second point as to whether the provisions of Limitation Act were applicable, under Section 10 of the Family Court's Act it has been provided that subject to other provisions of the Act and Rules the provisions of the Code of Civil procedure, 1908 and "of any other law for the time being in force" shall apply to suits and proceedings before a Family Court (other than proceedings under chapter IX of the Code of Criminal Procedure, 1973) and for the purposes of such provisions of the code, the Family Court shall be deemed to be a civil Court and shall have all the powers of such Court. The Limitation Act, particularly Section 5 thereof provides that when sufficient cause has been shown the delay in preferring appeal or application can be condoned. The provisions of the Code of Civil Procedure and "of any other law for the time being in force" have been made applicable to the suits and proceedings before a Judge Family Court which has been declared to be deemed to be a civil Court having all the powers of such Court. The expression "of any other law for the time being in force" under Section 10 of the Family Courts Act is comprehensive enough to include the provisions of Limitation Act, 1963 to be made applicable to proceedings under the Family Courts Act.
There would be no justification in restricting the meaning of the expression of any other law for the time being in force", which is couched in a language having a very wide sweep. The provisions of a statute dealing with social and beneficient provisions should not be interpreted in a rigid manner, rather a broader view must be taken consistent with the object of legislation. The object and reasons of the establishment of Family Courts were to emphasise conciliation and achieving the socially desirable results and adherence to rigid rules of procedure and evidence were to be eliminated. In case the provisions of Section 5 of the Limitation Act were not made applicable, there might be so many cases where, particularly in a country like ours, where a sizable Section of society suffers from illiteracy, it would not be proper to adjudicate matters pertaining to marriage, restitution of conjugal rights and maintenance and divorce etc. without providing some opportunity to file an application or appeal beyond the period of limitation of 30 days, by taking a rigid view of limitation, rather there may be bonafide lack of knowledge or compelling circumstances like illness, death of a family member and similar other matters on account of which any person may be prevented from preferring appeal or any application within the prescribed period.
10. Smt. Lata Kamal v. Vilas, (supra), relied upon by Sri A.S. Diwakar, learned Counsel for the respondent, was a case where the provisions of limitation Act were made applicable, and it was held under para 12 (page 1484) as follows:
"The schedule in the limitation Act does not provide for an appeal, under the Hindu Marriage Act but it is only provided in clause (4) of Section 28 of the Hindu Marriage Act. Thus the limitation provided in clause (4) of Section 28 is different from the Schedule of the Limitation Act. According to clause (2) of Section 29, provisions contained in Sections 4 to 24 will be applicable unless they are not excluded expressly. 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 clause (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".
11. In our opinion, therefore, it could not be said that these provisions of the Limitation Act shall not be applicable, rather in our considered opinion the provisions of Sections 4 to 24 of the Limitation Act would be applicable to Hindu Marriage Act. The case relied upon by learned Counsel for the respondent (Smt, Lata Kamat v. Vilas (supra) is of no assistance in support of his submissions.
12. As regards the last point we have perused the restoration application and affidavit filed in support of the same. As the appellant fell ill on 1.3.89 and she recovered on 28.3.89 (her averements about illness were supported by medical certificate), and immediately thereafter her younger sister died on 29.3.89 and her entire family including the appellant herself plunged into grief and sorrow, she forgot about litigation and no other family member could recollect about the proceedings in the Court of Jhansi. The appellant has financial constraint also. Only on 15.9.89, the date fixed in a case for restitution of conjugal rights filed by her at Gwalior, she was informed by the respondent that he has been successful in obtaining ex-parte decree and a copy of order was furnished to her. She again fell ill on account of shock for the petition of divorce having been, decreed ex-parte, and when she recovered from illness on 20.9.89, she came to Jhansi and applied for a copy of the order and after perusing the order sheet etc. she knew about the details of the order passed in the divorce petition. Under these circumstances she filed restoration application accompanied by an affidavit within 30 days from the date of knowledge under Article 123. The Judge, Family Court has made a pedantic approach in rejecting the explanation furnished by her, the statement of fact pertaining to her illness and death of her younger sister was supported by medical certificate and death certificate (9 Ga and 10 Ga respectively). The medical certificate has been disbelieved holding that the same was not accompanied by any prescription recommended by the Doctor. The learned Judge Family Court appears to have adopted a very unique procedure in disbelieving the medical certificate on the ground that the same was not accompanied by prescription of the Doctor. It is very rare that any medical certificate is accompanied by a prescription. The learned Judge appears to have made a very rigid approach in disposing of the application for restoration and the application for condonation of delay under Section 5 of the Limitation Act. Again about the delay pertaining to death of the younger sister of the appellant the learned Judge has made observation that in the Indian Society after completion of 13th day of ritual ceremony the sorrow on account of death must be deemed to have been over and immediately thereafter she should have made the restoration application. The reasons adopted by the learned Judge appear to be devoid of practical reality and human considerations. There can be no limitation for a person being in grief and sorrow. It depends upon the psychology and mental horizon. The same cannot be judged with mathematical accuracy, nor it can be measured with the yardstick of geometrical progression. The learned Judge of the Family Court was not deciding the restoration application as if it was a proceeding having nothing to do with socail problem or beneficial legislation. He must have been cautious about the various provisions and its nature under the Family Courts Act.
