Can Family Court Entertain Maintenance Petition Under Muslim Women (Protection of Rights on Divorce) Act? Question referred to higher bench of Supreme Court

In view of difference of opinions and the distinguishing

judgments (Hon'ble R. Banumathi, J. dismissed the appeal and

Hon'ble Indira Banerjee, J. allowed the appeal), the matter

be placed before Hon'ble the Chief Justice of India for

referring the matter to the Larger Bench.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.192 OF 2011

RANA NAHID @ RESHMA @ SANA Vs SAHIDUL HAQ CHISTI 

R. BANUMATHI, J
Dated:18TH JUNE, 2020

This appeal arises out of the judgment dated 28.07.2010

passed by the High Court of Rajasthan Bench at Jaipur in S.B.

Criminal Revision Petition No. 295 of 2009 in and by which High

Court allowed the revision petition filed by the respondent thereby

setting aside the order passed by the Family Court which has

converted the application for maintenance under Section 125

Cr.P.C. into Section 3 of the Muslim Women (Protection of Rights on

Divorce) Act, 1986 and also setting aside the maintenance amount

awarded to appellant No.1.

2. Brief facts of the case which led to the filing of this appeal are

that the marriage between appellant No.1-Rana Nahid @ Reshma

@ Sana and respondent Sahidul Haq Chisti was solemnized on

08-03-1998 as per the Muslim rites and appellant No.2-son was

born out of the wedlock. Alleging that appellant No.1 was subjected

to cruelty and harassment for additional dowry and that she was

thrown out of matrimonial home, appellants filed a petition under

Section 125 Cr.P.C against the respondent. Thereafter, on 24-03-

2008, appellant No.1 amended the petition on the basis of divorce

given on 23-04-2008 by the respondent-Sahidul. The

appellants averred that the respondent is working as a lecturer in

Rajkiya Moiniya Senior Secondary School, Ajmer and has been

earning a sum of Rs.20,000/- per month approximately and he also

serves in “Mehmani ki Dargah” from where he earns Rs.20,000/-

per month and thus claimed a maintenance of Rs.6,000/- per month

towards her maintenance and Rs.2,500/- per month towards

maintenance of her son-appellant No.2 herein. The respondent has

admitted that he is a lecturer in Govt. Job and receives a salary of

Rs.18,500/- per month.

3. The Family Court held that as the appellant No.1 is a Muslim

divorced woman, her petition for maintenance under Section 125

Cr.P.C. is not maintainable. The Family Court treated the said

application under Section 125 Cr.P.C. as application under Section

3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986

(Muslim Women’s Protection Act) in the light of the judgment of this

Court in Iqbal Bano v. State of Uttar Pradesh & Anr. (2007) 6

SCC 785. The Family Court ordered respondent-Sahidul Haq to pay

rupees three lakh in lump sum to appellant No.1 towards her

maintenance and future livelihood. The application of appellant No.2

claiming maintenance has been accepted under Section 125 Cr.P.C.

and the respondent has been ordered to pay Rs. 2,000/- per month

towards his maintenance till he attains majority.

4. Being aggrieved by the quantum of maintenance, the

appellants filed Revision Petition No. 295 of 2009 before the High

Court of Rajasthan at Jaipur for enhancement of maintenance. The

respondent also filed Revision Petition No.221 of 2009 against the

order of the Family Court. While the matter was pending before the

High Court, a sum of Rs. 1,00,000/- was paid by the respondent to

appellant No.1. The High Court held that the application under

Section 125 Cr.P.C. was made before the Family Court which does

not have jurisdiction to entertain an application under Section 3 of

the Muslim Women’s Protection Act. The High Court held that the

order of the Family Court converting the application under Section

125 Cr.P.C. into an application under Section 3 of the Act is without

jurisdiction and on those findings, set aside the order of the Family

Court to that extent and allowed the revision preferred by the

respondent. However, liberty was given to appellant No.1 to file an

application under Section 3 of the Act of 1986 before the Court of

competent Magistrate. So far as the amount of rupees one lakh

already paid to appellant No.1, she was allowed to retain it, subject

to the final outcome of the application under Section 3 of the Act.

The High Court, however, maintained the maintenance amount

awarded to appellant No.2.

5. It is submitted by the learned counsel for the appellants that

the Family Court has jurisdiction to decide cases under Section 3 of

the Muslim Women’s Protection Act and the High Court was not

right in setting aside the same and erred in directing the appellant

No.1 to file application under Section 3 of Muslim Women’s

Protection Act.

6. Refuting the contentions, learned counsel for the respondent

submitted that an application under Section 125 Cr.P.C. cannot be

maintained by a Divorced Muslim Wife unless there is a consent of

both that the Husband and the divorced Wife to be governed by

Section 125 Cr.P.C as per Section 5 of the Muslim Women’s

Protection Act. It was further submitted that the Family Court has no

jurisdiction to entertain applications under Section 3 of the Act as

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the jurisdiction to file the case under Muslim Women’s Protection

Act has not been conferred on the family courts under Section 7(2)

(b) of the Family Courts Act, 1984.

