IMPORTANT POINTS
(1) Appeal – Right of appeal cannot be assumed or presumed in absence of any statutory provision in this regard.
(2) Wife cannot be regarded as a person aggrieved in relation to a decree of divorce granted in her favour.
(3) Child of litigating spouse has no right to challenge decree for divorce granted under Special Marriage Act.

JUDGMENT

Harish Tandon, J.—The aforesaid two appeals are taken up together having a common thread in relation to the maintainability of an appeal under the relevant law. FAT 271 of 2023 is at the behest of the wife who emerged successful in a proceeding initiated by her for dissolution of marriage and FAT 327 of 2023 is filed through a next friend of the minor son of the parties to FAT 271 of 2023 assailing the selfsame judgment and decree passed by the Court below granting divorce.

2. A plea of maintainability of an appeal in both the matters is taken up contesting the respondent on two scores firstly, the appeal filed by the wife assailing a decree for dissolution of marriage is incompetent and not maintainable as she cannot be regarded as an “aggrieved person” for the simple reason that her proceeding in this regard was decreed in her favour, secondly, the appeal at the behest of the next friend of the minor son of the parties assailing a decree for dissolution of marriage is also not maintainable as a third party to a suit for dissolution of marriage is incompetent and cannot be regarded as “aggrieved person”.

3. To address the point of maintainability, it would be profitable to narrate the salient facts which are more or less undisputed. Priyadarshini Mallick was married to Neelavra Sen under the Special Marriage Act and upon a dispute having cropped up, a proceeding under Section 27 of the said Act filed by Priyadarshini Mallick on the ground of desertion and cruelty. The said proceeding ended in her favour as the Court granted the decree dissolving the marriage between the parties. Such being an undisputed facts, the said Priyadarshini Mallick filed an appeal assailing the decree for dissolution of marriage passed in her favour on the ground that the findings made therein does not warrant granting a decree for dissolution of marriage; in other words, according to her, she was unable to prove the case of desertion in the evidence and, therefore, the Court below should not have passed the decree for dissolution of marriage.

4. The question arose as to whether an appeal is competent against a finding and capable of being assailed by a successful litigant before the Court of appeal. Section 39 of the said Act provides a remedy by way of an appeal without expressly indicating at whose instance it would lie. Section is quoted as under:—

“Section 39 of the Special Marriage Act:—

Appeals from decrees and orders.—

(1) All decrees made by the court in any proceeding under Chapter V or Chapter VI shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under section 37 or section 38 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a 2[period of ninety days] from the date of the decree or order.]”

5. It is manifest from the aforesaid provision that all decrees made by the Court in any proceeding under Chapters V and VI thereof is appealable as a decree of the Court before a higher forum subject to the restriction that such decree is incompetent if filed on the imposition of costs only. The right of appeal emanate from the statute and is, therefore, regarded as a creature of the statute. A right of appeal cannot be assumed or presumed in the absence of any statutory provision in this regard as such conferment of right has to be expressly included in the statute. It admi