enactments and the purpose behind amending the provisions of Section 28(4) of the Act of 1955, it would not be appropriate to apply different period of limitation, one in case of orders passed by the Family Courts and in another by the regular Civil Courts. Such an approach would frustrate very purpose of legislation.
29. For the reasons stated above, we hold that for an appeal filed
under sub-section (1) of Section 19 of the Family Courts Act, 1984, period of limitation prescribed under sub-section (4) of Section 28 of the Hindu Marriage Act, 1955 shall apply.
The provision for filing of appeals from decrees and orders is prescribed
under Section 28 of the Act of 1955, which reads as under :-
“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 the
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.
(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.”
In Section 28(4), the Act prescribed a period of limitation of
thirty days, which came to be substituted to ninety days by way of Act 50
of 2003.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 161 OF 2013
Shri Shivram Dodanna Shetty V Sou. Sharmila Shivram Shetty
CORAM: NARESH H. PATIL,
R. D. DHANUKA &
SMT. SADHANA S. JADHAV, JJ.
PRONOUNCED ON : DECEMBER 01, 2016
Citation: 2017(1) MHLJ 281
1. A question framed by the Division Bench of this court was
referred to a Larger Bench by the then Hon'ble the Acting Chief Justice of
this Court. The question was framed by the Division Bench (Coram:A. S.
Oka & A. S. Gadkari, JJ.) by an order dated 10/12/2014. The said question
reads as under :-
“Whether an appeal under sub-section (1) of section 19 of the
Family Courts Act, 1984 will be governed by the period of
limitation under sub-section (3) of section 19 or whether the
period of limitation provided under sub-section (4) of section
28 of the Hindu Marriage Act, 1955 will apply to such
Appeal?
2. The Hindu Marriage Act, 1955 (for short “the Act of 1955)
was enacted by Parliament for amending and codifying the law relating to
marriage amongst Hindus. The Act of 1955 became law on 18/5/1955.
The Act of 1955 was amended by Amendment Act 68 of 1976, Amendment
Act 2 of 1978 and Amendment Act 50 of 2003. The proceedings under
the Act of 1955 were to be instituted in District Court. Section 3(b) defines
“District Court” as under:-
“(3) Definitions.- In this Act, unless the context otherwise
requires, -
(a)
(b) “district Court” means, in any area for which there is a
City Civil Court, that Court, and in any other area the principal
Civil Court of original jurisdiction, and includes any other
Civil Court which may be specified by the State Government,
by notification in the Official Gazette, as having jurisdiction in
respect of the matters dealt with in this Act;”
The provision for filing of appeals from decrees and orders is prescribed
under Section 28 of the Act of 1955, which reads as under :-
“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 the
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.
(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.”
In Section 28(4), the Act prescribed a period of limitation of
thirty days, which came to be substituted to ninety days by way of Act 50
of 2003.
3. The Family Courts Act, 1984 (for short “the Act of 1984) was
enacted to provide establishment of Family Courts with a view to promote
conciliation in, and secure speedy settlement of, disputes relating to
marriage and family affairs and for matters connected therewith. The Act
of 1984 was enacted on 14/9/1984. The said Act provides that the State
Government shall, after consultation with the High Court, establish the
Family Court. Section 3 of the Act of 1984 reads as under :-
“3. Establishment of Family Courts.- (1) For the purpose
of exercising the jurisdiction and powers conferred on a
Family Court by this Act, the State Government, after
consultation with the High Court, and by notification, -
(a) shall, as soon as may be after the commencement
of this Act, establish for every area in the State
comprising a city or town whose population exceeds
one million, a Family Court;
(b) may establish Family Courts for such other areas
in the State as it may deem necessary.
(2) The State Government shall, after consultation with the
High Court, specify, by notification, the local limits of the area
to which the jurisdiction of a Family Court shall extend and
may, at any time, increase reduce or alter such limits.
Section 7 of the Act of 1984 prescribed as under:
“7. Jurisdiction. - (1) Subject to the other provisions of this
Act, a Family Court shall -
(a) have and exercise all the jurisdiction exercisable
by any district Court or any subordinate civil Court
under any law for the time being in force in respect of
suits and proceedings of the nature referred to in the
Explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district Court or, as
the case may be, such subordinate civil Court for the
area to which the jurisdiction of the Family Court
extends.
Explanation. - The suits and proceedings referred to in this
sub-section are suits and proceedings of the following nature,
namely:-
(a) a suit or proceeding between the parties to a
marriage for a decree of nullity of marriage (declaring
the marriage to be null and void or, as the case may be,
annulling the marriage) or restitution of conjugal rights
or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status of
any person;
(c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of
either of them;
(d) a suit or proceeding for an order or injunction in
circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship
of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise -
(a) the jurisdiction exercisable by a Magistrate of the
first class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the Code
of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it
by any other enactment.
Section 8 of the Act of 1984 reads as under :-
“8. Exclusion of jurisdiction and pending proceedings. -
Where a Family Court has been established for any area, -
(a) no district Court or any subordinate civil Court
referred to in sub-section (1) of section 7 shall, in
relation to such area, have or exercise any jurisdiction in
respect of any suit or proceeding of the nature referred
to in the Explanation to that sub-section;
(b) no Magistrate shall, in relation to such area, have
or exercise any jurisdiction or powers under Chapter IX
of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to
in the Explanation to sub-section (1) of section 7 and
every proceeding under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974), -
(i) which is pending immediately before the
establishment of such Family Court before any
district Court or subordinate Court referred to in
that sub-section or, as the case may be, before any
Magistrate under the said Code; and
(ii) which would have been required to be
instituted or taken before or by such Family Court
if, before the date on which such suit or
proceeding was instituted or taken, this Act had
come into force and such Family Court had been
established,
shall stand transferred to such Family Court on
the date on which it is established.
The provision of appeal is prescribed under Section 19, which
reads as under :-
“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.
(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 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.”
4. Section 19(3) of the Act of 1984 prescribed a period of thirty
days for filing appeal from every judgment or order not being an
interlocutory order by Family Court to the High Court, both on facts and on
law.
Section 20 of the Act of 1984 reads as under :-
“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.”