7. Having regard to the rival contentions, the question falling for

consideration is whether the family court has jurisdiction to try

application filed by Muslim divorced woman for maintenance under

Section 3 of Muslim Women (Protection of Rights on Divorce) Act,

1986.

8. For proper appreciation of the contentions, we may usefully

refer to the provisions of the Act and the genesis of the enactments

that are under consideration before us.

9. Under the Muslim personal law, a divorced woman could be

awarded maintenance only during the iddat period and not later. In

Mohd. Ahmed Khan v. Shah Bano Begum and others

(1985) 2 SCC 556, the Supreme Court upheld the right of Muslim

divorced wife under Section 125 Cr.P.C. because Explanation (b) of

Section 125 (1) Cr.P.C. includes a divorced wife till she remarries.

In Shah Bano case, the Supreme Court has held that a Muslim

divorced woman unable to maintain herself is entitled to claim

maintenance under Section 125 Cr.P.C. even after the iddat period

was over.

10. After Shah Bano case, the Muslim Women (Protection of

Rights on Divorce) Act (For short ‘Muslim Women Protection Act’)

was enacted with effect from 19.05.1986 as per which a divorced

Muslim woman is not only entitled to maintenance for the iddat

period from her former husband but also to a reasonable and fair

provision for the future. The preamble of the Muslim Women

(Protection of Rights on Divorce) Act, 1986 reads as under:-

“An Act 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.”

11. 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

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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.

12. The important Section in the Act, 1986 is Section 3 which

provides that a divorced woman is entitled to obtain from her former

husband “maintenance”, “reasonable and fair Provision” and “Mahr”

etc. Section 3(1)(a) and Section 3(2) of the Muslim Women’s

Protection Act read as under:-

“3. Mahr or other properties of Muslim woman to be given to

her at the time of divorce.—(1) Notwithstanding anything

contained in any other law for the time being in force, a divorced

woman shall be entitled to—

(a) a reasonable and fair provision and maintenance to be

made and paid to her within the iddat period by her former

husband;

(2) Where a reasonable and fair provision and maintenance or the

amount of mahr or dower due has not been made or paid or the

properties referred to in clause (d) of sub-section (1) have not been

delivered to a divorced woman on her divorce, she or any one duly

authorised by her may, on her behalf, make an application to a

Magistrate for an order for payment of such provision and

maintenance, mahr or dower or the delivery of properties, as the

case may be.”

After the enforcement of the Muslim Women’s Protection Act, a

divorced Muslim woman is entitled to maintenance not only for the

7

period of iddat from her former husband but also to a reasonable

and fair provision for her future. The wordings of Section 3 of the Act

indicate that the husband has two separate and distinct obligations:

(1) to make a “reasonable and fair provision” for his divorced wife;

and (2) to provide “maintenance” for her. Section 3 of the Act

prescribes forum for redress and the manner in which the order is to

be executed. The Act confers exclusive jurisdiction on the

Magistrate of the First Class to entertain an application under the

Act by a Muslim woman where she resides.

13. In Danial Latifi and another v. Union of India, (2001) 7 SCC

740, the Constitution Bench of the Supreme Court considered the

constitutional validity of the provisions of the Muslim Women

(Protection of Rights on Divorce) Act, 1986 and upheld the validity

of the provisions of the Act and held as under:-

“27. Section 3(1) of the Act provides that a divorced woman shall

be entitled to have from her husband, a reasonable and fair

maintenance which is to be made and paid to her within the iddat

period. Under Section 3(2) the Muslim divorcee can file an

application before a Magistrate if the former husband has not paid

to her a reasonable and fair provision and maintenance or mahr

due to her or has not delivered the properties given to her before or

at the time of marriage by her relatives, or friends, or the husband

or any of his relatives or friends. Section 3(3) provides for

procedure wherein the Magistrate can pass an order directing the

former husband to pay such reasonable and fair provision and

maintenance to the divorced woman as he may think fit and proper

having regard to the needs of the divorced woman, standard of life

enjoyed by her during her marriage and means of her former

husband. The judicial enforceability of the Muslim divorced

woman’s right to provision and maintenance under Section 3(1)(a)

of the Act has been subjected to the condition of the husband

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having sufficient means which, strictly speaking, is contrary to the

principles of Muslim law as the liability to pay maintenance during

the iddat period is unconditional and cannot be circumscribed by

the financial means of the husband. The purpose of the Act

appears to be to allow the Muslim husband to retain his freedom of

avoiding payment of maintenance to his erstwhile wife after divorce

and the period of iddat.”

………

“29. The important section in the Act is Section 3 which provides

that a divorced woman is entitled to obtain from her former husband

“maintenance”, “provision” and “mahr”, and to recover from his

possession her wedding presents and dowry and authorizes the

Magistrate to order payment or restoration of these sums or

properties. The crux of the matter is that the divorced woman shall

be entitled to a reasonable and fair provision and maintenance to

be made and paid to her within the iddat period by her former

husband. The wordings of Section 3 of the Act appear to indicate

that the husband has two separate and distinct obligations: ( 1 ) to

make a “reasonable and fair provision” for his divorced wife; and ( 2 )

to provide “maintenance” for her. The emphasis of this section is

not on the nature or duration of any such “provision” or

“maintenance”, but on the time by which an arrangement for

payment of provision and maintenance should be concluded,

namely, “within the iddat period”. If the provisions are so read, the

Act would exclude from liability for post-iddat period maintenance to

a man who has already discharged his obligations of both

“reasonable and fair provision” and “maintenance” by paying these

amounts in a lump sum to his wife, in addition to having paid his

wife’s mahr and restored her dowry as per Sections 3(1)( c ) and 3(1)

( d ) of the Act. ……..”

