Chattisgarh High Court
Preeti Meshram vs Himanshu Wasnik 20 Cra/825/2009 ... on 30 September, 2019
Author: Rajani Dubey
Bench: Rajani Dubey
-1-
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 53 of 2019
Preeti Meshram, Aged About 30 Years C/o Shri Vishnu Meshram, R/o
Sehdev Nagar, Tehsil And District Rajnandgaon, Chhattisgarh., District :
Rajnandgaon, Chhattisgarh
---- Appellant
Versus
Himanshu Wasnik S/o Shri Vivek Wasnik Aged About 31 Years R/o
Bharkapara, Near To Kamal Takies, Ward No. 26 Tehsil And District-
Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh
---- Respondent
For Appellants : Shri Kishore Bhaduri and Shri Pushkar Sinha, Advocates For Respondent : Shri Shishir Dixit, Advocate D.B. :Hon'ble Mr. Justice Manindra Mohan Shrivastava & Hon'ble Mrs. Justice Rajani Dubey CAV Order On Application for Condonation of Delay in Filing the Appeal 30/09/2019
1. In this appeal, arising out of judgment and decree dated 25.10.2018 passed by learned Family Court, Rajnandgaon, on a suit/application for grant of decree of divorce filed by the husband against his wife, upon office objection that the appeal is barred by 17 days, though an application for condonation of delay, if any, in filing appeal has been filed, learned counsel appearing for the appellant would argue that in the matter of appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as "HM Act"), the provision relating to limitation for filing of appeal, as provided under Section 28 (4), as amended, would govern period of limitation, which is 90 days. He would argue that notwithstanding provision contained in Section 19 (3) of the Family Courts Act, 1985 (hereinafter referred to as "FC -2- Act") which is a later general law, the provision contained in earlier special law i.e. Hindu Marriage Act, 1955 would prevail. It is the contention of learned counsel for the appellant that the substantive right of appeal provided under Section 28 (4) of the HM Act is an essential component of special enactment. According to him, provision relating to limitation for filing of appeal against judgment or order of the Family Court, as provided under Section 19 (3) of the FC Act, would be applicable in those cases where there are no special laws providing for an appeal against an order passed by the Family Court. He would further argue that the FC Act is not an enactment dealing with any particular personal law but it is a neutral law dealing with establishment and functioning of Family Courts. He would submit that the Full Bench of Bombay High Court and Division Bench of Allahabad High Court have taken the view that in view of subsequent amendment carried out in the year 2003 in HM Act, pursuant to judicial direction of the Supreme Court, the provision relating to limitation of filing appeal against judgment and decree or an order of Family Court as provided in Section 28 (4) of the HM Act would be applicable and not the general provision with regard to appeal as provided under Section 19 (3) of the FC Act.
2. On the other hand, learned counsel for the respondent, would submit that even though, FC Act 1984 is a subsequent enactment, it is a self- contained code dealing with establishment of Family Courts providing special procedure, diluting rigors of technical laws of procedure, recording of evidence and collection of evidence and also containing special provision to encourage settlement of disputes by making it obligatory on the Court to first make efforts for settlement and it is only in the event that settlement fails that the Court would adjudicate upon the dispute. He would further submit that the FC Act is a progressive legislation and contains special provision with regard to appeal against the order passed by the Family Courts. It not only provides for period of limitation but also clearly lays down with overriding effect, the forum where the appeal would lie and also constitution of the Bench competent to hear such appeals. Giving overriding effect under Section 20 of the FC Act, it is contended, in so far as provision relating to appeal as contained in HM Act or any other special enactment dealing with personal laws are overridden by special provision -3- relating to appeal and other incidental provisions, as laid down in Section 19 of the FC Act. He would also submit that amendment carried out in Section 28 (4) of the HM Act, by enhancing period of limitation would not, by itself, incorporate parallel amendment under Section 19 (3) of the FC Act and as long as provision contained in Section 19 (3) of the FC Act exists and is not amended, the provision of limitation as contained in Section 19 (3) of the FC Act would be applicable as provision relating to period of limitation prescribed in Section 28 (4) of the HM Act, being inconsistent, to that extent, would be ineffective redundant and overridden.