5. The provisions of Section 28(4) of the Act of 1955 came to be
amended by substituting the period of limitation from thirty days to ninety
days consequent to the judgment of the Apex Court delivered in the case
of Savitri Pandey vs. Prem Chandra Pandey1
. The Family Courts were
established at some places in the State of Maharashtra. At places where the
Family Courts could not be established, proceedings are being initiated in
the regular civil courts.
6. An issue was framed by the Division Bench that whether an
appeal under sub-section (1) of Section 19 of the Act of 1984 will be
governed by the period of limitation under sub-section (3) of Section 19 of
the Act of 1984 or under sub-section (4) of Section 28 of the Act of 1955?
7. Mr. Aspi Chinoy, learned Senior Counsel, assisted the
court as an Amicus Curiae. We have heard the learned Senior Counsel at
length. It was submitted by the learned Senior Counsel that if the two
statutes are so construed and understood, there is no conflict between the
1.AIR 2002 SC 591
two laws, both of which are enacted by Parliament. In his submission, no
question arises of invoking non obstante provision under Section 20 of the
Act of 1984. The Act of 1984 and the non obstante provision is not
intended to and cannot have the result of impliedly repealing provisions
made in the substantive law i.e. the Hindu Marriage Act, 1955. The Act of
1984 provides for a special forum / court to decide such matrimonial
disputes and it also provides for special rules or procedure in such cases.
In this context, the non obstante provision prescribed in Section 20 of the
Act of 1984 is required to be construed, according to the learned Senior
Counsel.
On the principle of interpretation of statutes, learned Senior
Counsel submitted that both the statutes are to be construed and read
harmoniously. The Act of 1984 does not expressly repeal Section 28 of the
Act of 1955. When there is no express repeal, courts have not favoured
such repeal by implication. On the other hand, it is indicated by the courts
that if earlier and later statutes can reasonably be construed in such a way
that both can be effective, the same may be done. The legislature, while
enacting a law, is presumed to have complete knowledge of law on the
same subject matter and, therefore, when it does not provide a repealing
provision, it gives out an intention not to repeal the existing legislation.
Learned Senior Counsel further submitted that the Act of 1955
is a special law vis-a-vis the Act of 1984, which is a general law, which
provides a forum for the adjudication of matrimonial disputes arising under
all the diverse substantive laws. It was submitted that it is well settled
principle of interpretation of law that general law does not abrogate earlier
special law by mere implication. The Act of 1984 is essentially a
procedural law. It is a settled principle of interpretation of law that the
legislature while enacting a law in the year 2003 was presumed to be
aware of the provisions of the existing legislation, including Section 19(3)
of the Act of 1984. Therefore, it would be contrary to the purpose and
object of the scheme of law to read the amendment of Section 28(4) as
operating only where the proceedings are brought in the ordinary civil
court and as not applying / operating when proceedings under the Act of
1955 are brought in the Family Court. Learned Senior Counsel referred to
the following judgments :-
(a) Savitri Pandey vs. Prem Chandra Pandey [AIR 2002 SC
591].
(b) R. S. Raghunath vs. State of Karnataka and anr. [(1992)
1 SCC 335].
(c) Viswanathan P. K. Vs. Sindhu M. K. [2009 SCC
OnLine Ker 4124].
(d) Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi [2015
(1) Mh. L. J. 954].
8. Learned counsel Mr. Murtaza Najmi, who appeared suo motu,
submitted that the Act of 1984 is a later law and it has a overriding effect in
respect of the provisions relating to the limitation prescribed for filing an
appeal. Learned counsel submitted that the appeals arising out of the
proceedings initiated in Family Court shall be governed by the provisions
of Section 19(3) of the Act of 1984 and the appeals arising out of the
ordinary civil court under the Act of 1955 shall be governed by the
provisions of Section 28(4) of the Act of 1984. The counsel submitted that
in a way, in respect of provisions of limitation, both the Acts have certain
inconsistencies, but considering the scheme of the provisions of the Act of
1984, Section 19(3) of the said Act will have be to given precedence over
the provisions of Section 28(4) of the Act of 1955. Learned counsel
submitted that the later general law can repeal prior special law.
9. Ms. Zenobia Irani, learned counsel appearing for the appellant
submitted that it is a matter of record that the Parliament did not amend the
provisions relating to limitation as prescribed under the Act of 1984. The
Act of 1984 is partly procedural and partly substantial. A discriminatory
type of provisions are prescribed relating to two different forums
considering the subject matter of appeals prescribed. Keeping in view the
purpose of enactment of both the statutes, the provisions of these statutes
will have to be construed. Learned counsel differs in respect of the
interpretation placed by the learned Senior Counsel Mr. Aspi Chinoy, as
stated above.
10. Mr. Nitin Dalvi, learned counsel appearing for respondent,
supported the submissions made by the learned Senior Counsel Mr. Aspi
Chinoy. Learned counsel submitted that both the provisions prescribed
under both the Acts must be considered and construed harmoniously and be
held that a period prescribed under the Act of 1955 under Section 28(4)
shall be applicable to the appeals preferred in the High Court arising out of
the judgments and orders passed by the Family Court or the Civil Court.
Learned counsel submitted that with a view to secure speedy settlement of
disputes relating to marriage and family affairs, separate Family Courts
were established pursuant to the Act 66 of 1984. The Act of 1984 is a
procedural law prescribing procedure to be adopted in the Family Courts.
Prior to the enactment of the Act of 1984, all the family matters were
adjudicated under Order XXXIIA of Civil Procedure Code, 1908 before the
concerned District Courts.
11. We have considered the submissions advanced before us,
perused the provisions of the relevant statutes and the judgments cited.
We have also gone through some of the Parliamentary debates in respect of
passing of both the enactments.
12. In the case of Seaford Court Estates, Ltd. vs. Asher2
Lord
Denning stated as under :-
“........Whenever a statute comes up for consideration it must
be remembered that it is not within human powers to foresee
the manifold sets of facts which may arise, and, even if it
were, it is not possible to provide for them in terms free from
all ambiguity. The English language is not an instrument of
mathematical precision. Our literature would be much the
poorer if it were. This is where the draftsmen of Acts of
Parliament have often been unfairly criticised. A judge,
2 1949 (2) All England Report 155
believing himself to be fettered by the supposed rule that he
must look to the language and nothing else, laments that the
draftsmen have not provided for this or that, or have been
guilty of some or other ambiguity.........”