30. A comparison of these provisions with Section 125 CrPC will

make it clear that requirements provided in Section 125 and the

purpose, object and scope thereof being to prevent vagrancy by

compelling those who can do so to support those who are unable to

support themselves and who have a normal and legitimate claim to

support are satisfied. If that is so, the argument of the petitioners

that a different scheme being provided under the Act which is

equally or more beneficial on the interpretation placed by us from

the one provided under the Code of Criminal Procedure deprive

them of their right, loses its significance. The object and scope of

Section 125 CrPC is to prevent vagrancy by compelling those who

are under an obligation to support those who are unable to support

themselves and that object being fulfilled, we find it difficult to

accept the contention urged on behalf of the petitioners.”

[Underlining added]

The Constitution Bench upheld the provisions of the Act. But the

Constitution Bench did not authoritatively decide on the question

whether the Family Court would have jurisdiction to entertain an

application filed by a divorced Muslim Woman for maintenance

under the provisions of the Muslim Women Protection Act.

14. Under Section 3(1)(a) of the 1986 Act, a divorcee is entitled to

get a reasonable and fair provision and maintenance to be made

and paid to her within the iddat period. On construing the

expression, “a fair and reasonable provision and maintenance” as

used in Section 3(1)(a) of the 1986 Act, the Supreme Court in

Danial Latifi case has summed up its conclusion as under:-

“36. While upholding the validity of the Act, we may sum up our

conclusions:

(1) A Muslim husband is liable to make reasonable and fair

provision for the future of the divorced wife which obviously

includes her maintenance as well. Such a reasonable and fair

provision extending beyond the iddat period must be made by

the husband within the iddat period in terms of Section 3(1)(a)

of the Act.

(2) Liability of a Muslim husband to his divorced wife arising under

Section 3(1)(a) of the Act to pay maintenance is not confined

to the iddat period.

(3) A divorced Muslim woman who has not remarried and who is

not able to maintain herself after the iddat period can proceed

as provided under Section 4 of the Act against her relatives

who are liable to maintain her in proportion to the properties

which they inherit on her death according to Muslim law from

such divorced woman including her children and parents. If

any of the relatives being unable to pay maintenance, the

Magistrate may direct the State Wakf Board established under

the Act to pay such maintenance.

(4) The provisions of the Act do not offend Articles 14, 15 and 21 of the

Constitution of India.”

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15. 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 nonobstante

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. In Shabana Bano v. Imran Khan (2010) 1 SCC

666, the Supreme Court quashed the order of the Family Court

holding that even if the Muslim wife had been divorced during the

period her application for maintenance is pending, she would be

entitled to claim maintenance from her husband under Section 125

Cr.P.C. So, the case has been remanded to Family Court for

disposal of the case on its merits in accordance with law.

16. We may also refer to Section 5 of the Muslim Women’s

Protection Act which 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. Under Section 5 of

the Muslim Women Protection Act, on the date of the first hearing, a

divorced woman and her former husband can declare that they

prefer to be governed by Sections 125 to 128 of the Code and then

the Magistrate has to dispose of the application accordingly.

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. As

per Section 7 of the Act, an application by a divorced woman under

Section 125 or under Section 127 of the Code pending before a

Magistrate on the commencement of Muslim Women Protection Act,

shall, notwithstanding anything contained in that Code, subject to

the provisions of Section 5 of the Act, shall be disposed of by such

Magistrate in accordance with the provisions of the Muslim Women

Protection Act. This makes the legal provision very clear. That is

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.

17. 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.

Sections 7 and 8 of the Act read as under:-

“7. Jurisdiction. — (1) Subject to the other provisions of this Act, a

Family Court shall —

(a) have and exercise all the jurisdiction exercisable

by any district court or any subordinate civil court

under any law for the time being in force in

respect of suits and proceedings of the nature

referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such

jurisdiction under such law, to be a district court

or, as the case may be, such subordinate civil

court for the area to which the jurisdiction of the

Family Court extends.

Explanation. — The suits and proceedings referred to in this subsection

are suits and proceedings of the following nature, namely:

—

(a) a suit or proceeding between the parties to a

marriage for a decree of nullity of marriage

(declaring the marriage to be null and void or, as

the case may be, annulling the marriage) or

restitution of conjugal rights or judicial separation

or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the

validity of a marriage or as to the matrimonial

status of any person;

(c) a suit or proceeding between the parties to a

marriage with respect to the property of the

parties or of either of them;

(d) a suit or proceeding for an order or injunction in

circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the

legitimacy of any person;

(f) a suit or proceeding for maintenance;

(2) Subject to the other provisions of this Act, a Family Court shall

also have and exercise —

(a) the jurisdiction exercisable by a Magistrate of the first

class under Chapter IX (relating to order for

maintenance of wife, children and parents) of the

Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by

any other enactment.