3. Relevant provision of the FC Act which provides period of limitation for filing appeal is extracted as below:
"19. Appeal-
x x x (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."
On the other hand, relevant provision contained in HM Act providing for limitation for filing appeal is extracted herein below:-
"28 Appeals from decrees and orders-
x x x (4) Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order."
4. The question which arise for consideration before this Court is as to which of the two provision relating to prescription of period of limitation for filing appeal against orders and judgment of the Family Court would be applicable.
5. The Hindu Marriage Act, 1955, is an Act to amend and codify the law relating to marriages amongst Hindus. Prior to enactment of the HM Act, 1955, several legislations dealing with marriages amongst Hindus, various aspects thereof were enacted from time to time, one of the earliest law being Abolition of Sati custom by law, followed by Hindu Widows' Re-
-4-marriage Act 1856, Prohibition of polygamy and many of the legislations dealing with Anand Marriage, Aarya Marriage etc. The HM Act, 1955 deals especially with laws of marriage amongst Hindus. It contains provision as to marriages and also when a marriage amongst Hindus would be void and when it would be voidable. There are provisions with regard to legitimacy of children of void and voidable marriages. The Act also contains provision relating to punishment of bigamy and also for contravention of certain other conditions for Hindu marriage. It also contains provisions regulating divorce. It also contains provision relating to grant of maintenance pendente lite expenses of proceedings and permanent alimony and maintenance. The Act also deals with custody of children, and disposal of property. Sections 19 to 28 of the HM Act, 1955 deals with jurisdiction and procedure. These special provisions provide for the Court to which petition would be presented, contents and verification of the petitions, special provision relating to trial and disposal of petitions under the Act, documentary evidence, provision for holding proceedings in camera and also provision with regard to appeal from decree or orders. Section 28 of the HM Act deals with appeals from decree and orders which being relevant is extracted hereinbelow:-
"28 Appeals from decrees and orders- (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub- section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-
section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
-5-(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order."
6. Thus, the HM Act of 1955, being a legislation of the nature of consolidating and amending act, comprehensively and exhaustively dealing with a particular branch/aspect of personal law of Hindu, is a self contained code of special nature and is certainly a Special Act.
7. The FC Act 1984 was enacted to provide for the establishment of Family Court with a view to promote conciliation in and secure speedy settlement of dispute relating to marriages and family affairs and for matters connected therewith. It contain provisions with regard to establishment of Family Courts and also lays down specific provision relating to appointment of judges and their qualifications for appointment as such. Special provision in the matter of selecting person for appointment as Judges of Family Courts have also been made. The Family Courts Act is a comprehensive legislation which aims at radicalizing the procedural laws of adjudicatory process simplifying and diluting the rigor of technicality of procedure, collection of evidence. One of the prominent feature of the Family Courts Act is introduction of a mandatory provision contained in Section 9, imposing duty on the Family Court to make all endeavor and efforts to bring about settlement of the dispute to protect and preserve the institution of marriage. The Act mandates such settlement, efforts to be carried out as the first recourse and adjudication as last resort.
Not only this, to assist Family Court in discharge of its duties and function in deciding the dispute and to better equip such Family Courts to deal with sensitive and intricate dispute of family, it contains provision with regard to association of social welfare agency and appointment of counsellor as such and other employees required to assist Family Court in discharge of its function. It also restricts right to legal representation. Section 20 of the Act gives overriding effect. Section 19 of the Act deals with provision relating to appeals and revision. It being relevant, is extracted below :-
"19. Appeal.- (1) Save as provided in sub-section (2) -6- 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].
(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 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."
