Gauhati High Court
Refill Star Pakyntein vs Jaya Arora on 30 January, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/14
GAHC010156962024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/2463/2024
REFILL STAR PAKYNTEIN
S/O. D. EARLY PEACE, R/O. MAWLAI, MUDATBAKI, P.O. PHUDMURI, DIST.
EAST KHASI HILLS, MEGHALAYA.
VERSUS
JAYA ARORA
D/O. DARSHAN LAL ARORA, R/O. KKB ROAD, CHENIKUTHI, H/O NO. 51,
P.S. CHANDMARI, GHY-781003, DIST. KAMRUP (METRO), ASSAM.
Advocate for the Petitioner : MS. P CHAKRABORTY, MS. A DAS
Advocate for the Respondent : MS P TALUKDAR,
Linked Case :
XXXXXXX
VERSUS
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Page No.# 2/14
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BEFORE
Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI
Hon’ble MR. JUSTICE KAKHETO SEMA
Advocate for the applicant : Ms. P. Chakraborty
Advocate for the respondent : Ms. P. Talukdar.
Date of hearing : 22.01.2025
Date of judgment : 30.01.2025
JUDGMENT & ORDER
(S.K. Medhi, J.)
The instant application has been filed under Section 5 of the Limitation
Act, 1963 for condonation of delay of 21 days in filing the connected appeal
against the judgment dated 12.06.2024 and order dated 14.06.2024 passed in
F.C.(Civil) No. 427/2011 by the learned Principal Judge, Family Court -2, Kamrup
(Metro).
2. We have heard Ms. P. Chakraborty, learned counsel for the applicant. We
have also heard Ms. P. Talukdar, learned counsel for the respondent.
3. Ms. Chakraborty, the learned counsel for the applicant has submitted that
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the delay in the instant case is only 21 days and the reasons for the same have
been adequately pleaded in the application, more specifically paragraphs 13, 14
and 15 thereof. It is submitted that the instant appeal has been preferred qua a
judgment passed by the learned Family Court in a suit filed by the applicant for
annulment of the marriage. It is submitted that though the impugned judgment
was passed on 14.06.2024 and the certified copy was applied for on
15.06.2024, due to the fact that the applicant is ordinarily residing in the State
of Meghalaya, he could not come to collect the certified copy prior to
18.07.2024. She has submitted that in matters pertaining to the Family Court,
the parties are required to present in person for collecting certified copies. She
has also clarified that the pleadings in paragraph 14 of the application are not
properly worded and the actual meaning is that the certified copy could be
collected on 18.07.2024.
4. By relying upon the judgment of the Hon’ble Supreme Court in the case of
Sridevi Datla vs. Union of India and Ors. reported in (2021) 5 SCC 321,
the learned counsel for the applicant has submitted that there is a distinction of
cases where the delay is not inordinate and cases where the delay is of few
days and accordingly, the approach of the Court should be slightly different. She
accordingly submits that the delay be condoned and the application be allowed.
5. Per contra, Ms. Talukdar, the learned counsel for the respondent has
submitted that the application suffers from suppression of material facts. It is
submitted that while the certified copy was applied on 15.06.2024 and the same
date was notified for requisite stamps and folios, the same was deposited only
on 18.07.2024 and thereby the negligence of the applicant becomes apparent.
She has submitted that the judgment being of 12.06.2024, it is from that date
from which limitation would start. She submits that in paragraph 14 of the
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application, misleading statements have been made.
6. The learned counsel for the opposite party has submitted that the delay is
required to be explained not from the date of expiry of limitation but from the
date when the limitation starts and in this connection, she has relied upon the
case of State of Madhya Pradesh vs. Ram Kumar Choudhury reported in
2024 INSC 932. In the said case, the Hon’ble Supreme Court had dismissed
the SLP filed by the State against an order whereby delay was refused to be
condoned.
7. She has also relied upon the case of Balwant Singh vs. Jagadish Singh
reported in (2010) 8 SCC 685 wherein the aspect of a party approaching the
Court without clean hands has been highlighted. In the said case it was held
that no sufficient causes could be shown. Reliance has also been made to the
case of All India EPF Staffs Federation vs. Union of India [SLP (C) No.