18. Section 7(1)(a) of the Family Courts Act confers the entire

jurisdiction hitherto exercised by any district court or any

subordinate civil court in suits or proceedings relating to matters

mentioned in clauses (a) to (g) of the Explanation. Sub-clause (b)

creates a legal fiction endowing upon the Family Courts the status

of the District Court or subordinate Civil Court. Section 7(1) can

apply only when:- (i) the suit or proceeding is of the nature

envisaged by clauses (a) to (g) of the Explanation; and (ii)

concerning the matter where the jurisdictions are exercisable by any

District Court or Subordinate Court. On these counts, the

application under Section 3 of Muslim Women’s Protection Act

cannot be said to be covered by Section 7(1) of the Act. As

provided in Section 3(2) of Muslim Women’s Protection Act,

application can be moved only before the First Class Magistrate

having jurisdiction in the area under Criminal Procedure Code.

Thus, an application under Section 3 of the Act cannot be

maintained before the Family Court under Section 7(1) of the Family

Courts Act.

19. Section 7(2)(a) confers jurisdiction upon the Family Court

hitherto exercisable by a First Class Magistrate under Chapter IX

(relating to order for maintenance of wife, children and parents) of

the Criminal Procedure Code. Sub-section (2)(a) of Section 7 of the

Family Courts Act confers limited jurisdiction upon the Family Court

relating to those matters only as are covered under Chapter IX of

Criminal Procedure Code. Section 7(2)(b) however relates to

conferment of any additional jurisdiction on the Family Courts by

other enactments. This provision is in the nature of an enabling

provision by which legislature can enlarge the Court’s jurisdiction by

conferring additional jurisdiction.

20. The expression “conferred on it” occurring in sub-clause (b) of

Section 7(2) speaks of conferment of the jurisdiction on the Family

Court by an enactment. Thus, under Section 7(2)(b), the jurisdiction

must be specifically conferred and cannot be assumed or deemed

to have been conferred. The provisions of the Muslim Women’s

Protection Act do not confer any jurisdiction on the Family Court. As

pointed out earlier, 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. The Muslim Women’s Protection Act was

enacted in 1986 subsequent to the Family Courts Act, 1984. In the

light of the provisions, under Section 3(2) of the Muslim Women’s

Protection Act especially conferring jurisdiction upon the First Class

Judicial Magistrate, the application under Section 3 can lie only to

the Magistrate having jurisdiction in the area.

21. Considering the provisions of Section 3 of Muslim Women’s

Protection Act vis-à-vis the provisions of the Family Courts Act in

Anjum Hasan Siddiqui v. Smt. Salma B. AIR 1992 All 322, the

learned Single Judge of the Allahabad High Court held as under:-

“8. Apart from the above no application under Section 3 lies to the

district court or sub-ordinate civil court. As provided in Section 3(2) of

1986 Act, the application can be moved before the first class Magistrate

having jurisdiction in the area under the Cr.P.C. Thus, Section 7(1) does

not help the respondent at all.

9. Sub-clause (2) of Section 7 of the Family Court Act is also of no help

to the respondent since the Act confers only a limited jurisdiction relating

to those maters only as are covered by Chapter IX of the Criminal P.C.

Only this limited jurisdiction has been transferred to the Family Court. To

this extent alone, the first Class Magistrate having jurisdiction in the area

for which Family Court has been established loses his jurisdiction which

is thence forth exercisable by the Family Court only.

10. Thus, we have seen that neither under sub-section (1) nor under

sub-section (2) of Section 7 the Family Court's Act has any jurisdiction to

entertain an application of the nature contemplated by Section 3 of the

1986 Act.

11. Faced with such a situation the learned counsel for the respondent

turned to sub-sec. (2)(b). He urged that jurisdiction may be deemed to

have been conferred on the Family Court under this provision. We are

afraid, the learned counsel is again on a weak ground. The words

'conferred on it' in sub-clause (b) speaks of conferment of jurisdiction on

the Family Court by an enactment. The jurisdiction must be specifically

conferred and cannot be assumed to have been conferred. No

provisions of 1986 Act however, confers any such jurisdiction on the

Family Court. On the other hand Section 3(2) of the 1986 Act provides

that the application may be made to a Magistrate and not to the Family

Court. Apart from this the 1986 Act was enacted subsequent to

the Family Court Act and its provisions supersedes all earlier

enactments. Hence this section must prevail over the Family Courts Act,

16

1984. Thus an application under Section 3 can lie only to the Magistrate

having jurisdiction in the area.

