'Undue Fetter' On Right Of Appeal: Kerala High Court Sets Aside Order Requiring 50% Maintenance Deposit For Delay Condonation

Justice Jobin Sebastian opined that such a condition may be justified when the appellate court is considering an application for stay of execution of the award but not while considering an application for condonation of delay.

“The right of appeal, being a statutory right, cannot ordinarily be fettered by imposing a condition requiring the appellant to pay a portion of the amount awarded under the impugned order as a prerequisite for condonation of delay. If sufficient cause for the delay is established, the delay has to be condoned, with or without costs, depending upon the facts and circumstances of the case. When the delay has caused inconvenience or prejudice to the opposite party, the Court is certainly entitled to impose reasonable costs while condoning the delay, so as to compensate the opposite party for such inconvenience or prejudice,” the Court added.

The Court was considering a criminal revision petition challenging the dismissal of the delay condonation application preferred in an appeal.

The petitioner was the respondent in a petition filed by his wife seeking reliefs under the Protection of Women from Domestic Violence Act. The Magistrate allowed the wife's plea ordering the petitioner to pay her Rs. 5000 as maintenance and granting protection and residence orders. Aggrieved, he preferred an appeal before the Sessions Court but with delay.

The Sessions Court had initially allowed the delay condonation application subject to the condition that the petitioner/husband deposit 50% of the maintenance amount before the jurisdictional magistrate within a month. However, the petitioner could not comply with the condition since he met with an accident. He then filed a petition to extend the time granted to comply with the condition but the same was dismissed as well as the delay condonation application. Aggrieved, he approached the High Court.

The petitioner contended that the Sessions Court ought not to have imposed a condition insisting on payment of portion of maintenance amount while exercising jurisdiction under Section 5 of the Limitation Act, 1963. It was pointed out that the only question to be considered is whether the appellant had established sufficient cause for not preferring an appeal within the limitation period.

The Court agreed with the petitioner and remarked that the Sessions Court did not consider the delay on the touchstone of whether sufficient cause was established. It added:

“However, a direction to deposit a particular percentage of the arrears of maintenance, or even the entire arrears, may be justified in an appropriate case when the Court is considering an application for stay of execution or enforcement of the impugned order. Such a consideration stands on an entirely different footing from an application for condonation of delay.”

The Court thus allowed the criminal revision petition and set aside the dismissal of the delay condonation application. It also directed the Sessions Court to consider the application afresh in the light of the principles mentioned and pass appropriate orders.

Counsel for the petitioner: Athul Poulose

Counsel for the respondents: Navas V.A. – Senior public prosecutor

Crl.Rev.Pet.No. 830/2026, Anilkumar v. Anitha Kumari and Ors., 2026 LiveLaw (Ker) 558