13330/ 2024 Judgment dated 25.06.2024] to contend that suppression of
materials facts has to be dealt with harshly. She has also relied upon the case of
H. Guruswamy and Ors. A. Krishnaiah reported in 2025 INSC 53 to
contend that while considering a delay condonation application, the merit of the
main case is not required to be based upon. Reliance has also been placed upon
the case of Pathapati Subba Reddy vs. the Special Deputy Collector
reported in 2024 INSC 286 wherein a similar view has been taken and the
following has been laid down.
“26. On a harmonious consideration of the provisions of the law, as
aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be
an end to litigation by forfeiting the right to remedy rather than the
right itself;
(ii) A right or the remedy that has not been exercised or availed of
Page No.# 5/14for a long time must come to an end or cease to exist after a fixed
period of time;
(iii) The provisions of the Limitation Act have to be construed
differently, such as Section 3 has to be construed in a strict sense
whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach,
justice-oriented approach or cause of substantial justice may be
kept in mind but the same cannot be used to defeat the substantial
law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the
delay if sufficient cause had been explained, but that exercise of
power is discretionary in nature and may not be exercised even if
sufficient cause is established for various factors such as, where
there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does
not mean that others are also entitled to the same benefit if the
court is not satisfied with the cause shown for the delay in filing the
appeal;
(vii) Merits of the case are not required to be considered in
condoning the delay; and (viii) Delay condonation application has to
be decided on the parameters laid down for condoning the delay
and condoning the delay for the reason that the conditions have
been imposed, tantamounts to disregarding the statutory provision.”
8. The learned counsel for the respondent accordingly submits that no
sufficient cause has been cited and there being suppression of material facts,
the instant petition is required to be dismissed.
9. The rival submissions have been duly considered and the materials placed
before this Court have been carefully examined.
10. It is a settled position of law that a pragmatic and justice oriented
approach is required in adjudication of such an application for condonation of
delay. In the case of Esha Bhattacharjee Vs Managing Committee of
Raghunathpur Nafar Academy and Ors. reported in (2013) 12 SCC 649,
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the Hon’ble Supreme Court has laid down certain principles to be followed in
deciding a delay condonation application which are extracted herein below:-
“21. From the aforesaid authorities the principles that can broadly be
culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for condonation of
delay, for the courts are not supposed to legalise injustice but are obliged
to remove injustice.
21.2. (ii) The terms “sufficient cause” should be understood in their
proper spirit, philosophy and purpose regard being had to the fact that
these terms are basically elastic and are to be applied in proper
perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical
considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay
but, gross negligence on the part of the counsel or litigant is to be taken
note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of
delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not
affect public justice and cause public mischief because the courts are
required to be vigilant so that in the ultimate eventuate there is no real
failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the
conception of reasonableness and it cannot be allowed a totally unfettered
free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of
short duration or few days, for to the former doctrine of prejudice is
attracted whereas to the latter it may not be attracted. That apart, the
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first one warrants strict approach whereas the second calls for a liberal
delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its
inaction or negligence are relevant factors to be taken into consideration.
It is so as the fundamental principle is that the courts are required to
weigh the scale of balance of justice in respect of both parties and the
said principle cannot be given a total go by in the name of liberal
approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in
the application are fanciful, the courts should be vigilant not to expose the
other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud,
misrepresentation or interpolation by taking recourse to the technicalities
of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and
the approach should be based on the paradigm of judicial discretion which
is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude.”
11. The Hon’ble Supreme Court in the landmark case of Collector, Land
Acquisition, Anantnag v. Katiji reported in (1987) 2 SCC 107 has laid
down that there is no strict requirement of explaining each day’s delay.
12. On a reading of the case laws governing the field, the following principles
(not exhaustive) can be taken as guidelines for deciding a petition for
condonation of delay –
i. The power vested upon a Court to exercise such jurisdiction is essentially
a discretionary one. The natural corollary is that there has to be an
application of a judicious mind by taking into consideration all the relevant
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factors.
ii. The relevant factors which are required to be taken into consideration
would include the conduct of the party as discretion can be exercised only
by balancing the equities.
iii. The length / duration of delay and the explanation put forward are both
relevant considerations for exercise of such discretion.
iv. The Court would generally proceed with a liberal, pragmatic and
justice-oriented approach with such petition as substantial justice should
not be allowed to be defeated by mere technicalities.
v. At the same time, the Court would also not lose sight of the fact that a
valuable right has accrued on the other party and such right should not be
interfered with lightly. Therefore, though there may not be a requirement
to seek a day-to-day explanation, the explanation for the delay should be
a reasonable one which is acceptable to a man of ordinary prudence.
