Aspi Chinoy is amicus as Bombay HC seeks harmonious interpretation of limitation in marriage laws

In a not too common three-judge decision, the Bombay High Court has sought a harmonious construction in connection with the the limitation periods prescribed by the Hindu Marriage Act of 1955, and the Family Courts Act of 1984. A Bench of Justices Naresh Patil, RD Dhanuka and S Jadhav held that a Hindu can only re-marry 90 days after the decree dissolving his or her marriage, provided no appeal has been made against that decree..As first reported in the The Hindustan Times, the decision came about after a Thane resident filed an appeal against a divorce decree granted by the family court in Thane..The decree was issued on April 22, 2013 on a petition filed by his wife. The husband filed an appeal against the decree on July 3, 2013. However, his former wife re-married six days after the appeal was filed, that is eighty days after the passing of the divorce decree..Now under S. 28(4) of the Hindu Marriage Act, an appeal can be filed within 90 days of the date of decree while under S. 19(3) of the Family Courts Act, the appeal must be filed within 30 days. The question that hence arose before Justices Abhay Oka and Ajay Gadkari was which limitation period was applicable in the present case..The husband’s counsel, Zenobia Irani, argued that it would be the Hindu Marriage Act that would be applicable since the same had been laid down by a Division bench of the Bombay High Court. Irani was referring to an order passed in April of 2007 [pdf], by Bench of Justices JN Patel and AA Sayed. The said Division Bench had held that the provisions of the Hindu Marriage Act would apply, and not that provided by the Family Courts Act..The Bench of Oka and Ajay Gadkari JJ however, observed that since the appeal was filed under the Family Courts Act, only the limitation period mentioned under this particular Act would be applicable..“13. A right of Appeal provided under subsection (1) of section 19 of the said Act of 1984 is distinct and different from a right of Appeal provided under the said Act of 1955. Thus, it appears to us that the period of limitation provided under subsection (4) of section 28 of the said Act of 1955 will govern the appeals under subsection (1) and (2) of section 28 of the said Act of 1955. On the other hand, an appeal under subsection (1) of section 19 of the said Act of 1984 will be governed by the limitation specifically provided in subsection (3) of section 19 of the said Act of 1984.”.However, since this was in contradiction to the 2007 order, on December 10, 2014 [pdf] the bench referred the matter to the larger bench. The question that was to be answered was:.“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?”.Before the three-judge Bench, amicus and senior counsel Aspi Chinoy, argued that the provisions prescribed under both the Acts must be considered and construed harmoniously and that a period prescribed under the Act of 1955 under Section 28(4) shall be applicable to the appeals preferred in the High Court..Advocate Nitin Dalvi appeared for the respondents and seconded these arguments..Counsel Zenobia Irani chose to differ. Her contention was that discriminatory type of provisions are prescribed relating to two different forums considering the subject matter of appeals prescribed. Therefore, there was no need to assimilate these provisions, but instead use them in separate circumstances as the case may be..Counsel Murtaza Najmi, appeared suo motu, and argued that the Family Courts Act would apply in the present case, since the appeal arose out of the provisions of the Family Courts Act..The Bombay High Court did not agree..Relying heavily upon the Apex Court’s ruling in the case of Savitri Pandey, the three-judge Bench noted that the Supreme Court had 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.”.In fact, following the decision in Savitri Pandey, the Parliament amended the Hindu Marriage Act to increase the limitation period for filing an appeal from thirty days to ninety days..Relying on the apex court’s decisions, as well as those passed by the High Courts of Bombay, and Kerala, the three judge Bench observed that,.“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.”