12. Section 3 of the 1986 Act itself recognises rights of divorced Muslim

Woman, prescribes a forum for rederess thereof and prescribes the

manner of execution of the order made in that behalf. This makes the Act

complete in itself and does not depend for support on any other

enactment. The section begins with a non-obstante clause and it

overrides all other provisions of the then existing laws. Alt provisions

contrary to what is contained in S-. 3 of 1986 Act, including the Family

Courts Act , 1984, shall stand superseded by its provision. A comparison

of the provisions of 1984 and 1986 Acts would also show that the

purpose and scope of the two Acts is somewhat different. Section 3 is

only limited to certain claims enumerated therein which alone can be put

forward by a divorced Muslim Woman under the Act in the manner

prescribed…...” (Underlining added)

22. The question whether the Family Court has jurisdiction to try

application of the Muslim divorced woman for maintenance after

coming into force the Muslim Women’s Protection Act, was

considered by the Full Bench of Bombay High Court in Karim

Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and others

2000 (3) Mh.L.J. 555 which also took the same view that a Muslim

woman can apply under Sections 3 and 4 of the Muslim Women’s

Protection Act only to the First Class Magistrate having jurisdiction

under the Code and the Family Court cannot deal with such

applications and held as under:-

“61. It is important to note that there is no enactment containing an

express provision that the Family Court shall have jurisdiction to deal

with applications made by a divorced Muslim women under sections

3 and 4 of the Muslim Women Act. On the contrary, the scheme of

the Muslim Women Act shows that such application can be made only to

the Magistrate of First Class exercising jurisdiction under the Code. The

Family Court's Act is a prior enactment. Muslim Women Act does not

even refer to the Family Court's Act. If it was the intention of the

legislature to see that a Muslim women can file application before a

Family Court an express provision to that effect would have been found

in the Muslim Women Ac t . On the contrary, under section 5 of the

17

Muslim Women Act, a divorced women and her former husband can

declare that they prefer to be governed by sections 125 to 128 of the

Code and then the Magistrate has to dispose of the application

accordingly. Otherwise, the Magistrate has to deal with it as per the

provisions of the Muslim Women Act . There is no provision under which

a Muslim women can prefer to go to a Family Court by making a joint

declaration with her husband. Section 7 says that application by a

divorced women under section 125 or under section 127 of the Code

pending before a Magistrate on the commencement of the Muslim

Women Act shall notwithstanding anything contained in that Code and

subject to the provisions of section 5 of the Muslim Women Act shall be

disposed of by such Magistrate in accordance with the provisions of

the Muslim Women Ac t. This makes the legal provision very clear. It is

only a Magistrate of the First Class exercising jurisdiction under the

Code who can dispose of even the pending applications and that too in

accordance with the provisions of the Muslim Women Ac t. Therefore,

there is nothing in the provisions of the Muslim Women Act to suggest

that the Family Court has jurisdiction to entertain applications

under sections 3 and 4 of the Muslim Women Act.

62. Similar view has been taken by Division Bench of this Court in Noor

Jamaal's case (supra) and we respectfully concur with the said view. We

do not concur with decision of the Division Bench of this Court in

Allabuksh's case (supra) which holds that, where a Family Court has

been established, the power and jurisdiction of the Family Court to

entertain an application by a divorced Muslim wife is not taken away

expressly or by necessary implication by the Muslim Women Act and the

remedy under the Muslim Women Act is an additional remedy. In our

opinion, the fact that the Muslim Women Act does not refer to a Family

Court or does not say that application under sections 3 and 4 can be

filed before the Family Court is very material. If the jurisdiction of the

Family Court was sought to be protected, there would have been an

express provision making it clear that the Family Court has jurisdiction to

entertain applications of divorced Muslim women under sections

3 and 4 of the Muslim Women Act. We therefore hold that after coming

into force of the Muslim Women Act , a Muslim women can apply

under sections 3 and 4 of the said Act only to the First Class Magistrate

having jurisdiction under the Code . The Family Court cannot deal with

such applications.” [Underlining added]

23. In the present case, we are concerned with the question

whether the application under Section 3(2) of the Act of 1986 can be

filed before the Family Court or whether the Family Court can

convert the petition for maintenance under Section 125 Cr.P.C. to

one under Section 3 or Section 4 of the Act of 1986. I fully agree

18

with the view taken by the Full Bench of the Bombay High Court in

Karim Abdul Rehman Sheikh case. 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, in my view, the Family Court cannot entertain the

application of divorced Muslim woman under Sections 3 and 4 of

the Muslim Women’s Protection Act, 1986.

24. The learned counsel for the appellant placed reliance upon

the judgment in Iqbal Bano case and submitted that in the said

case, the Magistrate has converted the petition for maintenance

under Section 125 Cr.P.C. to the application under Section 3 of the

Muslim Women’s Protection Act, 1986 and the same was upheld by

the Supreme Court. The facts of the Iqbal Bano case are clearly

distinguishable from the facts of the present case. In Iqbal Bano

case, the application under Section 125 Cr.P.C. was made before

the Magistrate which also had jurisdiction to entertain application

under Section 3 of the Muslim Women’s Protection Act. In that

context, the Supreme Court upheld the order converting the

application under Section 125 Cr.P.C. as the one under Section 3 of

the Muslim Women’s Protection Act.

25. Therefore, the application under Section 3(2) of the Act of

1986 by the divorced wife has to be filed before the competent

19

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, in my view, 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. I do not find any reason

warranting interference with the impugned order.

26. In the result, the appeal is dismissed. The High Court has

given liberty to appellant No.1 to file application under Section 3 of

the Act of 1986 before the competent Magistrate. The application if

any already filed by the appellant No.1 or any application to be filed

before the competent Magistrate of the First Class shall be heard

and disposed of as expeditiously as possible. The Magistrate of the

First Class shall not be influenced by any of the views expressed by

this Court or by the High Court and shall consider the matter on its

own merits.

