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Synopsis

The Kerala High Court dismissed a criminal revision petition challenging the order of a Magistrate granting maintenance to a Muslim woman under the Muslim Women (Protection of Rights on Divorce) Act, 1986. The court held that no statutory provision allows for an appeal against such an order and no appeal shall lie from any judgment or order of a Criminal Court except as provided by law.

The court, presided over by Justice P.G. Ajithkumar, observed that an appellate court’s decision is void if no statutory provision allows for an appeal. The court emphasised that “When such a remedy is not provided in law, the judgment in the appeal is a non-est and can only be ignored,” holding that the Sessions Judge committed an error in entertaining and deciding the criminal appeal, stating that “It was without jurisdiction.”

The case originated from a petition filed by Shani (wife), a 41-year-old woman from Kollam, before the Judicial Magistrate. The petitioner sought maintenance and fair provision following her divorce, invoking her rights under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. On January 18, 2019, the Magistrate ruled in her favour, directing the respondent husband, Muhammed Kunju, to pay maintenance for the Iddat period as well as fair provision and maintenance. Kunju challenged this decision before the Additional Sessions Court, which overturned the Magistrate’s order.

The petitioner argued that the Sessions Court lacked the jurisdiction to entertain an appeal against an order issued under Section 3(3) of the Act. It was contended that the Act does not provide any provision for an appeal against such orders, making the judgment of the Sessions Court invalid.

Section 3(2) allows a Muslim divorcee to submit an application to a Magistrate if her former husband has failed to provide reasonable and fair provision, maintenance, or unpaid mahr. Additionally, Section 3(3) outlines the procedure by which the Magistrate may issue an order requiring the former husband to pay such reasonable and fair provision and maintenance to the divorced woman.

The court noted that Section 3(3) of the Act does not incorporate any provision for appeal. The court stated, “When an application is filed under Section 3(2) of the Act, the learned Magistrate is expected to consider and pass an order as provided under Section 3(3) of the Act. There is no provision in the Statute enabling the party aggrieved by that order to prefer an appeal. No provision in the Act enables reading into it the provisions concerning appeals in the Code also.”

Citing precedents, including Ganga Bai v. Vijay Kumar [AIR 1974 SC 1126] and Mallikarjun Kodagali v. State of Karnataka [(2019) 2 SCC 752], the court highlighted that appeal rights must be expressly provided by statute.

The court explained that Section 3(3) of the Muslim Women (Protection of Rights on Divorce) Act does not contain any provisions for filing an appeal, highlighting that provisions in the Code governing appeals can only be invoked if there is explicit or implicit legislative incorporation within the Act, which is not present. The court further noted that Rule 4 of the Muslim Women (Protection of Rights on Divorce) Rules, 1986, allows the procedure in the Code to be followed solely for recording evidence, not for appeals or other processes.

However, acknowledging the respondent’s good faith in filing the appeal, the High Court permitted him to explore appropriate legal remedies under Section 14 of the Limitation Act, 1963. To this end, the enforcement of the Magistrate’s order was stayed for two weeks.

 

Cause Title: Shani v Muhammed Kunju [Crl.Rev.Pet.No.268 of 2020]