VERDICTUM.
IN
2024:KER:83626
“C.R.”
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY,THE 7TH DAY OF NOVEMBER 2024/16TH KARTHIKA, 1946
CRL.REV.PET NO. 268 OF 2020
AGAINST THE ORDER/JUDGMENT DATED 26.10.2019 IN CRA NO.28
OF 2019 OF ADDITIONAL SESSIONS COURT - IV, KOLLAM ARISING
OUT OF THE ORDER/JUDGMENT DATED 18.01.2019 IN MC NO.121
OF 2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM
REVISION PETITIONER/RESPONDENT/PETITIONER:
SHANI
AGED 41 YEARS, D/O.KUNJU BEEVI, PATTERI VEEDU,
PALACE WAD, THEVALLY, KOLLAM NOW RESIDING AT
SS VILLA, NETHAJI NAGAR HOUSE NO.58,
KUREEPUZHA EAST, KOLLAM WEST VILLAGE,
KAVANAD.P.O, KOLLAM-691003.
BY ADVS.
K.K.JOHN
SRI.ASISH K.JOHN
VERDICTUM.IN
2024:KER:83626
2
Crl.Rev.Pet.No.268 of 2020
RESPONDENTS/APPELLANT/RESPONDENT & STATE:
1 MUHAMMED KUNJU
S/O.KOCHU KUNJU, KADAPPAI THEKKATHIL HOUSE,
CHANKUVADAKKATHIL, PALAKKAL MURI, THEVALAKKARA
VILLAGE, KARUNAGAPPALLY, THEVALAKKARA.P.O.,
KOLLAM DIST.-690524.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KEALA, ERNAKULAM, KOCHI-682031.
R1 BY ADV SRI.B.MOHANLAL
R2 SRI. C.N. PRABHAKARAN-SR.PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 07.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
VERDICTUM.IN
2024:KER:83626
3
Crl.Rev.Pet.No.268 of 2020
“C.R.”
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Rev.Pet.No.268 of 2020
-----------------------------------------------------------
Dated this the 7th day of November, 2024
ORDER
The petitioner filed M.C.No.121 of 2012 before the
Judicial Magistrate of the First Class-II, Kollam claiming reliefs
provided under Section 3 of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 (for short “the Act”). The learned
Magistrate as per the order dated 18.01.2019 allowed the
M.C. and ordered the respondent to pay maintenance during
the period of Iddat and also fair provision and maintenance.
The respondent filed an appeal as Crl.Appeal No.28 of 2019
before the Sessions Court, Kollam assailing the said order. The
Additional Sessions Judge-IV, Kollam after hearing the parties
to the appeal, reversed the order of the learned Magistrate
and consequently dismissed M.C.No.121 of 2012. The said
judgment is under challenge in this revision petition filed
under Section 397 read with Section 401 of the Code of
Criminal Procedure, 1973 (Code).
VERDICTUM.IN
2024:KER:83626
4
Crl.Rev.Pet.No.268 of 2020
2. Heard the learned counsel for the petitioner, the
learned counsel for the 1st respondent and the learned Public
Prosecutor.
3. 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. 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. Only
provision that empowers a Magistrate dealing with a petition
under Section 3(2) of the Act to bring in procedure in the
Code is Rule 4 in the Muslim Women (Protection of Rights on
Divorce) Rules, 1986. Rule 4 provides to follow the procedure
VERDICTUM.IN
2024:KER:83626
5
Crl.Rev.Pet.No.268 of 2020
in the Code in the matter of recording evidence, and not in
relation to any other aspects. In the light of the said
provisions the position of law is that no appeal to the Sessions
Court is possible against an order under Section 3(3) of the
Act.
4. In Ganga Bai v. Vijay Kumar [AIR 1974 SC
1126] the Apex Court while considering the scope of
appeal in civil cases it was held that appeal is a statutory
right and is maintainable only when some statute
provides the remedy of appeal. That proposition is
applicable equally to criminal matters also (See:
Mallikarjun Kodagali (Dead) represented through
Legal Representatives v. State of Karnataka and
others [(2019) 2 SCC 752]). Insofar as the criminal
cases are concerned Section 372 of the Code statutorily
prescribes also that no appeal shall lie from any judgment
or order of a Criminal Court except as provided for by the
Code or by any other law for the time being in force.
VERDICTUM.IN
2024:KER:83626
6
Crl.Rev.Pet.No.268 of 2020
5. 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.
6. The result is that the order of the learned
Magistrate in M.C.No.121 of 2012 remains valid. Of course,
when the respondent filed an appeal and the appellate court
entertained the same, it can certainly be said that the
respondent prosecuted the matter with bona fides. Therefore,
the respondent, if he desires to challenge the order of the
learned Magistrate in an appropriate proceeding, he may
claim the benefit of Section 14 of the Limitation Act, 1963.
Resultantly, the revision petition is dismissed. Considering
the request of the learned counsel for the respondent,
enforcement of the order dated 18.01.2019 in M.C.No.121 of
2012 is kept in abeyance for a period of two weeks.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