13. 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.
14. There is an allegation by the opposite party of suppression of material
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facts qua the aspect of the date of obtaining the certified copy of the impugned
judgment. The aspect of suppression of material facts is required to be
examined from the point of view as to whether by such suppression, the party
would try to get undue advantage. It is also noted that dehors the aspect of the
inconsistency of the date of receipt of the certified copy, the delay in preferring
the appeal is only 21 days.
15. So far as the case laws relied upon by the opposite party, it is noted that
in the case of Ramkumar Choudhury (supra), the delay was seen to be
grossly inordinate of 5 years 10 months 16 days. Similarly, in the case of
Balwant Singh (supra), the delay was of 778 days and in the case of H.
Guruswamy (supra) the delay was of 2200 days. So far as the case of
Pathapati Subba Reddy (supra) is concerned, the aspect of having a justice
oriented approach has been reiterated by the Hon’ble Supreme Court.
16. There is another aspect of the matter which is required to be taken into
consideration. Before the enactment of the Family Courts Act, 1984 (herein after
F.C. Act), an appeal against a decree passed by the District Judge under the
Hindu Marriage Act, 1955 (herein after H.M. Act) would have to be filed under
Section 28 of the said Act. The period of limitation prescribed for such appeal
was 30 days. The aforesaid issue was the subject matter in the case of Savitry
Pandey v. Prem Chandra Pandey reported in AIR 2002 SC 591 before the
Hon’ble Supreme Court. The Apex Court, after noticing the inadequate period of
limitation prescribed under the H.M. Act as litigants from far flung districts
would suffer prejudice while approaching the High Court which the appellate
forum had made the following observations which are extracted herein below:
“18. At this stage we would like to observe that the period of
limitation prescribed for filing the appeal under Section 28(4) is
Page No.# 10/14apparently inadequate which facilitates the frustration of the
marriages by the unscrupulous litigant spouses. In a vast country
like ours, the powers under the Act are generally exercisable by the
District Court and the first appeal has to be filed in the High Court.
The distance, the geographical conditions, the financial position of
the parties and the time required for filing a regular appeal, if kept
in mind, would certainly show that the 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 as appears to have been
done in the instant case. We are of the opinion that 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.
Appropriate legislation is required to be made in this regard. We
direct the Registry that the copy of this judgment may be forwarded
to the Ministry of Law & Justice for such action as it may deem fit to
take in this behalf.”
17. It may be noted that pursuant to the said judgment of Savitri Pandey
(supra), Section 28(4) of the H.M. Act was amended in the year 2003 and
period of limitation was extended from 30 to 90 days.
18. As mentioned above, after enactment of the F.C. Act, the provision to
prefer appeal has been given in Section 19 and as per sub-section (3), the
period of limitation has been prescribed as 30 days. It is obvious that while
making the said enactment, a consistency was maintained with the aspect of
limitation vis-a-vis Section 28 of the H.M. Act (before the amendment).
However, as noted above, pursuant to the judgment of Savitri Pandey (supra)
which was in the context of the H.M. Act, while the period of limitation has been
amended from 30 to 90 days, a corresponding amendment in Section 19 (3) of
the F.C. Act has not been carried out.
19. So far as the State of Assam is concerned, Family Courts are not available
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in all the districts and it is only in those districts where Family Courts are
available that matrimonial disputes are adjudicated under the F.C. Act. On the
other hand, in the districts where Family Court is not available, the Court of the
District Judge adjudicates matrimonial disputes under the H.M. Act. 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.
Therefore, in the context of the direction of the Hon’ble Supreme Court in the
case of Savitri Pandey (supra), wherein the aspect of the litigants coming
from far flung districts to the High Court to prefer an appeal has been taken into
consideration, it is desirable that a uniform period of limitation be prescribed.
20. The Hon’ble Supreme Court in the case of K.A. Abdul Jaleel vs. T.A.
Sahida reported in AIR 1997 Ker 269 has clarified that the F.C. Act aims to
provide a unified forum for resolving family disputes effectively without
undermining personal laws like the H.M. Act.
21. The aforesaid issue had also arisen before a Full Bench of the Bombay
High Court in the case of Shivram Dodanna Shetty Vs. Sharmila Shivram
Shetty reported in 2017(1) Mh.LJ (Judgment dated 01.12.2016). The
following observations would be relevant.