…………….……………J.

[R. BANUMATHI]

New Delhi;

June 18, 2020

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.192 OF 2011

RANA NAHID @ RESHMA

@ SANA & ANR. ...APPELLANTS

VERSUS

SAHIDUAL HAQ CHISTI .. RESPONDENT

J U D G M E N T

Indira Banerjee, J.

I have gone through the judgment prepared by my esteemed

sister, but I have not been able to persuade myself to agree that a

Family Court constituted under the Family Courts Act, 1984, lacks

jurisdiction to convert an application for maintenance filed by a

Muslim woman under Section 125 of the Code of Criminal

Procedure 1973 (hereinafter referred to as “Cr.P.C”) to an

application under Section 3 of the Muslim Women (Protection of

Rights on Divorce) Act, 1986, (hereinafter referred to as the “1986

Act for Muslim Women”), and decide the same.

2

2. The facts giving rise to this appeal, have been narrated by

my esteemed sister and are not repeated to avoid prolixity.

3. The Family Courts Act, 1984 has been enacted to provide for

the establishment of Family Courts inter alia with a view to secure

speedy settlement of disputes relating to marriage and family

affairs and for matters connected therewith.

4. The Statement of Objects and Reasons for enactment of the

Family Courts Act records that several associations of women,

other organizations and individuals from time to time, demanded

that Family Courts be set up for the settlement of family disputes,

where emphasis should be laid on conciliation and achieving

socially desirable results and adherence to rigid rules of procedure

and evidence should be eliminated.

5. The Law Commission had, in its 59th Report submitted in

1974, stressed that in dealing with disputes concerning the family,

the Court ought to adopt an approach, radically different from that

adopted in ordinary civil proceedings, and that it should make

reasonable efforts at settlement before the commencement of the

trial. In 1976, the Code of Civil Procedure was amended to

provide for a special procedure to be adopted in suits and

proceedings relating to matters concerning the family.

3

6. Parliament enacted the Family Courts Act to provide for

establishment of Family Courts with a view to promote conciliation

in, and secure speedy settlement of disputes relating to marriage

and family affairs, and matters connected therewith.

7. 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.

8. The Family Courts established under Section 3 of the Family

Courts Act, derive jurisdiction from Section 7 of the said Act which

is set out hereinbelow for convenience:-

“7. Jurisdiction

(1) Subject to the other provisions of this Act, a Family

Court shall—

(a) have and exercise all the jurisdiction exercisable by any

district court or any subordinate civil court under any law

for the time being in force in respect of suits and

proceedings of the nature referred to in the Explanation;

and

(b) be deemed, for the purposes of exercising such

jurisdiction under such law, to be a district court or, as the

case may be, such subordinate civil court for the area to

which the jurisdiction of the Family Court extends.

Explanation.—The suits and proceedings referred to in this

sub-section are suits and proceedings of the following

nature, namely:—

(a) a suit or proceeding between the parties to a marriage

4

for a decree of nullity of marriage (declaring the marriage

to be null and void or, as the case may be, annulling the

marriage) or restitution of conjugal rights or judicial

separation or dissolution of marriage;(b) a suit or

proceeding for a declaration as to the validity of a marriage

or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage

with respect to the property of the parties or of either of

them;

(d) a suit or proceeding for an order or injunction in

circumstance arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the

legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of

the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family

Court shall also have and exercise—

(a) the jurisdiction exercisable by a Magistrate of the first

class under Chapter IX (relating to order for maintenance of

wife, children and parents) of the Code of Criminal

Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any

other enactment.”

9. Section 8 of the Family Courts Act provides :-

‘Exclusion of jurisdiction and pending proceedings.

Where a Family Court has been established for any area,—

(a) no district court or any subordinate civil court referred

to in sub-section (1) of section 7 shall, in relation to such

area, have or exercise any jurisdiction in respect of any suit

or proceeding of the nature referred to in the Explanation to

that sub-section;

(b) no magistrate shall, in relation to such area, have or

exercise any jurisdiction or powers under Chapter IX of the

Code of Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature referred to in the

Explanation to sub-section (1) of section 7 and every

proceeding under Chapter IX of the Code of Criminal

5

Procedure, 1973 (2 of 1974),—

(i) which is pending immediately before the establishment

of such Family Court before any district court or

subordinate court referred to in that sub-section or, as the

case may be, before any magistrate under the said Code;

and

(ii) which would have been required to be instituted or

taken before such Family Court if, before the date on which

such suit or proceeding was instituted or taken, this Act had

come into force and such Family Court had been

established,

shall stand transferred to such Family Court on the date on

which it is established.”

10. 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.

11. A Family Court, constituted for adjudication of family

disputes, is quite different from the regular Criminal and Civil

Courts. The atmosphere in these Courts is much more informal

and far less intimidating than the atmosphere in regular Civil and

Criminal Courts. These Courts are not bound by rules of evidence

and rules of procedure. The Family Courts have the power to

devise their own procedure for adjudication of family disputes.

