SHANI Vs. MUHAMMED KUNJU

JUDGEMENT

(1.) The petitioner filed M.C.No.121 of 2012 before the Judicial Magistrate of the First Class-II, Kollam claiming reliefs provided under Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short "the Act"). The learned Magistrate as per the order dtd. 18/1/2019 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 Sec. 397 read with Sec. 401 of the Code of Criminal Procedure, 1973 (Code).

(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 Sec. 3(2) of the Act, the learned Magistrate is expected to consider and pass an order as provided under Sec. 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 Sec. 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 Sec. 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 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 Sec. 3(3) of the Act.