Uttarakhand High Court
Smt. Anuradha & Others vs Jitendra Dangwal on 26 November, 2012
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 420 of 2012
Smt. Anuradha & others. .......... Appellants
Versus
Jitendra Dangwal. ............ Respondent
Mr. Pramod Bailwal, Advocate for the appellant.
Mr. Pratiroop Pandey, Advocate for the respondent.
Hon'ble Barin Ghosh, C.J.
Hon'ble U.C. Dhyani, J.
Parties, who are governed by The Hindu Marriage Act, 1955, i.e. those who are Hindus by religion in any of its forms or developments, are entitled to obtain decree for restitution of conjugal rights under Section 9 of the said Act. Section 19 of the said Act contemplates that a court, having ordinary original civil jurisdiction, is competent to pass such decree for restitution of conjugal rights. Parties seeking such decree for restitution of conjugal rights are required to approach such courts by presenting a petition. In relation to such petitions, the Code of Civil Procedure, 1908 is applicable. Section 24 of the said Act authorised the court to grant maintenance pendente lite and expenses of proceedings initiated in the court. Section 28 of the said Act permits appeals against decrees passed by such courts on such petitions. Those appeals are entertainable by those appellate courts, who are authorised to receive the same. Orders granting permanent alimony and maintenance under Section 25 of the Act and custody of children under Section 26 of the said Act, are though appealable but not when they are interim orders. Appeals against such decrees and orders are to be preferred within 90 days from the date of the order.
2. Subsequent thereto, The Family Courts Act, 1984 was made, whereby and under, Family Courts were established. Family Courts, on their establishment, acquired all the jurisdiction exercisable by any district court or any subordinate civil court in respect of suits and proceedings between the parties to a marriage for obtaining a decree for restitution of conjugal 2 rights. Section 19 of The Family Courts Act, 1984 permits appeal from every judgment and order of the Family Court to the High Court on facts and on law. The said Section provides that every appeal to be preferred thereunder, i.e. to be preferred from an order of the Family Court to the High Court, shall be preferred within a period of 30 days from the date of judgment or order of a Family Court.
3. In the instant case, a decree for restitution of conjugal rights was sought and an application was filed seeking maintenance pendente lite. The claim for restitution of conjugal rights has not yet been decreed, but an order has been passed directing grant of maintenance pendente lite in respect of children in the custody of appellant No. 1 / wife. Wife is aggrieved as the maintenance awarded is insufficient.
4. The present appeal against the said order, directing payment of maintenance pendente lite to the children in the custody of appellant No. 1, has been preferred within 90 days from the date of the order of the Family Court, but after 30 days from the date of the order of the Family Court. In the circumstances, the question is whether the appeal is within time?
5. It is the contention of the appellants that a substantive right to prefer an appeal has been given by The Hindu Marriage Act, 1955 and, along with that, 90 days' time has been granted to prefer such appeal. It is, therefore, contended that the appeal is within time. The fact remains that, when the Hindu Marriage Act, 1955 was enacted, as is evident therefrom, the legislature contemplated that all disputes pertaining to restitution of conjugal rights will be sorted out by the ordinary courts having ordinary original civil jurisdiction. The legislature permitted decrees, as contemplated in the said Act, passed by such courts, will only be appealable and such appeal will lie to the court to which appeals ordinarily lie from the decisions of the court, which has given the decree in exercise of its original civil jurisdiction. The legislature did not permit orders passed by the courts, except under Sections 25 and 26, but not when they are interim orders, to be appealed against. By a latter Act, Family Courts were established and the jurisdiction of the 3 courts, having ordinary original civil jurisdiction to entertain petitions seeking decrees under The Hindu Marriage Act, 1955, was vested in the Family Courts. By the latter Act, the legislature permitted appeals to be preferred against judgments and orders of Family Courts, but not against an interlocutory order, to the High Court and directed that such an appeal must be preferred within 30 days from the date of the judgment. Thereby, the legislature, while reduced the time to prefer appeal against a decree passed in terms of the provisions of The Hindu Marriage Act, 1955 by an ordinary court having ordinary original civil jurisdiction; established Family Courts for deciding disputes in connection therewith and, at the same time, fixed only 30 days' time to prefer appeals against all judgments and orders of the Family Court, except interlocutory orders, to the High Court within 30 days from the date of the judgment and order.
6. The conclusion, therefore, would be that the present appeal is beyond time, the same having not been preferred within 30 days from the date of the judgment and order of the Family Court. We, accordingly, permit the appellants to file an Application for condonation of delay in preferring the appeal. Adjourned for two weeks for that purpose.
(U.C. Dhyani, J.) (Barin Ghosh, C. J.)
26.11.2012 26.11.2012
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