13. The provisions of Section 28 (4) of the Act of 1955 came to be
amended consequent to the suggestion given by the Apex Court in Savitri
Pandey's case (Supra). In its letter and spirit, the views of the Apex Court
in the case of Savitri Pandey are required to be considered. The Apex
Court observed that period of limitation prescribed for filing appeal under
Section 28(4) was apparently inadequate which facilitates frustration of
the marriages by unscrupulous litigant spouses. It is necessary to refer to
the observations of the Apex Court in para 18 of the said judgment here
itself:-
“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 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.”
(Emphasis supplied)
14. Consequent to the observations and suggestions given by the
Apex Court, quoted above, the Parliament amended the provisions of
Section 28(4) of the Act of 1955. Therefore, the purpose and object
behind amending the said Act in the year 2003 is required to be considered.
While amending the provisions, the Parliament was aware of the existence
of the Act of 1984. It is presumed that the Parliament was conscious of
the existence of another statute relating to the subject, prescribing forum
and procedure and period of limitation. Therefore, a harmonious
interpretation which would advance the object and purpose of the
legislation will have to be adopted.
15. As the Act of 1955 was amended by the Parliament in the year
2003, in that sense, the period of limitation of ninety days was prescribed
by a later law which would override the provisions relating to period of
limitation prescribed in the earlier enactment i.e. Act of 1984. The
substantive provision of law was amended at a later stage and the same
shall prevail being later in point of time.
16. Even if both the Acts are considered on certain subjects and
situations to be special and general, even then, as a matter of sound
interpretation and keeping in view the purpose for providing a larger period
of limitation, it must be construed that the appeals arising out of the
judgment and orders passed by the Family Court shall be governed by a
larger period of limitation prescribed under Section 28(4) of the Act of
1955. Any contrary interpretation would frustrate the very object of the
enactment which was made on the suggestion of the Apex Court in the case
of Savitri Pandey.
17. Considering the provisions of the Act of 1984 and the Act of
1955, we do not find that there is an express repeal of the provisions of
Section 28(4).
18. The Apex Court, in para 11, in the case of R. S. Raghunath
vs. State of Karnataka and anr.3
, by referring to earlier judgment in the
case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC
447], observed as under:-
“..... In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram the
scope of non-obstante clause is explained in the following
words: (SCCp.477-78, para 67)
“ A clause beginning with the expression
`notwithstanding anything contained in this Act or in
some particular provision in the Act or in some
particular Act or in any law for the time being in force,
or in any contract' is more often than not appended to a
section in the beginning with a view to give the enacting
part of the section in case of conflict an overriding effect
over the provision of the Act or the contract mentioned
in the non-obstante clause. It is equivalent to saying that
in spite of the provision of the Act or any other Act
mentioned in the non-obstante clause or any contract or
document mentioned the enactment following it will
3 (1992) 1 SCC 335
have its full operation or that the provisions embraced in
the non-obtante clause would not be an impediment for
an operation of the enactment.”
On a conspectus of the above authorities it emerges that the
non-obstante clause is appended to a provision with a view to
give the enacting part of the provision an overriding effect in
case of conflict. But the non-obstante clause need not
necessarily and always be co-extensive with the operative part
so as to have the effect of cutting down the clear terms of an
enactment and if the words of the enactment are clear and are
capable of a clear interpretation on a plain and grammatical
construction of the words the non-obstante clause cannot cut
down the construction and restrict the scope of its operation.
In such cases the non-obstante clause has to be read as
clarifying the whole position and must be understood to have
been incorporated in the enactment by the legislature by way
of abundant caution and not by way of limiting the ambit and
scope of the Special Rules.”
In the above case, in para 7, the Apex Court referred to the
Maxwell on The Interpretation of Statutes (11th Edition, page 168). The
principle of law was 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.”
19. Learned Senior Counsel, Mr. Aspi Chinoy, referred to the
observations made by the Division Bench of Kerala High Court in paras 17
and 20 of the judgment in the case of Viswanathan P. K. vs. Sindhu M.
K.4
, which read as under :
“17. In this case, there is no specific non-obstante clause
available in either statute. But both stipulations occupy the
same field. The dictum above can hence be relied on safely.
The learned counsel contend that the purpose and object of
Marriage Laws Amendment Act 2003 must be taken into
consideration and evidently the Marriage Laws Amendment
Act was enacted in the light of the observations in paragraph
19 of Savitri Pandey (supra) which we have already extracted
4 2009 SCC OnLine Ker 4124
above. The purpose of amending Section 28(4) obviously was
the inconvenience and hardship noted by the Supreme Court
in Savitri Pandey (AIR 2002 SC 591). The Supreme Court
observed that to prefer an appeal before the High Court
against an order passed by the District Court, a period of 30
days may not be sufficient and that such a stipulation is
working out injustice as was revealed in the facts of that case.
The purpose of the Marriage Laws Amendment Act, by which
Section 28(4) of the Hindu Marriage Act was amended, was
obviously to give a larger period of limitation for the parties
aggrieved by the orders passed in matrimonial cases under the
Hindu Marriage Act and the Special Marriage Act. In this
view of the matter, considering the purpose and object of the
Act it is evident that the period of limitation under Section
28(4) of the Hindu Marriage Act which amendment was
brought in with effect from 23-12-2003 must be given
prominence and predominance.