-7-8. It needs to be noticed that the Family Courts Act, 1984 does not deal with personal laws but only seeks to establish regime of Family Courts with certain special provision relating to appointment of Judges, jurisdiction and procedure. Irrespective of any personal law of any religion, the Family Court Act governs adjudication of disputes which fall within its jurisdiction as provided under Section 7 thereof.
9. Thus, upon examination of two enactments, it is clearly discernible that while Hindu Marriage Act, 1955 is special law dealing with a particular aspect of marriages amongst Hindus, the Family Courts Act, 1984 is a neutral law applicable irrespective of any personal law and one can say that Hindu Marriage Act, as compared to Family Courts Act, is more special in nature.
Further more, it is also evidently clear that both the legislations operate in different field. While the Hindu Marriage Act especially deals with rights and obligations arising out of and in connection with marriages amongst Hindus, the Family Courts Act, is in the nature of progressive legislation of general application, aimed at establishing Family Courts having jurisdiction of wide amplitude as provided under Section 7 of the Act and does not deal with substantive right and obligation arising out of marriage or other aspect of any personal law.
10.It is also relevant to note that both the Act contain overriding clause. While Section 4 of the Hindu Marriage Act, 1955 gives it an overriding effect, Family Courts Act, 1984 contains overriding clause under Section 20 of the Act. The overriding clauses, one contained in HM Act and the other in FC Act, are reproduced hereinbelow:-
" The Hindu Marriage Act, 1955
4. Overriding effect of Act.- Save as otherwise expressly provided in this Act-
(a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
-8-(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
The Family Courts Act, 1984
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.However, both the Acts contain provision with regard to appeals. While Section 28 of the HM Act provides for appeal against decree made by the Court in any proceeding under the said act providing that appeal shall lie to the Court to which appeals ordinarily lie from the decision of the Court given in exercise of its original jurisdiction, as provided in sub-section (1) in Section 28 thereof, sub-section (1) of Section 19 of the FC Act beginning with a non-obstante clause, provides that 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. Reading of the non-obstante clause reveals that overriding effect has been given notwithstanding anything contained in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973 or in any other law, indicative of it being sweeping in nature.
While there is no such explanation in Section 28 of the HM Act, sub-Section (2) of Section 19 of the FC Act carves out exception where no appeal shall lie or 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.
On further comparison, a clear inconsistency arises when Section 28 (4) of the HM Act, as amended in the year 2003, provides that the period of limitation in filing appeal would be 90 days from the date of decree or order, a restrictive provision is contained in sub-section (3) of Section 19 of -9- the FC Act that the appeal shall be preferred within a period of 30 days from the date of the judgment or order of the Family Court.
12.Another striking feature of Section 19 of the FC Act which does not find place in the HM Act is that Section 19 (4) of the FC Act confers supervisory /revisional jurisdiction upon the High Court.
There is special provision contained in Section 19 (6) of the FC Act that appeal shall be heard by a Bench consisting of two or more Judges.
13.Comparison of the provisions contained in the two enactments, dealing with appeal to higher Courts, clearly gives rise to certain conflicts, which have been noted as above. It is also worth-noticing that provision contained in sub-Section (1) of Section 19 of the FC Act opens with a non- obstante clause.
14.For our purposes, it is the conflict with regard to prescription of period of limitation which needs to be resolved, in the background that one is earlier special law and the other is general later law, both containing overriding clauses.
