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Seema Verma v/s Prakash Kumar

    Civil Misc. Appeal No. 616 of 2015

    Decided On, 11 March 2015

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE CHIEF JUSTICE MR. SUNIL AMBWANI & THE HONOURABLE MR. JUSTICE PRAKASH GUPTA

    For the Appellant: Rahul Kamwar, Advocate. For the Respondent: ----------



Judgment Text

Sunil Ambwani, A.C.J.

1. We have heard learned counsel appearing for the appellant.

2. This Civil Misc. Appeal, under Section 28 of the Hindu Marriage Act, 1955 (for short, 'the Act'), arises out of the order passed by the Family Judge, Bharatpur dated 11.12.2014, by which he had decreed the suit of the appellant-wife for divorce under Section 13 of the Act, filed on 06.05.2013, on the ground of cruelty. He has, in th

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same judgment in paragraph 20, rejected the prayer for maintenance pendente lite, and permanent alimony on the ground that an application under Section 125 of the Cr.P.C., filed by her, is pending.3. The office has reported the present appeal to be beyond time by 22 days, on the ground that under Section 19(3) of the Act, the limitation for filing an appeal is 30 days.4. Learned counsel appearing for the appellant-wife has objected to the report on the ground that the relief for divorce was claimed under the substantive law governing the parties, namely; the Hindu Marriage Act, 1955, which provides 90 days under Section 28(4) to file an appeal against the decree.5. It is submitted that in view of the judgment of the Supreme Court in Savitri Pandey v. Prem Chandra Pandey [AIR 2002 SC 591] rendered on 08.01.2002, in which a strong recommendation was made in paragraph 20, to increase the limitation period from 30 to 90 days, on the ground that the short period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate by the unscrupulous litigant spouses, and considering the vast country like ours, the distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, the period of limitation of 30 days is insufficient and inadequate. Taking cue, the Parliament amended the Act on 23.12.2003, increasing the period of limitation under Section 28(4) of the Hindu Marriage Act from 30 to 90 days.6. It is submitted that the issue of limitation provided under the substantive law governing the parties namely, Section 28 (4) of the Act, and the procedural law prescribed in the Act, under which a divorce suit is filed in the Family Court providing for appeal within 30 days under Section 19(3), has been resolved by many High Courts in favour of the limitation provided under Section 28(4) of the Hindu Marriage Act.7. The Bombay High Court in Civil Application No. 448/2014 Mrs. Sonia Kunwar Singh Bedi v. Mr. Kunwar Singh Bedi in Family Court Appeal No.142/2014, following its earlier two judgments in Milan Laxman Tandel v. Laxman Keshav Tandel in Civil Application No.88/2007 in F.C.A. No.8906/2007 decided by the Division Bench on 25.04.2007 and Mrs. Surekha Arun Sawant v. Mr. Arun Baban Sawant in Family Court Appeal No.23/2011 decided on 26.08.2011, held, disagreeing with the decisions of Allahabad High Court, Madras High Court and Karnataka High Court, that appeal having been filed within 90 days under Section 28(4) of the Act, was within limitation.8. It is submitted that a similar view has been taken by the Gujarat High Court in Dalsukhbhai Parsottambhai Patel v. Umaben Jorabhai Patel in Appeal (Stamp) No.1741/2009 decided on 12.05.2009.9. Prima facie, we are persuaded with the reasoning, and are inclined to take the same view as has been taken by the Bombay High Court and Gujarat High Court, that the substantive law will regulate the filing of the appeal, and that the Hindu Marriage Act, 1955 after its amendment which is a subsequent event, providing for 90 days time for filing appeal under Section 28(4) of the Act, will be the period of limitation, within which an appeal can be filed against the judgment in the proceedings for the relief under the Hindu Marriage Act, 1955.10. We also, prima facie, find substance in the contention that the pendency of an application under Section 145 Cr.P.C. by the wife for maintenance, cannot be a ground to refuse the directions for permanent alimony at the time of finally deciding a suit for divorce.11. Issue notice to the respondents on the question of the limitation in filing the appeal. The notices will also be issued on the appeal as well as stay application for grant of maintenance during the pendency of the appeal, and for permanent alimony. The notices will be sent by ordinary process as well as by speed post, returnable in four weeks.12. List again on 28.04.2015.Appeal disposed of.
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