20. Fifthly, the learned counsel contends that the principle
of law is well settled that when a later enactment prescribes a
different period of limitation, such later enactment must be
preferred. Of course, the Hindu Marriage Act was enacted in
1955. The Family Courts Act was enacted in 1984. But the
crucial amendment to Section 28 (4) was enacted later in
2003. The parliament must be presumed to have known the
relevant stipulations of general nature in Section 19(3) while
bringing in the amendment to Section 28(4). In support of this
proposition, the learned counsel relies on the following
observations of the Supreme Court in paragraph 21 of Sarwan
Singh (AIR 1977 SC 265) (Supra):”
20. We may refer to the observations made by the Division Bench
of this Court in paras 20, 21, 24 and 25 of the judgment in the case of
Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi5
, which read as
under:-
“20. Thus, later enactment must prevail over the former. The
same test was approved by the Supreme Court in Shri Ram
Narain vs. Simla Banking and Industrial Co. Ltd., 1956 SCR
603 : AIR 1956 SC 614. On the principle that the later
enactment i.e. Marriage Laws Amendment Act, 2003 must
prevail over the earlier enactment i.e. Family Courts Act, the
larger period of limitation prescribed under section 28(4) of
the Hindu Marriage Act must prevail. On the principle of
equality under Article 14 of the Constitution of India also an
identical period of limitation must be held to be applicable
against all orders appealable under section 28 of the Hindu
Marriage Act. Merely because the order is passed by a
District Court, a larger period of limitation i.e. 90 days and
merely because the order is passed by the Family Court, a
lesser period of limitation of 30 days would be unreasonable
5 2015 (1) Mh.L.J. 954
and will not stand the test of equality. The interpretation must
be such that an identical period of limitation would be
available for orders appealable under section 28 of the Hindu
Marriage Act – whether such order is passed by the District
Court or the Family Court.
21. Thereafter the learned counsel for the applicant also
raised the contention that in view of section 20 of the Family
Courts Act in which there is non-obstante clause, the Family
Court Act would prevail over the Hindu Marriage Act.
The short question that remains to be considered is
whether the non-obstante clauses in section 19 and 20 can
override the applicability of the period of limitation
prescribed for an appeal under section 28. A non-obstante
clause cannot be read mechanically. The totality of the
circumstances have to be taken into account. The precise
intention of the legislature will have to ascertained. Vague and
general non-obstante clauses cannot operate to militate against
specific stipulations made in enactments to meet specific
situations. We have already discussed above why section 28
(4) of Hindu Marriage Act was amended, this circumstance has
to be given due weightage.
24. The first two decisions relied upon by Mr. Jaisinghani
are not applicable to the facts of the present case. The
remaining three decisions which are pressed into service by
Mr. Jaisinghani were rendered by Allahabad High Court,
Madras High Court and Karnataka High Court, whereas the
last two decisions in the case of Milan Tandel and Surekha
Sawant (supra) are by Division Benches of this Court. We
have already observed that the decisions by the Allahabad,
Madras and Karnataka High Courts can at the most only have
persuasive value.
25. We do not find any reason to take a different view from
the one taken by the Division Bench of our Court in Milan
Laxman Tandel's and Surekha Savant's cases. In view thereof,
we reject the preliminary objection and hold that there is no
delay in filing the appeal. In other words, we hold that the
appeal having been filed within 90 days, as contemplated by
section 28(4) of the Hindu Marriage Act, is within limitation.
Hence, there is no merit in this application and the same is
rejected.”
21. Considering the scheme of the enactments of the Act of 1955
and the Act of 1984, more precisely the provisions of limitation and non
obstante provision provided in the Act of 1984, we do not find a clear
inconsistency between the two enactments. It is principle of law that for
giving a overriding effect to a non obstante provision, there should be clear
inconsistency between the two enactments.
22. The principle of law of interpretation further lays down that in
a given case both the enactments could be special statutes dealing with
different situations and there could be non obstante provision in both the
special statutes. In such a situation, the conflict between two enactments
need to be resolved, considering the purpose and object of the Act.
23. It is settled rule of interpretation that if one construction leads
to a conflict, whereas on another construction, two Acts can be
harmoniously constructed, then the later must be adopted. On such
interpretation, the objects of both the enactments would be fulfilled and
there would be no conflict.
24. While interpreting the provisions of the said two enactments, it
needs to be considered that we are a country of vast population, millions of
people face financial hardship for litigating a matter, people have to spend
considerable amount of time, money and energy. The geographical
conditions further make easy access to justice difficult and taking into
consideration all these circumstances, coupled with the peculiar situation
faced by the parties while litigating matrimonial, family related issues, the
Apex Court made certain observations in the case of Savitri Pandey which
suggestion was accepted by the Parliament and accordingly the law was
amended.
25. We are convinced of the interpretation put up by the learned
Senior Counsel that if the two statutes are construed and understood in its
proper sense, then there is no conflict between the two laws and, therefore,
no question arises of invoking non obstante provision in Section 20 of the
Act of 1984. The enactment of the Act of 1984 or non obstante provision
in Section 20 is not intended to impliedly repeal provisions made in the
Act of 1955. The Act of 1984 provides for a special forum relating to
matrimonial disputes and with that view, special procedure was devised for
expeditious adjudication of the cases. It is in that context the non obstante
provision of Section 20 is required to be construed.
26. A non obstante clause must be given effect to the extent
Parliament intended and not beyond the same. It may be used as a
legislative device to modify the scope of provision or law mentioned in
the said clause. The non obstante clause would throw some light as to the
scope and ambit of the enacting part in case of its ambiguity. But if the
enacting part is clear, its scope cannot be cut down or enlarge by resorting
to non obstante clause.
27. In our view, considering the scheme of the Act of 1984 and the
object and purpose for its enactment, largely the Act is procedural in
nature. The Act of 1984 provides for special forum to decide matrimonial
related disputes and prescribes for special rules and procedure. In this
context, the non obstante provision in Section 20 is required to be
construed.
28. We are of the view that considering the scheme of both the
enactments and the purpose behind amending the provisions of Section 28
(4) of the Act of 1955, it would not be appropriate to apply different period
of limitation, one in case of orders passed by the Family Courts and in
another by the regular Civil Courts. Such an approach would frustrate
very purpose of legislation.
29. For the reasons stated above, we hold that for an appeal filed
under sub-section (1) of Section 19 of the Family Courts Act, 1984, period
of limitation prescribed under sub-section (4) of Section 28 of the Hindu
Marriage Act, 1955 shall apply.
30. Reference is answered accordingly.
31. We record our appreciation for valuable assistance rendered to
us by the Amicus Curiae, learned Senior Counsel Shri Aspi Chinoy.
