SHIVRAM DODANNA SHETTY Vs. SHARMILA SHIVRAM SHETTY
LAWS(BOM)-2016-8-318
HIGH COURT OF BOMBAY
Decided on August 26,2016

Shivram Dodanna Shetty Appellant
VERSUS
Sharmila Shivram Shetty Respondents

JUDGEMENT

N.H. Patil, J. - (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 and 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?" 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.
(2.) 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 sur 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."
(3.) 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.";


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