Shivram Dodanna Shetty v.

Sharmila Shivram Shetty, 2016 SCC OnLine Bom 9844

S. No. Text remark

1. 24.08.2021

Shivram Dodanna Shetty v. Sharmila Shivram Shetty

[2016 SCC OnLine Bom 9844]

Bombay High Court (Full bench) on 01.12.2016

(1/n)

2. The court had to decide ‘Whether an appeal u/s 19 of the Family

Courts Act, 1984 (FCA) will be governed by the period of limitation
u/s 19 or whether the period of limitation provided u/s 28 of the
Hindu Marriage Act, 1955 (HMA) will apply.
(2/n)

3. Section 19 (FCA) prescribes limitation period as 30 days where as

section 28 (HMA) prescribes limitation period as 90 days.
(3/n)

4. Under the Family Courts Act, 1984, the state government(s) is to

establish family court(s) in the said state to have exclusive
jurisdiction upon ‘suit and proceedings’ in relation to marriage of the
parties.
(4/n)

5. Therefore, the general implication from the said sections is that, in

areas where family courts have been established, the period of
limitation (as per section 19 FCA) is 30 days.
(5/n)

6. But in areas where family courts are yet to be established and the
jurisdiction is exercised by regular civil courts, the period of
limitation (as per section 28 HMA) is 90 days.
(6/n)

7. The HMA 1955 as amended in 2003 to bring the act in consonance

with the observations of the SC in Savitri Pandey vs. Prem Chandra
Pandey [AIR 2002 SC 591], : 30-day limitation period under section
28 HMA was highly insufficient therefore a 90-day limitation was
prescribed.
(7/n)

8. Observation: Considering the purpose and objective of the 2003

amendment and the principle of harmonious construction, the
 period of limitation of 90 days (2003 amendment) would override
the provisions of limitation period prescribed in the earlier
enactment (FCA 1984).
(8/n)

9. Re-The general non-obstante clause (u/s 20) of the FCA: if the words
of the enactment are capable of a clear interpretation, then 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.
(9/n)

10. No need to invoke the non-obstante clause as there is no

inconsistency b/w section 28 and 19.
(10/n)

11. Held: The period of limitation for appeals under section 19 FCA is 90
days which will now be inconsonance with appeals under HMA (u/s
28) for order passed by regular civil court.
(11/n)

12. The substantive provision of law was amended at a later stage (i.e.
HMA's 2003 amendment) and the same shall prevail being later in
point of time.
(12/n)