We also appreciate the assistance rendered to us by learned counsel
Shri Murtaza Najmi.
32. We direct the Registry to place the matter before the
appropriate court.
(NARESH H. PATIL,J.)
(R. D. DHANUKA, J.)
(SMT. SADHANA S. JADHAV,J.)
under Section 28 of the Act of 1955, which reads as under :-
“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 the
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.
(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.”
In Section 28(4), the Act prescribed a period of limitation of
thirty days, which came to be substituted to ninety days by way of Act 50
of 2003.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 161 OF 2013
Shri Shivram Dodanna Shetty V Sou. Sharmila Shivram Shetty
CORAM: NARESH H. PATIL,
R. D. DHANUKA &
SMT. SADHANA S. JADHAV, JJ.
PRONOUNCED ON : DECEMBER 01, 2016
Citation: 2017(1) MHLJ 281
1. A question framed by the Division Bench of this court was
referred to a Larger Bench by the then Hon'ble the Acting Chief Justice of
this Court. The question was framed by the Division Bench (Coram:A. S.
Oka & A. S. Gadkari, JJ.) by an order dated 10/12/2014. The said question
reads as under :-
“Whether an appeal under sub-section (1) of section 19 of the
Family Courts Act, 1984 will be governed by the period of
limitation under sub-section (3) of section 19 or whether the
period of limitation provided under sub-section (4) of section
28 of the Hindu Marriage Act, 1955 will apply to such
Appeal?
2. The Hindu Marriage Act, 1955 (for short “the Act of 1955)
was enacted by Parliament for amending and codifying the law relating to
marriage amongst Hindus. The Act of 1955 became law on 18/5/1955.
The Act of 1955 was amended by Amendment Act 68 of 1976, Amendment
Act 2 of 1978 and Amendment Act 50 of 2003. The proceedings under
the Act of 1955 were to be instituted in District Court. Section 3(b) defines
“District Court” as under:-
“(3) Definitions.- In this Act, unless the context otherwise
requires, -
(a)
(b) “district Court” means, in any area for which there is a
City Civil Court, that Court, and in any other area the principal
Civil Court of original jurisdiction, and includes any other
Civil Court which may be specified by the State Government,
by notification in the Official Gazette, as having jurisdiction in
respect of the matters dealt with in this Act;”
The provision for filing of appeals from decrees and orders is prescribed
under Section 28 of the Act of 1955, which reads as under :-
“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 the
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.
(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.”
In Section 28(4), the Act prescribed a period of limitation of
thirty days, which came to be substituted to ninety days by way of Act 50
of 2003.
3. The Family Courts Act, 1984 (for short “the Act of 1984) was
enacted to provide establishment of Family Courts with a view to promote
conciliation in, and secure speedy settlement of, disputes relating to
marriage and family affairs and for matters connected therewith. The Act
of 1984 was enacted on 14/9/1984. The said Act provides that the State
Government shall, after consultation with the High Court, establish the
Family Court. Section 3 of the Act of 1984 reads as under :-
“3. Establishment of Family Courts.- (1) For the purpose
of exercising the jurisdiction and powers conferred on a
Family Court by this Act, the State Government, after
consultation with the High Court, and by notification, -
(a) shall, as soon as may be after the commencement
of this Act, establish for every area in the State
comprising a city or town whose population exceeds
one million, a Family Court;
(b) may establish Family Courts for such other areas
in the State as it may deem necessary.
(2) The State Government shall, after consultation with the
High Court, specify, by notification, the local limits of the area
to which the jurisdiction of a Family Court shall extend and
may, at any time, increase reduce or alter such limits.
Section 7 of the Act of 1984 prescribed as under:
“7. Jurisdiction. - (1) Subject to the other provisions of this
Act, a Family Court shall -
(a) have and exercise all the jurisdiction exercisable
by any district Court or any subordinate civil Court
under any law for the time being in force in respect of
suits and proceedings of the nature referred to in the
Explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district Court or, as
the case may be, such subordinate civil Court for the
area to which the jurisdiction of the Family Court
extends.
Explanation. - The suits and proceedings referred to in this
sub-section are suits and proceedings of the following nature,
namely:-
(a) a suit or proceeding between the parties to a
marriage for a decree of nullity of marriage (declaring
the marriage to be null and void or, as the case may be,
annulling the marriage) or restitution of conjugal rights
or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status of
any person;
(c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of
either of them;
(d) a suit or proceeding for an order or injunction in
circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship
of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise -
(a) the jurisdiction exercisable by a Magistrate of the
first class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the Code
of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it
by any other enactment.
Section 8 of the Act of 1984 reads as under :-
“8. Exclusion of jurisdiction and pending proceedings. -
Where a Family Court has been established for any area, -
(a) no district Court or any subordinate civil Court
referred to in sub-section (1) of section 7 shall, in
relation to such area, have or exercise any jurisdiction in
respect of any suit or proceeding of the nature referred
to in the Explanation to that sub-section;
(b) no Magistrate shall, in relation to such area, have
or exercise any jurisdiction or powers under Chapter IX
of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to
in the Explanation to sub-section (1) of section 7 and
every proceeding under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974), -
(i) which is pending immediately before the
establishment of such Family Court before any
district Court or subordinate Court referred to in
that sub-section or, as the case may be, before any
Magistrate under the said Code; and
(ii) which would have been required to be
instituted or taken before or by such Family Court
if, before the date on which such suit or
proceeding was instituted or taken, this Act had
come into force and such Family Court had been
established,
shall stand transferred to such Family Court on
the date on which it is established.
The provision of appeal is prescribed under Section 19, which
reads as under :-
“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.
(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 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.”
4. Section 19(3) of the Act of 1984 prescribed a period of thirty
days for filing appeal from every judgment or order not being an
interlocutory order by Family Court to the High Court, both on facts and on
law.
Section 20 of the Act of 1984 reads as under :-
“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.”
5. The provisions of Section 28(4) of the Act of 1955 came to be
amended by substituting the period of limitation from thirty days to ninety
days consequent to the judgment of the Apex Court delivered in the case
of Savitri Pandey vs. Prem Chandra Pandey1
. The Family Courts were
established at some places in the State of Maharashtra. At places where the
Family Courts could not be established, proceedings are being initiated in
the regular civil courts.
