The Gauhati High Court recently granted an application for condonation of 21-day delay in appealing a family court order. The court noted that the 21-day delay, which had already exceeded the 30-day statute of limitations set forth in the family court’s act, could not be considered “barred by limitation.”
A division bench consisting of Justice Sanjay Kumar Medhi and Justice Kakheto Sema noted that the delay in this case is 21 days beyond the limitation period, which the court does not classify as “inordinate”.
The Hon’ble Division Bench said “In view of the aforesaid conspectus and also by referring to the views expressed by the Full Bench of the Hon’ble Bombay High Court as mentioned above, we are of the considered opinion that the delay of 21 days which has been calculated by counting the same with a period of limitation as 30 days may not even come into the way of preferring the appeal in the form of “barred by limitation”. In any case, we are of the view that the delay, not being inordinate and there is an explanation provided which is acceptable, the same is required to be condoned which we accordingly do,”.
Additionally, the court noted that Section 28 of the Hindu Marriage Act of 1955 (HMA) was the procedure to follow in order to appeal a district judge’s ruling prior to the enactment of the Family Courts Act of 1984 (FC Act). A deadline of “30 days” was specified for this kind of appeal.
Following the Supreme Court’s decision in Savitri Pandey v. Prem Chandra Pandey (2002), Section 28(4) HMA was revised in 2003, extending the limitation period from 30 to 90 days. It is noted that when the FC Act was enacted in 1984, a consistent limitation period of 30 days was established, aligning with Section 28 of HMA.
The court noted that following the Savitri Pandey decision, while the HMA was amended, the FC Act was not, resulting in an inconsistency.
According to the Court, not all districts in Assam have access to Family Courts; in those that do, marriage issues are decided in accordance with the FC Act.
Conversely, the District Judge’s court handles the adjudication of marital issues under the HMA in areas where the Family Court is unavailable.
The Court specifically indicated, “The litigants, as such, are not left with any option to choose the forum and it depends as to where the cause of action would arise. That being the position, it would be prejudicial to a litigant in the aspect of preferring an appeal from a judgment passed by the Family Court vis-à-vis a litigant preferring an appeal from a judgment passed by a District Judge on the point of limitation,”.
The bench, after reflecting on the guidance provided by the apex court in Savitri Pandey regarding “litigants coming from remote districts to the High Court to file an appeal,” articulated that it is “preferable for a consistent period of limitation to be established.”
The Court was considering an application submitted pursuant to Section 5 of the Limitation Act, 1963, seeking the condonation of a delay of 21 days in the filing of the associated appeal against the judgement rendered on June 12, 2024, and the order issued on June 14, 2024, by the Principal Judge of Family Court -2, Kamrup (Metro).
The Counsel representing the applicant argued that the delay in this particular matter is merely 21 days, and the justifications for this delay have been sufficiently articulated in the application, particularly in paragraphs 13, 14, and 15. The present appeal has been submitted concerning a judgement rendered by the Family Court in a case initiated by the applicant seeking annulment of the marriage.
It was contended that although the contested judgement was rendered on June 14, 2024, and the request for a certified copy was submitted on June 15, 2024, the applicant, residing ordinarily in the State of Meghalaya, was unable to retrieve the certified copy before July 18, 2024. It was further asserted that, in relation to the Family Court, the parties involved must appear in person to obtain certified copies.
The Counsel for the respondent argued that although the certified copy was requested on June 15, 2024, and that date was designated for the necessary stamps and folios, the deposit occurred only on July 18, 2024, indicating the applicant’s negligence.
The delay must be explained not from the date of expiration of the limitation period, but from the date when the limitation period commences. The argument presented indicates that insufficient cause has been cited and that there is suppression of material facts, necessitating the dismissal of the current petition.
The Court relied on the Supreme Court’s judgement in Collector, Land Acquisition, Anantnag v. Katiji (1987) 2 SCC 107, which established that there is no stringent obligation to justify each day’s delay.
The Hon’ble Division Bench said , “In the instant case, the delay is of 21 days which, in the comprehension of this Court cannot be termed to be an inordinate one. So far as the reasons cited to explain the said delay, it appears that there is some inconsistencies in the pleadings of the application regarding the date when the certified copy of the impugned judgment was made available. The learned counsel for the applicant has explained the position that the pleadings in paragraph 14 are not properly worded and it is not in dispute that the certified copy was received on 18.07.2024, as would reveal from the certified copy itself which is annexed to the memo of appeal,”.
The Court further referenced a Full Bench judgement of the Bombay High Court in Shivram Dodanna Shetty v. Sharmila Shivram Shetty (2017), which determined that the limitation period specified in Section 28(4) of the HMA is applicable to appeals filed under Section 19(1) of the Family Courts Act. The Bombay High Court said that it would be inappropriate to impose differing limitation periods for decisions issued by Family Courts compared to those issued by normal Civil Courts, as such a practice would “frustrate the very purpose of legislation.”
The bench determined that the delay in this instance was not excessive and would not preclude the appeal, so granting the plea for condonation of delay.
The instance Case No.: I.A. (Civil)/2463/2024