When There Is No Appeal Provision Provided By Law, Judgment Made In Appeal Is Non-Est: Kerala High Court

The Court was considering the challenge against an order issued by the Sessions Judge, dismissing Magistrate's order when there was no provision provided for appeal.

Justice P .G. Ajithkumar stated that the Sessions Judge committed an error in considering the appeal when there was no provision for appeal.

Court said, “In the circumstances, the learned Sessions Judge committed an error in entertaining and deciding Crl.Appeal No.28 of 2019. It was without jurisdiction. When such a remedy is not provided in law, the judgment in the appeal is a non-est and can only be ignored.”

In the facts, the petitioner filed an application before the Magistrate Court for maintenance under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986. The Magistrate Court allowed it and ordered the respondent to pay maintenance during Iddat period and also fair provision and maintenance.

The respondent filed an appeal before the Sessions Court and the Sessions Court reversed the order of the Magistrate and dismissed her case. The petitioner has thus approached the High Court in a revision petition challenging the order of the Sessions Court.

Section 3 of the Muslim Women (Protection of Rights on Divorce) Act enumerates the rights of a Muslim woman to receive mahr and other properties at the time of divorce.

For context, Section 3 (2) states that a Muslim divorcee can file an application before a Magistrate, if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her. Further, Section 3 (3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman.

The Court found that there is no provision for appeal against an order issued by the Magistrate under Section 3 (2) of the Act. The Court thus stated that there is no provision in the Statute for an aggrieved party to prefer an appeal.

The Court also observed that the Act does not contain any provision allowing an appeal under the Civil Procedure Code.

Court stated, “In the absence of a provision in the Act for filing appeals against orders under Section 3(3), provisions governing appeals in the Code can be resorted to only if there is legislation by incorporation in the Act, either express or implied, of the provisions governing appeal under the Code. There is no such incorporation to the Act.”

As such, the Court upheld the validity of the order issued by the Magistrate.

Counsel for Petitioners: Advocates K K John, Asish K John

Counsel for Respondents: Advocate B Mohanlal, Public Prosecutor C N Prabhakaran

Case Number: CRL.REV.PET NO. 268 OF 2020

Case Title: Shani v Muhammed Kunji

Citation: 2024 LiveLaw (Ker) 719