6. An issue was framed by the Division Bench that whether an
appeal under sub-section (1) of Section 19 of the Act of 1984 will be
governed by the period of limitation under sub-section (3) of Section 19 of
the Act of 1984 or under sub-section (4) of Section 28 of the Act of 1955?
7. Mr. Aspi Chinoy, learned Senior Counsel, assisted the
court as an Amicus Curiae. We have heard the learned Senior Counsel at
length. It was submitted by the learned Senior Counsel that if the two
statutes are so construed and understood, there is no conflict between the
1.AIR 2002 SC 591
two laws, both of which are enacted by Parliament. In his submission, no
question arises of invoking non obstante provision under Section 20 of the
Act of 1984. The Act of 1984 and the non obstante provision is not
intended to and cannot have the result of impliedly repealing provisions
made in the substantive law i.e. the Hindu Marriage Act, 1955. The Act of
1984 provides for a special forum / court to decide such matrimonial
disputes and it also provides for special rules or procedure in such cases.
In this context, the non obstante provision prescribed in Section 20 of the
Act of 1984 is required to be construed, according to the learned Senior
Counsel.
On the principle of interpretation of statutes, learned Senior
Counsel submitted that both the statutes are to be construed and read
harmoniously. The Act of 1984 does not expressly repeal Section 28 of the
Act of 1955. When there is no express repeal, courts have not favoured
such repeal by implication. On the other hand, it is indicated by the courts
that if earlier and later statutes can reasonably be construed in such a way
that both can be effective, the same may be done. The legislature, while
enacting a law, is presumed to have complete knowledge of law on the
same subject matter and, therefore, when it does not provide a repealing
provision, it gives out an intention not to repeal the existing legislation.
Learned Senior Counsel further submitted that the Act of 1955
is a special law vis-a-vis the Act of 1984, which is a general law, which
provides a forum for the adjudication of matrimonial disputes arising under
all the diverse substantive laws. It was submitted that it is well settled
principle of interpretation of law that general law does not abrogate earlier
special law by mere implication. The Act of 1984 is essentially a
procedural law. It is a settled principle of interpretation of law that the
legislature while enacting a law in the year 2003 was presumed to be
aware of the provisions of the existing legislation, including Section 19(3)
of the Act of 1984. Therefore, it would be contrary to the purpose and
object of the scheme of law to read the amendment of Section 28(4) as
operating only where the proceedings are brought in the ordinary civil
court and as not applying / operating when proceedings under the Act of
1955 are brought in the Family Court. Learned Senior Counsel referred to
the following judgments :-
(a) Savitri Pandey vs. Prem Chandra Pandey [AIR 2002 SC
591].
(b) R. S. Raghunath vs. State of Karnataka and anr. [(1992)
1 SCC 335].
(c) Viswanathan P. K. Vs. Sindhu M. K. [2009 SCC
OnLine Ker 4124].
(d) Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi [2015
(1) Mh. L. J. 954].
8. Learned counsel Mr. Murtaza Najmi, who appeared suo motu,
submitted that the Act of 1984 is a later law and it has a overriding effect in
respect of the provisions relating to the limitation prescribed for filing an
appeal. Learned counsel submitted that the appeals arising out of the
proceedings initiated in Family Court shall be governed by the provisions
of Section 19(3) of the Act of 1984 and the appeals arising out of the
ordinary civil court under the Act of 1955 shall be governed by the
provisions of Section 28(4) of the Act of 1984. The counsel submitted that
in a way, in respect of provisions of limitation, both the Acts have certain
inconsistencies, but considering the scheme of the provisions of the Act of
1984, Section 19(3) of the said Act will have be to given precedence over
the provisions of Section 28(4) of the Act of 1955. Learned counsel
submitted that the later general law can repeal prior special law.
9. Ms. Zenobia Irani, learned counsel appearing for the appellant
submitted that it is a matter of record that the Parliament did not amend the
provisions relating to limitation as prescribed under the Act of 1984. The
Act of 1984 is partly procedural and partly substantial. A discriminatory
type of provisions are prescribed relating to two different forums
considering the subject matter of appeals prescribed. Keeping in view the
purpose of enactment of both the statutes, the provisions of these statutes
will have to be construed. Learned counsel differs in respect of the
interpretation placed by the learned Senior Counsel Mr. Aspi Chinoy, as
stated above.
10. Mr. Nitin Dalvi, learned counsel appearing for respondent,
supported the submissions made by the learned Senior Counsel Mr. Aspi
Chinoy. Learned counsel submitted that both the provisions prescribed
under both the Acts must be considered and construed harmoniously and be
held that a period prescribed under the Act of 1955 under Section 28(4)
shall be applicable to the appeals preferred in the High Court arising out of
the judgments and orders passed by the Family Court or the Civil Court.
Learned counsel submitted that with a view to secure speedy settlement of
disputes relating to marriage and family affairs, separate Family Courts
were established pursuant to the Act 66 of 1984. The Act of 1984 is a
procedural law prescribing procedure to be adopted in the Family Courts.
Prior to the enactment of the Act of 1984, all the family matters were
adjudicated under Order XXXIIA of Civil Procedure Code, 1908 before the
concerned District Courts.
11. We have considered the submissions advanced before us,
perused the provisions of the relevant statutes and the judgments cited.
We have also gone through some of the Parliamentary debates in respect of
passing of both the enactments.
12. In the case of Seaford Court Estates, Ltd. vs. Asher2
Lord
Denning stated as under :-
“........Whenever a statute comes up for consideration it must
be remembered that it is not within human powers to foresee
the manifold sets of facts which may arise, and, even if it
were, it is not possible to provide for them in terms free from
all ambiguity. The English language is not an instrument of
mathematical precision. Our literature would be much the
poorer if it were. This is where the draftsmen of Acts of
Parliament have often been unfairly criticised. A judge,
2 1949 (2) All England Report 155
believing himself to be fettered by the supposed rule that he
must look to the language and nothing else, laments that the
draftsmen have not provided for this or that, or have been
guilty of some or other ambiguity.........”
