Classic cases of frequent invocation of extraordinary jurisdiction under Article 226 of the Constitution of India, even though two, inbuilt efficacious alternative remedies are provided by the Act, 1988
All contentions including that of powers conferred upon Adjudicating Authority under Section 26(1) (3) and whether such powers conferred upon Adjudicating Authority vis-a-vis jurisdiction, all can be raised before Appellate Tribunal exercising vide appellate powers under Section 46 of the Act 1988. Even after the order is passed by the Appellate Tribunal further appeal is provided before the High Court under Section 49 of the Act 1988, we are of the considered opinion in view of decision of the Apex Court in the case of Thansingh Nathmal & Ors. vs. A. Mazid reported in AIR 1964 SC 1419 and 1964 (6) SCR 654 that High Court is not to interfere with the order passed by the Adjudicating or Competent Authority when inbuilt efficacious alternative remedies are available.
Why lock a couple in a dead marriage.
The Respondent wife, who did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance.
In spite of service of Notice, the Respondent did not show any interest to appear in this Court also. This conduct of the Respondent by itself would indicate that she is not interested in living with the Appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty [Samar Ghosh v. Jaya Ghosh1]. The High Court observed that no attempt was made by either of the parties to be posted at the same place. Without entering into the disputed facts of the case, we are of the opinion that there is no likelihood of the Appellant and the Respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.
Continue reading “Irretrievable break down of Marriage: Supreme Court can grant divorce to couple.”
Necessity to record reasons by Appellate Court
In this regard Order XLI Rule 31 CPC reads as follows:
“Order XLI. Appeals from Original Decrees
31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state—
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.”
On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial Court and reversing the same is founded on different parameters as per the judgments of this Court.
Procedure for filing indigent Appeal against conviction.
Mississippi Rule of Appellate Procedure 28(a)(1)-(4) & (7) governs Appeals on behalf of indigent persons.
Fourteenth Amendment right to appellate counsel:
In Smith v. Robbins, 528 U.S. 259, 273-74, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), the United States Supreme Court, speaking through Justice Thomas, stated that although the Court had previously laid down a “prophylactic framework” to vindicate the Fourteenth Amendment right to appellate counsel, it “expressly disclaimed any pretensions to rulemaking authority for the States in the area of indigent criminal appeals.” Instead, the Court stated, “States may and, we are confident, will craft procedures that, in terms of policy, are superior to, or at least as good as” the framework the Court introduced in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
¶ 10. Before reviewing California’s procedure, the Court stated,
[I]t is important to focus on the underlying goals that the procedure should serve to ensure that those indigents whose appeals are not frivolous receive the counsel and merits brief required byDouglas, and also to enable the State to `protect itself so that frivolous appeals are not subsidized and public moneys are not needlessly spent.’ . . . For although, under Douglas, indigents generally have a right to counsel on a first appeal as of right, it is equally true that this right does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal.
The result of above case was laying of following procedure by Supreme Court of Missisipi in Turner v. State, 818 So.2d 1186:
The appellate counsel must:
(1) determine that the defendant is “unlikely to prevail on appeal.”
(2) file a brief indicating “that he scoured the record thoroughly[,]” and “refer to anything in the record that might arguably support the appeal[,]” and
(3) advise client of his right to file a pro se supplemental brief.
At this point, the appellate court shall then make its own independent review of the record, in the manner followed in all other cases.
The above procedure resulted in every appeal being a “no brief”:
Continue reading “What is Lindsey Brief in American Law?”