Rana Nahid @ Reshma @ Sana & Anr. vs Sahidul Haq Chisti

1.1 Muslim Women (Protection of Rights on Divorce) Act, 1986 does not deviate itself from the purpose, object and scope of the provisions of maintenance under Criminal Procedure Code. The provisions of the Act are not inconsistent with the provisions of Chapter IX of the Code. The provision of this enactment provides remedies beneficial to the Muslim women divorcee by making the former husband liable to provide the divorced woman with reasonable and fair provision in addition to providing maintenance and where the husband fails to comply with the order without sufficient cause, the Magistrate may issue warrant for levying the amount of maintenance and may sentence him to imprisonment for a term which may extend to one year. The near relatives of the woman are also made liable under Section 4 of the Act. In case, the relatives are not in a position to pay her, the State Wakf Board is also made liable to provide maintenance. While the Criminal Procedure Code provides the relief of maintenance only, the Act of 1986 furnishes to divorced woman, additionally, ‘a reasonable and fair provision’, the relief of recovery of dower and return of marital gifts. [Para 11] [334-F-H][335-A-B]

1.2 Section 3 of 1986 Act opens with the words “notwithstanding anything contained in any other law for the time being in force,” a divorced woman shall be entitled to rights enumerated in clauses (a) to (d) of Section 3(1) of 1986 Act. Muslim Women Protection Act may have conferred more rights but the Act confers these rights notwithstanding anything contained in Section 125 Cr.P.C. The non-obstante clause has to be understood fairly and reasonably. The non-obstante clause cannot be lightly assumed to bring in the effect of supersession. It should not be allowed to demolish or extinguish the existing right unless the legislative intention is clear, manifest and unambiguous. Section

5 of the Muslim Women’s Protection Act gives divorced Muslim couples “an option to be governed by the provisions of Sections

125 to 128 of the Code of Criminal Procedure, 1973” which they could jointly exercise at the first hearing of the case under the Act. Section 5 of the Act enables the parties at the stage of first hearing, to withdraw from the applicability of the Muslim Women’s Protection Act and be governed by the provisions of Criminal Procedure Code. Otherwise, the Magistrate has to deal with the application as per the provisions of the Muslim Women Protection Act. Section 7 of the Muslim Women Protection Act deals with Transitional Provisions. Only a Magistrate of the First Class exercising jurisdiction under the Code can dispose of the application in accordance with the provisions of the Muslim Women Protection Act. [Paras 15, 16][338-E-G][339-A-E] Danial Latifi and Another v. Union of India (2001) 7 SCC 740 : [2001] 3 Suppl. SCR 419; Shabana Bano v. Imran Khan (2010) 1 SCC 666 : [2009] 16 SCR 190 – referred to.

1.3 The Family Courts Act, 1984 was enacted in public interest for the establishment of Family Courts for the speedy settlement of family disputes and it came into force on 14.09.1984. The jurisdiction of Family Courts is provided for in Section 7 of the Act. The provisions of the Muslim Women’s Protection Act do not confer any jurisdiction on the Family Court. Section 3(2) of the Muslim Women’s Protection Act provides that the application may be made to a Magistrate; but not to the Family Court. Since the Muslim Women’s Protection Act, 1986 does not refer to the Family Court or does not say that an application under Sections 3 and 4 can be filed before the Family Court, the Family Court cannot entertain the application of divorced Muslim woman under Sections 3 and 4 of the Muslim Women’s Protection Act, 1986. [Paras 17, 20 and 23][339-E-F][341-F][345-B] Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and Others 2000 (3) Mh.L.J. 555 – approved.

Anjum Hasan Siddiqui v. Smt. Salma B. AIR 1992 All

322 – referred to.

1.4 The application under Section 3(2) of the Act of 1986 by the divorced wife has to be filed before the competent Magistrate having jurisdiction if she claims maintenance beyond the iddat period. Even if the Family Court has been established in that area, the Family Court not having been conferred the jurisdiction under Section 7 of the Family Courts Act, 1984 to entertain an application filed under Section 3 of the Muslim Women Protection Act, the Family Court shall have no jurisdiction to entertain an application under Section 3(2) of the Act of 1986. The Family Court, therefore, cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. The High Court rightly held that the Family Court has no jurisdiction to entertain the petition under Sections 3 and 4 of the Act of 1986 and that the Family Court cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. No reason is found warranting interference with the impugned order. [Paras 25, 26][345-E-H]

Iqbal Bano v. State of Uttar Pradesh & Anr. (2007) 6 SCC 785 : [2007] 7 SCR 949 – distinguished.

Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985) 2 SCC 556 : [1985] 3 SCR 844; Danial Latifi and Another v. Union of India (2001) 7 SCC 740 : [2001] 3 Suppl. SCR 419; Shabana Bano v. Imran Khan (2010) 1 SCC 666 : [2009] 16 SCR 190 – referred to.

PER INDIRA BANERJEE, J. (DISSENTING)

1.1 The Family Courts Act is a secular statute, which applies to matters contemplated therein, irrespective of the religion of the litigating parties. Section 3 of the Family Courts Act provides for establishment of Family Courts, after consultation with the High Court. On a reading of Section 7(1) along with explanation

(f) to Section 7(1) of the Family Courts Act, it is patently clear that the Family Court, established under Section 3 of the Family Courts Act, is clothed with the jurisdiction and powers exercisable by a District Court or any Subordinate Civil Court, under any law for the time being in force, to entertain and decide any suit or proceeding for maintenance, which would include an application under Section 3 of the 1986 Act for Muslim Women. [Paras 7, 10][347-C][349-C-D]

1.2 Section 20 of the Family Courts Act, with its nonobstante clause gives the provisions of the Family Courts Act overriding effect, over any other law, which would include the 1986 Act for Muslim Women. The Family Courts Act is to have effect, notwithstanding anything inconsistent therewith, contained in any other law, for the time being in force, or in any instrument having effect, by virtue of any law other than the Family Courts Act. The Family Courts have jurisdiction in respect of the matters specified in the Explanation (f) of Section 7(1), irrespective of religion or faith of the parties to the litigation. Wherever a Family Court is constituted, such Family Court not only exercises the jurisdiction and powers of any District Court or Subordinate Civil Court in respect of suits and other proceedings of the nature referred to in the Explanation (f) to Section 7(1), that is, suits and other proceedings for maintenance, it also exercises the jurisdiction and powers of a Magistrate of the First Class under Chapter IX of the Cr.P.C. [Paras 24, 27][351-F-G][352-D-E]

1.3 Section 125 of the Cr.P.C. is a beneficial piece of legislation, specially enacted as a measure of social justice, the dominant purpose whereof is to ensure that a wife including a divorced wife, a child or a parent is not driven to penury and vagrancy. The Section provides a simple speedy remedy, inter alia, for a wife including a divorced wife, who is neglected by her husband/ex husband, even though he has sufficient means to maintain her. Such a wife or divorced wife can obtain an order of maintenance from a Magistrate. The 1986 Act for Muslim Women has been enacted to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. [Paras 35, 39][355-E-G][356-D-E]

Vijay Kumar Prasad v. State of Bihar (2004) 5 SCC 196; Zohara Khatoon and Anr. v. Mohd. Ibrahim (1981)

2 SCC 509 : [1981] 2 SCR 910; Md. Ahmed Khan v. Shah Bano Begum and Others (1985) 2 SCC 556 : [1985] 3 SCR 844 – referred to.

1.4 There can be no dispute that the Family Court alone has jurisdiction in respect of personal and family matters relating to women and men, irrespective of their religion. Family matters of Muslim women pertaining inter alia to marriage, divorce etc. are decided by Family Courts, as also claims of Muslim wives to maintenance under Section 125 of the Cr.P.C. There could be no reason to single out divorced Muslim wives to deny them access to the Family Courts, and that was never the legislative intent of the 1986 Act for Muslim Women. Equality before the law and equal protection of the laws envisaged in Article 14 of the Constitution of India applies as much to procedural laws as to substantive laws. The non-obstante Clause in Section 3(1) of the 1986 Act for Muslim Women provides, in effect and substance, that a divorced Muslim woman would only be entitled to maintenance as provided in Section 3(1) of the 1986 Act for Muslim Women, notwithstanding any other law including Section

125 of the Cr.PC. [Paras 48, 49 and 55][359-G-H][360-A-B] [362-E-F]

State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC

75 : [1952] SCR 284; D.K. Yadav v. J. M. A. Industries Ltd. (1993) 3 SCC 259 : [1993] 3 SCR 930; Lachhman Dass v. State of Punjab AIR 1963 SC 222 : [1963] 2 SCR 353; Meenakshi Mills v. Vishvanatha Sastri AIR 1955 SC 13 : [1955] 1 SCR 787; Budhan Choudhry v. State of Bihar AIR 1955 SC 191 : [1955] 1 SCR 1045 – followed.