13. The provisions of Section 28 (4) of the Act of 1955 came to be
amended consequent to the suggestion given by the Apex Court in Savitri
Pandey's case (Supra). In its letter and spirit, the views of the Apex Court
in the case of Savitri Pandey are required to be considered. The Apex
Court observed that period of limitation prescribed for filing appeal under
Section 28(4) was apparently inadequate which facilitates frustration of
the marriages by unscrupulous litigant spouses. It is necessary to refer to
the observations of the Apex Court in para 18 of the said judgment here
itself:-
“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 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.”
(Emphasis supplied)
14. Consequent to the observations and suggestions given by the
Apex Court, quoted above, the Parliament amended the provisions of
Section 28(4) of the Act of 1955. Therefore, the purpose and object
behind amending the said Act in the year 2003 is required to be considered.
While amending the provisions, the Parliament was aware of the existence
of the Act of 1984. It is presumed that the Parliament was conscious of
the existence of another statute relating to the subject, prescribing forum
and procedure and period of limitation. Therefore, a harmonious
interpretation which would advance the object and purpose of the
legislation will have to be adopted.
15. As the Act of 1955 was amended by the Parliament in the year
2003, in that sense, the period of limitation of ninety days was prescribed
by a later law which would override the provisions relating to period of
limitation prescribed in the earlier enactment i.e. Act of 1984. The
substantive provision of law was amended at a later stage and the same
shall prevail being later in point of time.
16. Even if both the Acts are considered on certain subjects and
situations to be special and general, even then, as a matter of sound
interpretation and keeping in view the purpose for providing a larger period
of limitation, it must be construed that the appeals arising out of the
judgment and orders passed by the Family Court shall be governed by a
larger period of limitation prescribed under Section 28(4) of the Act of
1955. Any contrary interpretation would frustrate the very object of the
enactment which was made on the suggestion of the Apex Court in the case
of Savitri Pandey.
17. Considering the provisions of the Act of 1984 and the Act of
1955, we do not find that there is an express repeal of the provisions of
Section 28(4).
18. The Apex Court, in para 11, in the case of R. S. Raghunath
vs. State of Karnataka and anr.3
, by referring to earlier judgment in the
case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC
447], observed as under:-
“..... In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram the
scope of non-obstante clause is explained in the following
words: (SCCp.477-78, para 67)
“ A clause beginning with the expression
`notwithstanding anything contained in this Act or in
some particular provision in the Act or in some
particular Act or in any law for the time being in force,
or in any contract' is more often than not appended to a
section in the beginning with a view to give the enacting
part of the section in case of conflict an overriding effect
over the provision of the Act or the contract mentioned
in the non-obstante clause. It is equivalent to saying that
in spite of the provision of the Act or any other Act
mentioned in the non-obstante clause or any contract or
document mentioned the enactment following it will
3 (1992) 1 SCC 335
have its full operation or that the provisions embraced in
the non-obtante clause would not be an impediment for
an operation of the enactment.”
On a conspectus of the above authorities it emerges that the
non-obstante clause is appended to a provision with a view to
give the enacting part of the provision an overriding effect in
case of conflict. But the non-obstante clause need not
necessarily and always be co-extensive with the operative part
so as to have the effect of cutting down the clear terms of an
enactment and if the words of the enactment are clear and are
capable of a clear interpretation on a plain and grammatical
construction of the words the non-obstante clause cannot cut
down the construction and restrict the scope of its operation.
In such cases the non-obstante clause has to be read as
clarifying the whole position and must be understood to have
been incorporated in the enactment by the legislature by way
of abundant caution and not by way of limiting the ambit and
scope of the Special Rules.”
In the above case, in para 7, the Apex Court referred to the
Maxwell on The Interpretation of Statutes (11th Edition, page 168). The
principle of law was 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.”
19. Learned Senior Counsel, Mr. Aspi Chinoy, referred to the
observations made by the Division Bench of Kerala High Court in paras 17
and 20 of the judgment in the case of Viswanathan P. K. vs. Sindhu M.
K.4
, which read as under :
“17. In this case, there is no specific non-obstante clause
available in either statute. But both stipulations occupy the
same field. The dictum above can hence be relied on safely.
The learned counsel contend that the purpose and object of
Marriage Laws Amendment Act 2003 must be taken into
consideration and evidently the Marriage Laws Amendment
Act was enacted in the light of the observations in paragraph
19 of Savitri Pandey (supra) which we have already extracted
4 2009 SCC OnLine Ker 4124
above. The purpose of amending Section 28(4) obviously was
the inconvenience and hardship noted by the Supreme Court
in Savitri Pandey (AIR 2002 SC 591). The Supreme Court
observed that to prefer an appeal before the High Court
against an order passed by the District Court, a period of 30
days may not be sufficient and that such a stipulation is
working out injustice as was revealed in the facts of that case.
The purpose of the Marriage Laws Amendment Act, by which
Section 28(4) of the Hindu Marriage Act was amended, was
obviously to give a larger period of limitation for the parties
aggrieved by the orders passed in matrimonial cases under the
Hindu Marriage Act and the Special Marriage Act. In this
view of the matter, considering the purpose and object of the
Act it is evident that the period of limitation under Section
28(4) of the Hindu Marriage Act which amendment was
brought in with effect from 23-12-2003 must be given
prominence and predominance.