15.The principles applicable for resolution in the event of conflict between earlier special law and subsequent general law, have been elaborately clarified by the Apex Court in plethora of its decisions. In the case of Sanwarmal Kejriwal Vs. Vishwa Cooperative Housing Society Ltd. and Ors. (1990) 2 SCC 288, while examining and resolving conflict between the provisions contained in two enactments, one relating to eviction and other dealing with cooperative societies and noticing conflicting provision vesting jurisdiction under two different laws opening with a non-obstante clause and investing jurisdiction in different Courts, it was held :
"21. But what happens when competing provisions vesting jurisdiction under different laws open with a non-obstante clause and invest jurisdiction in different Courts? The Societies Act under Section 91(1) confers jurisdiction on the Cooperative Court while Section 28 of the Rent Act confers jurisdiction on the Court of Small Causes, Bombay. This Court observed in Deccan Merchants Cooperative Bank, -10- Limited v. Dali Chand Jugraj Jain, [1969] 1 SCR 887 that 'the two Acts can be harmonised best by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply'. This view was approved in Bhatnagar's case also. In Co-operative Central Bank, Ltd. v. Additional Industrial Tribunal, Andhra Pra- desh, [1970] 1 SCR 205 also this Court was required to harmonise the competing provisions in Section 61 of the A.P. Co-operative Societies Act, which is substantially the same as Section 91(1) of the Societies Act, and Section 10(1)(d) of the Industrial Disputes Act. This Court applying the test laid down in Deccan Merchants Co-operative Bank's case held that a dispute relating to the service condition of an employee of the society would properly be governed by the Industrial Disputes Act.
22. It was, however, submitted by the learned counsel for the society that the earlier enactment i.e. the Rent Act must yield to the later Act, i.e. the Societies Act, if the competing provisions of the two cannot be reconciled--lex posterior derogate priori. But the Rent Act is special law extending protection to tenants, just as the Industrial Disputes Act which makes provision for the benefit of the workmen. Ordinarily, therefore, a general provision, a dispute touching the business of the society, would have to give way to the special provision in the Rent Act on the maxim generalia specialibus non derogant. ".....
16.In the case of R.S. Raghunath Vs.State of Karnataka & Anr. 1992 (1) SCC 335, the principles was explained as below:-
"7.........But it has to be noted at this stage that we are concerned with the enforceability of special law on the subject in spite of the general law. In -11- Maxwell on the Interpretation of Statutes, Eleventh Edition at page 168, this principle of law is stated as under:
"A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words,"
where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act."
In Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey and ors. ,AIR 1966 S.C. 1931, applying this principle it is held that general law does not abrogate earlier special law by mere implication. In Eileen Louise Nicoole v. John Winter Nicolle, [1992] 1 AC 284, Lord Phillimore observed as under:
"It is no doubt a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and covering a number of cases of which the particular law is but one. This as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute... or be the underlying common or customary law of the -12- country.
....'Where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation... that earlier and special legislation is not to be held indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so."
In Justiniane Augusto De Piedade Barreto v. Antonio Vicente Da Fortseca and others etc., [1979] 3 SCC 47, this Court observed that a law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be classified as a special law. Therefore unless the special law is abrogated by express repeal or by making provisions which are wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication."
In the case of Jay Engineering Works Ltd. Vs. Industry Facilitation Council & Anr.(2006) 8 SCC 677, basic rules of harmonious construction were discussed in the background that the Acts under consideration were held operating in different fields and also containing non-obstante clause, as below:
"25. In Allahabad Bank v. Canara Bank and Another [(2000) 4 SCC 406], this Court held :
"39. There can be a situation in law where the same statute is treated as a special statute vis- a-vis one legislation and again as a general statute vis-a-vis yet another legislation"
28. Both the Acts contain non-obstante clauses.
Ordinary rule of construction is that where there are two non-obstante clauses, the latter shall prevail. But it is equally well-settled that ultimate conclusion thereupon would depend upon the -13- limited context of the statute. [See Allahabad Bank (supra) para 34].