(13.) The provisions of Section 28(4) of the Act of 1955 came to be
amended consequent to the suggestion given by the Apex Court in
Savitri Pandey‘s case (Supra). In its letter and spirit, the views of the
Apex Court in the case of Savitri Pandey are required to be
considered. The Apex Court observed that period of limitation
prescribed for filing appeal under Section 28(4) was apparently
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inadequate which facilitates frustration of the marriages by
unscrupulous litigant spouses. It is necessary to refer to the
observations of the Apex Court in para 18 of the said judgment here
itself:-
“18. ….”
(14.) Consequent to the observations and suggestions given by the
Apex Court, quoted above, the Parliament amended the provisions
of Section 28(4) of the Act of 1955. Therefore, the purpose and
object behind amending the said Act in the year 2003 is required to
be considered. While amending the provisions, the Parliament was
aware of the existence of the Act of 1984. It is presumed that the
Parliament was conscious of the existence of another statute
relating to the subject, prescribing forum and procedure and period
of limitation. Therefore, a harmonious interpretation which would
advance the object and purpose of the legislation will have to be
adopted.
(15.) As the Act of 1955 was amended by the Parliament in the year
2003, in that sense, the period of limitation of ninety days was
prescribed by a later law which would override the provisions
relating to period of limitation prescribed in the earlier enactment
i.e. Act of 1984. The substantive provision of law was amended at a
later stage and the same shall prevail being later in point of time.
(16.) Even if both the Acts are considered on certain subjects and
situations to be special and general, even then, as a matter of
sound interpretation and keeping in view the purpose for providing a
larger period of limitation, it must be construed that the appeals
arising out of the judgment and orders passed by the Family Court
shall be governed by a larger period of limitation prescribed under
Section 28(4) of the Act of 1955. Any contrary interpretation would
frustrate the very object of the enactment which was made on the
suggestion of the Apex Court in the case of Savitri Pandey.
(24.) While interpreting the provisions of the said two enactments, it
needs to be considered that we are a country of vast population,
millions of people face financial hardship for litigating a matter,
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people have to spend considerable amount of time, money and
energy. The geographical conditions further make easy access to
justice difficult and taking into consideration all these circumstances,
coupled with the peculiar situation faced by the parties while
litigating matrimonial, family related issues, the Apex Court made
certain observations in the case of Savitri Pandey which suggestion
was accepted by the Parliament and accordingly the law was
amended.
(28.) We are of the view that considering the scheme of both the
enactments and the purpose behind amending the provisions of
Section 28 (4) of the Act of 1955, it would not be appropriate to
apply different period of limitation, one in case of orders passed by
the Family Courts and in another by the regular Civil Courts. Such an
approach would frustrate very purpose of legislation.
(29.) For the reasons stated above, we hold that for an appeal filed
under sub-section (1) of Section 19 of the Family Courts Act, 1984,
period of limitation prescribed under sub-section (4) of Section 28 of
the Hindu Marriage Act, 1955 shall apply.
22. We have noted that the Full Bench of the Bombay High Court in the
aforesaid judgment of Shivram Dodanna Shetty (supra) has also relied upon
a Division Bench of the said Court in the case of Sonia Kunwar Singh Bedi v.
Kunwar Singh Bedi, reported in 2015 (1) Mh.L.J. 954 wherein the aspect of
equality under the law has also been taken into consideration. It has been laid
down that on the principle of equality under Article 14 of the Constitution of
India also, an identical period of limitation is required to be made applicable
against all orders appealable under section 28 of the H.M. Act vis-à-vis an order
appealable under Section 19 of the F.C. Act. It has been held that merely
because the order is passed by a District Court, a larger period of limitation i.e.
90 days and merely because the order is passed by the Family Court, a lesser
period of limitation of 30 days would be unreasonable and will not stand the test
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of equality.
23. By following the Full Bench decision of the Bombay High Court, a Division
Bench of the Gujarat High Court in the case of Chaudhary Chetnaben
Dilipbhai vs. Chaduhary Dilipbhai Lavjibhai (judgment dated 17.01.2023)
reported in 2023(1) Civil Court Cases 562 has reiterated that the time limit
for filing an appeal challenging a judgment or order of Family Court arising out
of a matrimonial dispute is 90 days.
24. 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.
25. The application accordingly stands allowed.
26. The appeal is accordingly directed to be registered and be listed for
admission.
JUDGE JUDGE Comparing Assistant