20. Fifthly, the learned counsel contends that the principle
of law is well settled that when a later enactment prescribes a
different period of limitation, such later enactment must be
preferred. Of course, the Hindu Marriage Act was enacted in
1955. The Family Courts Act was enacted in 1984. But the
crucial amendment to Section 28 (4) was enacted later in
2003. The parliament must be presumed to have known the
relevant stipulations of general nature in Section 19(3) while
bringing in the amendment to Section 28(4). In support of this
proposition, the learned counsel relies on the following
observations of the Supreme Court in paragraph 21 of Sarwan
Singh (AIR 1977 SC 265) (Supra):”
20. We may refer to the observations made by the Division Bench
of this Court in paras 20, 21, 24 and 25 of the judgment in the case of
Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi5
, which read as
under:-
“20. Thus, later enactment must prevail over the former. The
same test was approved by the Supreme Court in Shri Ram
Narain vs. Simla Banking and Industrial Co. Ltd., 1956 SCR
603 : AIR 1956 SC 614. On the principle that the later
enactment i.e. Marriage Laws Amendment Act, 2003 must
prevail over the earlier enactment i.e. Family Courts Act, the
larger period of limitation prescribed under section 28(4) of
the Hindu Marriage Act must prevail. On the principle of
equality under Article 14 of the Constitution of India also an
identical period of limitation must be held to be applicable
against all orders appealable under section 28 of the Hindu
Marriage Act. Merely because the order is passed by a
District Court, a larger period of limitation i.e. 90 days and
merely because the order is passed by the Family Court, a
lesser period of limitation of 30 days would be unreasonable
5 2015 (1) Mh.L.J. 954
and will not stand the test of equality. The interpretation must
be such that an identical period of limitation would be
available for orders appealable under section 28 of the Hindu
Marriage Act – whether such order is passed by the District
Court or the Family Court.
21. Thereafter the learned counsel for the applicant also
raised the contention that in view of section 20 of the Family
Courts Act in which there is non-obstante clause, the Family
Court Act would prevail over the Hindu Marriage Act.
The short question that remains to be considered is
whether the non-obstante clauses in section 19 and 20 can
override the applicability of the period of limitation
prescribed for an appeal under section 28. A non-obstante
clause cannot be read mechanically. The totality of the
circumstances have to be taken into account. The precise
intention of the legislature will have to ascertained. Vague and
general non-obstante clauses cannot operate to militate against
specific stipulations made in enactments to meet specific
situations. We have already discussed above why section 28
(4) of Hindu Marriage Act was amended, this circumstance has
to be given due weightage.
24. The first two decisions relied upon by Mr. Jaisinghani
are not applicable to the facts of the present case. The
remaining three decisions which are pressed into service by
Mr. Jaisinghani were rendered by Allahabad High Court,
Madras High Court and Karnataka High Court, whereas the
last two decisions in the case of Milan Tandel and Surekha
Sawant (supra) are by Division Benches of this Court. We
have already observed that the decisions by the Allahabad,
Madras and Karnataka High Courts can at the most only have
persuasive value.
25. We do not find any reason to take a different view from
the one taken by the Division Bench of our Court in Milan
Laxman Tandel's and Surekha Savant's cases. In view thereof,
we reject the preliminary objection and hold that there is no
delay in filing the appeal. In other words, we hold that the
appeal having been filed within 90 days, as contemplated by
section 28(4) of the Hindu Marriage Act, is within limitation.
Hence, there is no merit in this application and the same is
rejected.”
21. Considering the scheme of the enactments of the Act of 1955
and the Act of 1984, more precisely the provisions of limitation and non
obstante provision provided in the Act of 1984, we do not find a clear
inconsistency between the two enactments. It is principle of law that for
giving a overriding effect to a non obstante provision, there should be clear
inconsistency between the two enactments.
22. The principle of law of interpretation further lays down that in
a given case both the enactments could be special statutes dealing with
different situations and there could be non obstante provision in both the
special statutes. In such a situation, the conflict between two enactments
need to be resolved, considering the purpose and object of the Act.
23. It is settled rule of interpretation that if one construction leads
to a conflict, whereas on another construction, two Acts can be
harmoniously constructed, then the later must be adopted. On such
interpretation, the objects of both the enactments would be fulfilled and
there would be no conflict.
24. While interpreting the provisions of the said two enactments, it
needs to be considered that we are a country of vast population, millions of
people face financial hardship for litigating a matter, people have to spend
considerable amount of time, money and energy. The geographical
conditions further make easy access to justice difficult and taking into
consideration all these circumstances, coupled with the peculiar situation
faced by the parties while litigating matrimonial, family related issues, the
Apex Court made certain observations in the case of Savitri Pandey which
suggestion was accepted by the Parliament and accordingly the law was
amended.
25. We are convinced of the interpretation put up by the learned
Senior Counsel that if the two statutes are construed and understood in its
proper sense, then there is no conflict between the two laws and, therefore,
no question arises of invoking non obstante provision in Section 20 of the
Act of 1984. The enactment of the Act of 1984 or non obstante provision
in Section 20 is not intended to impliedly repeal provisions made in the
Act of 1955. The Act of 1984 provides for a special forum relating to
matrimonial disputes and with that view, special procedure was devised for
expeditious adjudication of the cases. It is in that context the non obstante
provision of Section 20 is required to be construed.
26. A non obstante clause must be given effect to the extent
Parliament intended and not beyond the same. It may be used as a
legislative device to modify the scope of provision or law mentioned in
the said clause. The non obstante clause would throw some light as to the
scope and ambit of the enacting part in case of its ambiguity. But if the
enacting part is clear, its scope cannot be cut down or enlarge by resorting
to non obstante clause.
27. In our view, considering the scheme of the Act of 1984 and the
object and purpose for its enactment, largely the Act is procedural in
nature. The Act of 1984 provides for special forum to decide matrimonial
related disputes and prescribes for special rules and procedure. In this
context, the non obstante provision in Section 20 is required to be
construed.
28. We are of the view that considering the scheme of both the
enactments and the purpose behind amending the provisions of Section 28
(4) of the Act of 1955, it would not be appropriate to apply different period
of limitation, one in case of orders passed by the Family Courts and in
another by the regular Civil Courts. Such an approach would frustrate
very purpose of legislation.
29. For the reasons stated above, we hold that for an appeal filed
under sub-section (1) of Section 19 of the Family Courts Act, 1984, period
of limitation prescribed under sub-section (4) of Section 28 of the Hindu
Marriage Act, 1955 shall apply.
30. Reference is answered accordingly.
31. We record our appreciation for valuable assistance rendered to
us by the Amicus Curiae, learned Senior Counsel Shri Aspi Chinoy.
We also appreciate the assistance rendered to us by learned counsel
Shri Murtaza Najmi.
32. We direct the Registry to place the matter before the
appropriate court.
(NARESH H. PATIL,J.)
(R. D. DHANUKA, J.)
(SMT. SADHANA S. JADHAV,J.)
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