30. In Sarwan Singh and Another v. Shri Kasturi Lal [(1977) 1 SCC 750], this Court opined :
"When two or more laws operate in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration"
31. The endeavour of the court would, however, always be to adopt a rule of harmonious construction."
17.In another decision in the case of Bank of India Vs. Ketan Parekh & Ors. (2008) 8 SCC 148, noticing that one of the two Acts was comparatively general in nature, it was propounded thus :-
"28. In the present case, both the two Acts i.e. the Act of 1992 and the Act of 1993 start with the non- obstante clause. Section 34 of the Act of 1993 starts with non-obstante clause, likewise Section 9-A of the Act of 1992. But incidentally, in this case Section 9-A came subsequently, i.e. it came on 25.1.1994. Therefore, it is a subsequent legislation which will have the over-riding effect over the Act of 1993. But cases might arise where both the enactments have the non-obstante clause then in that case, the proper perspective would be that one has to see the subject and the dominant purpose for which the special enactment was made and in case the dominant purpose is covered by that contingencies, then -14- notwithstanding that the Act might have come at a later point of time still the intention can be ascertained by looking to the objects and reasons. However, so far as the present case is concerned, it is more than clear that Section 9-A of the Act of 1992 was amended on 25.1.1994 whereas the Act of 1993 came in 1993. Therefore, the Act of 1992 as amended to include Section 9-A in 1994 being subsequent legislation will prevail and not the provisions of the Act of 1993. "
18.It has to be noticed that in aforesaid two decisions i.e. Jay Engineering Works Ltd. (supra) and Bank of India (supra), a subsequent amendment carried out in the existing legislation was given due weightage to infer legislative intention.
19. Section 19 (1) of the FC Act begins with non-obstante clause of sweeping nature. overriding provision contained in Code of Civil Procedure, 1908, Code of Criminal Procedure,1973 or any other law. Though Section 19 (1) of the FC Act contains a non obstante clause and FC Act is given an overriding effect under Section 20 thereof, it is equally settled legal position that while dealing with non-obstante clause under which the legislature wants to give overriding effect to a Section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. In the case of A.G. Varadarajulu & Anr. Vs. State of T.N. & Ors.1998 (4) SCC 231, it was held:
"16. It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Vs. Arabinda Bose, [AIR 1952 SC 369] Patanjali Sastri. J observed:-15-
"The enacting part of a statute must, where it is clear, be taken to control the non-obstante clause where both cannot be read harmoniously".
In Madhav Rao Scindia Vs. Union of India [1971 (1) SCC 85 139] Hidayatullah. CJ observed that the non-obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. "A search has, therefore, to be made with a view to determining which provision answers the description and which does not".
20.In the case of ICICI Bank Ltd. (since substituted by Standard Chartered Bank) Vs. Sidco Leathers Ltd. And Ors. (2006) 10 SCC 452, it was held that the interpretative process must be kept confined to legislative policy and must be given effect to, to the extent Parliament intended and not beyond the same. It was observed thus:
"36. The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy. Only because the dues of the workmen and the debt due to the secured creditors are treated pari passu with each other, the same by itself, in our considered view, would not lead to the conclusion that the concept of inter se priorities amongst the secured creditors had thereby been intended to be -16- given a total go-by.
37. A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same."
21.Section 28 (4) of the HM Act was amended vide Amendment Act No.50 of 2003 consequent upon observation made by the Supreme Court, in the case of Savitri Pandey Vs. Prem Chandra Pandey (AIR 2002 SC 591). That was a case where the Supreme Court, dealing with matrimonial case in the light of the provision contained in Hindu Marriage Act, observed that the period of limitation prescribed for filing of appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. The observation made by their Lordships in the aforesaid decision, which led to amendment in Section 28(4) of the HM Act, is as below:-
"18. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the -17- aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf."
22.The observation made by the Supreme Court regarding inadequacy of the provision of appeal and a message to the Legislator to consider appropriate amendment, resulted in amendment in Section 28 (4) of the HM Act by the Parliament vide Amendment Act No.50 of 2003. It is extremely relevant for the purposes of ascertaining legislative intention that when an occasion arose for amendment in the provision with regard to limitation for filing appeal against the decree or order passed by the Family Court in the matter of dispute relating to marriage governed by the provision of the HM Act, 1955, the legislator chose to amend Section 28 (4) of the Hindu Marriage Act, 1955and not Section 19 (3) of the Family Courts Act, 1984. It is well settled legal position that while legislating, the legislator is presumed to be aware of the existence of provision relating to appeal as contained in Section 19(3) of the FC Act.