13. In Arjun Khiamal Mukhijani v. JC Tuliani (1989) Judgments Today (4) Supreme Court P. 74, it was held that if provisions of beneficial provisions, efforts should be made to interpret in that light. The learned Judge Family Court appears to have made sentimental approach against the interest of the appellant, the lady justifying the cynical proverb "Heed I win the teil youlose". Under the circumstances, we are of the opinion that the delay in filing restoration application has satisfactorily been explained inasmuch as she has filed medical certificate in support of the averments about her illness and the prescription was not required to be filed,
14. The psychology of a lady in the Indian Society, where she herself has filed a suit for restitution of conjugal rights at Gwalior and she is pursuing that remedy and another petition for divorce has been filed against her in the Family Court at Jhansi and she herself is pursuing the proceedings for expenses of litigation etc. Under such circumstances if she falls ill and her younger sister dies, her mental psychology and incapacity on account of her illness and explanation of grief and sorrow on account of death of her younger sister cannot be measured or judged by applying mathematical or geometrical yardsticks. The explanation furnished by her was sufficient for condonation of delay. It is to be remembered that the provisions of Section 5 of the Limitation Act and the cause for delay has to be appreciated and interpreted in a justice oriented way and not in a pedentic manner. The learned Judge of the Family Court appears to have made mathematical approach for the explanation of every days' delay.
15. In G Ram Gowds v. Special Land Acquisition Officer Bangalore, (AIR 1988 SC 897) the contours of areas of discretion of the Courts in the matters of condonation of delay under Section 5 of the Limitation Act was pointed out. The Section 5 has to be interpreted in a justice oriented way and technical approach of some Courts was to be avoided.
16. In Collector of Land Acquisition v. Kantiji (AIR 1987 SC 1353) it was pointed out that in case every days' delay is supposed to be material for condonation of delay then why not to insist on every hour delay or every minutes delay to be explained. Thereafter some Courts may insist on every second of delay and thereafter of every moment. Under these circumstances, we are constrained to say that the learned Judge, Family Court must have not made pedentic and mathematical approrch in requiring explanation or every days' delay from the appellant, the wife. In fact in our opinion where substantial justice and techincal are fitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. A lady who fell ill and after she recovered from illness her younger sister died, under these circumstances the delay in filing restoration application has sufficiently been explained. We accordingly condone the delay and treat the restoration application filed by the appellant wife to be within time. After persual of the same we are satisfied that a case for restoration has been made out. The restoration application is accordingly allowed and the ex-parte decree and order dated 30.5.1989 is set aside.
17. In view of the premises aforesaid and applying the Aristoralian and Badinian reasonings, we are of the opinion that the present appeal deserves to be allowed. We, consequently, allow the same and set aside the impugned judgment order dated 18.5.90. The delay in filing the restoration application is condoned and the restoration application is allowed and the ex-parte decree decreeing the petition for divorce dated 30.5 89 is set aside and the petition for divorce is restored to its original number. The matter has dragged on for too long. What is required is expedition. The Judge, Family Court is directed to make sincere efforts for conciliation between the parties and in any case dispose of the petition within a period of three months from the date a certified copy of this order is furnished before, him. There shall, however, be no order as to costs.