The Division Bench of Rajasthan High Court at Jaipur comprising of Justices Mohammad Rafiq and Narendra Singh Dhaddha corrected a defect which had been pointed out in view of Section 19(3) of the Family Court Act, 1984 which sets a period of limitation for preferring an appeal against judgment of Family Court as 30 days wherein. The present appeal had been filed with a delay of 57 days.
The reason cited for the same by the appellant was on grounds of order in Smt. Anita Chaudhary v. Rajesh Chaudhary wherein, the court took note of Section 28(4) of the Hindu Marriage Act, 1955 which prescribes a period of 90 days for filing the appeal against the order/decree of the Family Court passed under provisions of the Hindu Marriage Act, 1955.
The amendment to extend the period of limitation made to the Hindu Marriage Act, 1955 was on the suggestion of the Apex Court in the case of Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591. It was observed herein that the period of limitation stipulated for filing an appeal under Section 28(4) was insufficient and facilitated the frustration of marriages by “unscrupulous litigant spouses”.
The Supreme Court stated in this regard that,
“The distance, the geographical conditions, the financial position of the parties and the time 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. 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. The Supreme Court further observed that appropriate legislation is required to be made in this regard. The Registry of the Supreme Court was directed to forward a copy of that judgment to the Ministry of Law and Justice for such action as it may deem fit to take in this behalf.”
The court thereby concluded saying, “Since this appeal has been filed within 90 days which is prescribed a period of limitation under Section 28(4) of the Act of 1955, the same is held to be within limitation.” The Court also directed the registry of the High Court to treat all such appeals against order/decree of the Family Court filed within 90 days.
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