23.The aforesaid legislative Act of amendment of Section 28 (4) of HM Act so as to enhance the period of limitation than what already existed under pre- existing Section 28 (4) of the HM Act or Section 19 (3) of the FC Act clearly reflects upon legislative intention of saving provision with regard to limitation for filing appeal under Section 28 of the Hindu Marriage Act from the rigor and reach of overriding effect of provision relating to appeal, as contained in Section 19 (3) of the Family Courts Act. In other words, subsequent amendment in 2003, as referred to hereinabove, limits the overriding effect of Section 19(3) of the FC Act, which it may have by virtue of non-obstante clause so as not to override provision with regard to limitation as contained in Section 28 (4) of the HM Act, as amended vide Amendment Act No. 50 of 2003. The three decisions A.G. Varadarajulu (supra), Sidco Leathers Ltd. (supra) and Savitri Pandey (supra)referred to hereinabove settle an important principle of interpretation that intention of legislator is relevant to either restrict or extend the scope, ambit and reach -18- of a non- obstante and overriding clause.
24.Indeed, such an interpretation, which we have drawn as above, is inescapable, otherwise, the very object of legislation in amending Section 28 (4) of the HM Act will be frustrated and amended provision would be rendered meaningless, redundant and otiose.
An interpretation which renders futile a legislative exercise must be avoided. Furthermore, in holding that provision of Section 28 (4) of the HM Act, providing for limitation of appeal are not overridden by prescription of appeal as provided in Section 19 (3) of the Family Courts Act, it leads to harmonious interpretation of the two provisions, inconsistent with each other, contained in two legislations operating in different fields, as held in Jay Engineering Works Ltd. (supra).
25.We must, however, hasten to add and clarify that the aforesaid conclusion is based mainly in the light of amendment carried out by the Legislature in Section 28(4) of the HM Act, in the year 2003 when the provisions contained in Section 19 (3) of the FC Act were already subsisting. Other provision contained in Section 19 of the FC Act which provide for special forum and the constitution of Benches and all other provisions contained therein will have overriding effect. It is only because of amendment of Section 28 (4) of the HM Act that we have drawn the aforesaid conclusion that in the matter of limitation for filing an appeal against judgment and order arising out of dispute concerning marriages, governed by the Hindu Marriage Act, 1955, that the provision relating to appeal, as contained in Section 28 (4) thereof, will hold field and not overridden by period of appeal as provided under Section 19 (3) of the FC Act, 1984.
26.In taking the aforesaid view, we are in respectful agreement with Full Bench decision of the Bombay High Court in the case of Shivram Dodanna Shetty Vs. Sharmila Shivram Shetty reported in 2017 (1) Mh.L.J. 281 and the Division Bench judgment of Allahabad High Court in the case of Smt. Gunjan Vs. Praveen reported in AIR 2017 ALL. 237, relying upon full Bench Judgment of the Bombay High Court.
27.As this appeal arises out of order passed by the Family Court whereby a decree of divorce has been granted under Section 13 (1) of the HM Act -19- 1955, the period of limitation for filing appeal would be 90 days as provided under Section 28 (4) of the HM Act and not 30 days as provided under Section 19 (3) of the FC Act. The Office objection, therefore, is overruled and the appeal is treated to be within limitation. The application for condonation of delay in filing appeal is unnecessary and is therefore disposed off.
28.List this appeal for further orders after two weeks.
Sd/- Sd/- --
(Manindra Mohan Shrivastava) (Rajani Dubey)
29. Judge Judge
Praveen