6

12. Section 5 of the Family Courts Act contemplates association

with Family Courts, of social welfare organizations, persons

professionally engaged in promoting welfare of the family, persons

working in the field of social welfare and any other persons, whose

association with the Family Court, would enable it to exercise its

jurisdiction more effectively, in accordance with the purposes of

the Family Courts Act.

13. Section 6 of the Family Courts Act provides for appointment,

inter alia, of counsellors to assist a Family Court, in the discharge

of its functions, and Section 9 of the Family Courts Act casts a

duty on the Family Courts to endeavour, wherever it is possible, to

assist and persuade the parties in arriving at a settlement in

respect of the subject matter of the suit or proceeding, and for this

purpose a Family Court may, subject to any rules made by the

High Court, follow such procedure as it may deem fit. Unlike a

Criminal Court or a Civil Court, a Family Court is obliged to adjourn

proceedings, whenever there is reasonable possibility of

settlement between the parties.

14. The Family Court is to be deemed to be a Civil Court and

have all the powers of such Court under Section 10 of the Family

Courts Act, and subject to the other provisions of the Family Courts

Act and the Rules made thereunder, the provisions of the Civil

Procedure Code, 1908 (hereinafter referred to as ‘CPC’) apply to

7

suits and proceedings before the Family Court, except for

proceedings under Chapter IX of the Cr.P.C.

15. Notwithstanding sub-section (1) and sub-section (2) of

Section 10 of the Family Courts Act, which makes the provisions of

the CPC applicable to suits and proceedings before the Family

Court, other than those under Chapter IX of the Cr.P.C., and the

provisions of the Cr.P.C. applicable to all the proceedings under

Chapter IX of that Code, it is open to the Family Court to lay down

its own procedure with a view to arrive at a settlement in respect

of the subject matter of the suit or proceeding.

16. Section 12 of the Family Courts Act envisages the assistance

inter alia of professional experts in the field of family welfare,

whether or not related to the parties, to assist the Family Courts in

discharging their functions imposed by the Family Courts Act.

17. An important facet of the Family Courts Act is Section 13 of

the said Act, which provides that notwithstanding anything

contained in any law, no party to any suit or proceedings before a

Family Court, shall be entitled as of right, to be represented by a

legal practitioner. If the Family Court considers it necessary in the

interest of justice, it may seek the assistance of a legal expert as

amicus curiae. In this country, women are, by and large,

economically weaker. In the regular Civil and Criminal Courts,

8

economically weak applicants, unable to afford lawyers of standing

could be pitted against the best legal brains hired by financially

strong opponents. However, in proceedings for maintenance in

the Family Court, the parties are equally poised, with the same

standard of legal representation.

18. Another significant feature of the Family Courts Act is

Section 14, which enables a Family Court to receive as evidence,

any report, statement, document, information or matter that may

in its opinion help to deal effectively with a dispute, whether or

not the same would be otherwise relevant or admissible under the

Indian Evidence Act, 1872.

19. Under Section 16 of the Family Courts Act, the evidence of

any person which is of a formal character, may be given by

affidavit, and subject to just exceptions, be read in evidence in any

suit or proceedings before a Family Court.

20. Therefore, in proceedings for maintenance, in a Family Court,

Certificates, Documents etc. issued by Authorities/Employers etc.

may be proved by affidavits, without requiring presence in Court of

disinterested witnesses, whose failure and/or inability to appear in

Court on the dates of hearing often delays the proceedings.

9

21. Section 18 of the Family Courts Act makes a decree or order

other than an order under Chapter IX of the Cr.P.C. executable in

the same manner as a decree of a Civil Court, as prescribed by the

CPC. An order under Chapter IX of the Cr.PC may be executed in

the manner prescribed for the execution of such order by the Cr.PC

22. Where a Family Court has been established for any area,

Section 8 of the Family Courts Act denudes the District Court or

any Subordinate Civil Court referred to in sub-section (1) of Section

7 of jurisdiction in respect of any suit or proceeding of the nature

referred to in the Explanation to that sub-section.

23. Section 8(b) of the Family Courts Act prohibits any

Magistrate from exercising jurisdiction or powers under Chapter IX

of the CR.P.C. in relation to any area for which a Family Court has

been established.

24. It is important to note that Section 20 of the Family Courts

Act, with its non-obstante 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.

10

25. The non-obstante clause in Section 20 makes the legislative

intent in enacting the Family Courts Act absolutely clear. The

provisions of the Act are to have effect, notwithstanding anything

inconsistent in any other law for the time being in force. In my

view, the expression “in any other law, for the time being in force”,

cannot be construed narrowly to mean a law which was in force on

the date of enactment and/or enforcement of the Family Courts

Act, as sought to be argued by Counsel appearing on behalf of the

respondent. The expression “any other law for the time being in

force” would include subsequently enacted laws, in force, as long

as Section 20 of the Family Courts Act is in operation.

26. On a reading of Sections 7(1) and 7(2) of the Family Courts

Act, it is patently clear that a Family Court is deemed to be a

District Court, or as the case may be Subordinate Civil Court, in the

area to which the jurisdiction of the Family Court extends, in

respect of proceedings of the nature, referred to in the Explanation

to Section 7(1) and is to be deemed to be the Court of a Magistrate

of the First class for the purpose of exercising jurisdiction under

Chapter IX of the Cr.P.C. Proceedings for maintenance are

essentially civil proceedings.

