A division bench of the Jharkhand High Court granted divorce to the husband, not on the ground of cruelty by wife, but on the ground of irretrievable breakdown of marriage.
From Para 21,
21. We, therefore, proceed to answer this question as this issue has not yet been decided by this Court. We may not have to labour hard in this regard since the Full Bench of Bombay High Court has squarely dealt with the same issue concerning applicability of section 19(3) of the Family Courts’ Act, 1984 and section 28(4) of the Hindu Marriage Ac, 1955 on the period of limitation governing the filing of an appeal before the High Court from the suit s instituted under Hindu Marriage Act concerning the rights of the parties such as, dissolution of marriage, restitution of conjugal right, declaration of a marriage as null and void, judicial separation, etc.
This view has been further followed by the Allahabad High Court in the case of Smt. Gunjan v. Praveen ( Supra), Rajasthan High Court in the case of Kuldeep Yadav v. Anita Yadav ( and Delhi High Court in the cases of R.R.D. (Supra) and DC (Supra) cited by the learned counsel for the appellant. The
rationale behind taking such a view is that the Act of 1984 provides for a special forum relating to matrimonial dispute and for that, special procedure was devised for expeditious adjudication of the case. Provisions of section 20 thereof containing the obstante clause has to be construed in that context, whereas Parliament being conscious of the period of limitation of 30 days prescribed under section 19(3) of Family Courts’ Act, 1984 chose to make suitable amendment in section 39(4) of the Special Marriage Act, 1954 and section 28(4) of the Hindu Marriage Act, 1955 by enlarging the period of limitation from 30 days to 90 days keeping into account the observations made by the Apex Court in the case of Savitri Pandey (supra) and
the rationale behind it. It is true that in a country like us where millions of people face financial hardship for litigating a matter and considerable time, money and energy have to be spent in pursuing the appeal given the difficult geographical condition, access to justice may become illusory in approaching the Court of Appeal within a small period of 30 day and amendment to section 28(4) introduced in 2003 to the Hindu Marriage Act, 1955 being the later enactment in point of time compared to the provisions of section 19(3) under the Family Courts’ Act, 1984, the intention of the Legislature to provide a larger time period for preferring an appeal needs to be furthered in order to resolve this inconsistency by adopting the principles of harmonious construction. We are, therefore, inclined to follow the principles laid down by the Full Bench decision of Bombay High Court in this regard. The Hindu Marriage Act being a special legislation, the provisions governing the period of limitation for preferring an appeal arising out of the decisions of the Family Court under the Hindu Marriage Act, 1955 should be governed by larger period of limitation of 90 days prescribed under section 28(4) thereof. The second question posed for determination at the outset is also answered in the aforesaid manner in the affirmative. Having held so, the instant appeal does not suffer from any delay since the original petition was filed within a period of 90 days from the date of the impugned order i.e. 05.08.2015. As such, there is no delay in preferring the instant appeal. I.A. No. 539/2020 is disposed of.
2023-Mar-31: The parties settled.
Learned counsel for the parties submit that since the parties have settled the matrimonial dispute in all respects and the disposal / withdrawal of two pending cases against each other is only a matter of time where both the parties are taking steps and joint compromise petition has been filed in one of them whereas in the other they would be filing the joint compromise petition, the appeal itself can be disposed of in terms of the settlement by dissolution of the marriage as they are living separately also.
Having regard to the aforesaid state of facts and that the parties have settled the matter amicably amongst themselves during course of mediation at JHALSA and have decided to live separately without any condition of permanent alimony, there is no point in keeping this appeal pending as no lis survives to be adjudicated upon. As such, the appeal is disposed of in terms of the settlement jointly signed by the parties on 7th November 2021 part of the mediation report dated 16th November 2021 bearing letter no.2513. As such, marriage between the parties is dissolved. Parties are at idem that the two pending cases shall be withdrawn or disposed of parties on the basis of the joint settlement between the parties. They have also agreed not to institute any future cases against each other. Parties should abide by the terms and conditions of the settlement. The settlement should form part of the decree. Decree accordingly.
Index of judgements on Divorce Appeals is here.