1.5 A divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband after the enactment of the 1986 Act for Muslim Women. However, under Section 3 read with Section 4 of the 1986 Act for Muslim Women, a divorced Muslim woman is entitled to an order of maintenance, if she is unable to maintain herself after the Iddat period and has not remarried. Section 5 of the 1986 Act for Muslim Women provides that a divorced woman and her former husband might decide by an affidavit or any other declaration in writing, that they would prefer to be governed by the provisions of Section

125 to 128 of the Cr.P.C. Section 7 of the Family Courts Act expressly confers jurisdiction to a Family Court to exercise all jurisdiction exercisable by any District Court or any Subordinate Civil Court, under any law for the time being in force, in respect inter alia of all suits and proceedings for maintenance. The Family Court has also expressly been conferred with jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Cr.P.C relating to maintenance. Under Section 7(2)(b) of the Family Courts Act, the Family Court may exercise such other jurisdiction as may be conferred on it by any other enactment. The Family Courts Act, enacted long before enactment of the 1986 Act for Muslim Women, obviously did not contemplate the later legislation. There is, therefore, no specific mention of the 1986 Act for Muslim Women in the Family Courts Act. [Paras 56, 58 and 59][362-G-H][363-B-D]

1.6 The 1986 Act for Muslim Women is essentially a civil law, which makes provisions for maintenance for divorced Muslim women and not a criminal statute. The 1986 Act for Muslim women does not contain any penal provision for any default which enables a divorced Muslim Woman to apply for maintenance under the said Act. The penal provision of the 1986 Act for Muslim Women is only to enforce compliance with an order under Section

31 of the said Act. The punishment of imprisonment is only for non-compliance with the order of maintenance. The Magistrate referred to in Section 3(2) and other Sections of the 1986 Act, is, for all practical purposes, to be deemed to be a Civil Court subordinate to the District Court. [Para 66][365-B-D]

1.7 It was never the intention of the 1986 Act for Muslim Women to deprive divorced Muslim Women from the litigant friendly procedures of the Family Courts Act and denude Family Courts of jurisdiction to decide applications for maintenance of divorced Muslim women. The Family Court would have jurisdiction under Section 7 of the Family Courts Act to entertain an application under Section 3 and 4 of 1986 Act for Muslim Women, since the Court of Magistrate dealing with such an application is to be deemed to be a Civil Court subordinate to the District Court. A literal and rigid interpretation of the expression “Subordinate Civil Court” to single out divorced Muslim Women seeking maintenance from their husbands, access to Family Courts when all other women whether divorced or not and even Muslim Women not divorced can approach Family Courts would be violative of Article 14 of the Constitution. The Family Court had the jurisdiction to convert the application of the Appellant under Section 125 of the Cr.P.C into an application under Section 3 of the 1986 Act for Muslim Women and to decide the same. [Paras 68-71, 79][365-G-H][366-B-D][368-B] Bangalore Water Supply v. A. Rajappa AIR 1978 SC

548 : [1978] 3 SCR 207 – followed.

Iqbal Bano v. State of UP and Another (2007) 6 SCC

785 : [2007] 7 SCR 949; Tirath Singh v. Bachittar Singh AIR 1955 SC 830 : [1955] 2 SCR 457 – relied on.

Modern School v. Union of India (2004) 9 SCC 741 : [2004] 3 SCR 1161 – referred to.

Seaford Court Estates Ltd. v. Asher (1949) 2 All ER

155 – referred to.

In the Judgment of R. Banumathi, J.

distinguished

Para 3

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Para 9

[2001] 3 Suppl. SCR 419

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Para 13

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Para 15

In the Judgment of Indira Banerjee, J. (Dissenting) (2004) 5 SCC 196

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Para 36

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Para 36

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Para 37

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Para 49

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Para 49

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Para 50

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Para 74

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Para 78