27. As observed above, the Family Courts have jurisdiction in

respect of the matters specified in the Explanation (f) of Section

11

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.

28. The relevant provisions of Chapter IX of the Cr.P.C. are set

out hereinbelow for convenience:

“CHAPTER IX

ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

125. Order for maintenance of wives, children and

parents.- (1) If any person having sufficient means

neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether

married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a

married daughter) who has attained majority, where such child,

is, by reason of any physical or mental abnormality or injury

unable to maintain itself, or

(d) his father or mother, unable to maintain himself or

herself, a Magistrate of the first class may, upon proof of

such neglect or refusal, order such person to make a monthly

allowance for the maintenance of his wife or such child, father or

mother, at such monthly rate, as such Magistrate thinks fit, and to

pay the same to such person as the Magistrate may from time to

time direct;

… Explanation.- For the purposes of this Chapter,-

(a) “minor” means a person who, under the provisions of the

Indian Majority Act, 1875 (9 of 1875) is deemed not to have

attained his majority;

(b) “wife includes a woman who has been divorced by, or

12

has obtained a divorce from, her husband and has not

remarried.

….

126. Procedure.- (1) Proceedings under section 125 may be

taken against any person in any district-

(a) where he is, or

(b) where he or his wife, resides, or

(c) where he last resided with his wife, or as the case may be,

with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the

presence of the person against whom an order for payment of

maintenance is proceeded to be made, or, when his personal

attendance is dispensed with, in the presence of his pleader, and

shall be recorded in the manner prescribed for summons- cases:

Provided that if the Magistrate is satisfied that the person

against whom an order for payment of maintenance is proposed

to be made is wilfully avoiding service, or wilfully neglecting to

attend the Court, the Magistrate may proceed to hear and

determine the case ex parte and any order so made may be set

aside for good cause shown on an application made within three

months from the date thereof subject to such terms including

terms at to payment of costs to the opposite party as the

Magistrate may think just and proper.

(3) The Court in dealing with applications under section 125 shall

have power to make such order as to costs as may be just.

127. Alteration in allowance.-…….

128. Enforcement of order of maintenance.- A copy of the

order of [maintenance or interim maintenance and expenses of

proceeding, as the case may be,] shall be given without payment

to the person in whose favour it is made, or to his guardian, if any

or to the person to [whom the allowance for the maintenance or

the allowance for the interim maintenance and expenses of

proceeding, as the case may be,] is to be paid; and such order

may be enforced by any Magistrate in any place where the person

against whom it is made may be, on such Magistrate being

satisfied as to the identity of the parties and the non- payment of

the [allowance, or as the case may be, expenses, due].”

13

29. The right to equality, irrespective of religion, is a basic

human right, recognized, reaffirmed and reiterated in the Universal

Declaration of Human Rights adopted by the United Nations on

December 10, 1948. Article 2 of the declaration reads:

“Article 2 : Everyone is entitled to all the rights and

freedoms set forth in the declaration, without distinction

of any kind, such as race, colour, sex, language, religion,

political or other opinion, national or social origin,

property, birth or other status.”

30. The International Covenant for Civil and Political Rights

(ICCPR) obligates the state parties to ensure equal right of women

to enjoyment of all rights mentioned in each of the covenants. This

right is irrespective of religion. Article 14 of the ICCPR mandates

“All persons shall be equal before the Courts and Tribunals ” and

Article 26 declares that “all persons are equal under the law and

are entitled without any discrimination, to equal protection of the

law…”.

31. The Convention on the Elimination of All Forms of

Discrimination against Women 1979, commonly referred to as

CEDAW, recognizes amongst others, the right of women to equality

irrespective of religion, as a basic human right. Article 2 of CEDAW

exhorts State Parties to ensure adoption of a woman friendly legal

system and woman friendly policies and practices.

14

32. As a signatory to the CEDAW, India is committed to adopt a

woman friendly legal system and woman friendly policies and

practices. The 1986 Act for Muslim Women, being a post CEDAW

law, this Court is duty bound to interpret the provisions of the said

Act substantively, liberally, and purposefully, in such a manner as

would benefit women of the Muslim community.

33. Under the Indian Constitution, the right to equality is a

fundamental right. All persons are equal before the law and are

entitled to equal protection of the laws, be it substantive law or

procedural law. Article 15 of the Constitution of India clearly

prohibits discrimination on grounds, inter alia, of religion or sex.

34. The competing and conflicting principles of religious freedom

of citizens and gender equality for women, has posed a major

challenge to the judiciary in India. Personal laws of the Muslims,

which are governed by the Shariat law, are protected under the

umbrella of religious freedom and therefore immune from

challenge on the ground of violation of any fundamental right or

other constitutional right. Procedural laws would not, however,

enjoy the same immunity to challenge which substantive Muslim

Personal Laws enjoy.

35. Section 125 of the Cr.P.C. is a beneficial piece of legislation,

specially enacted as a measure of social justice, the dominant

15

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.

36. Proceedings under Section 125 of the Cr.P.C. are of a civil

nature, as held by this Court in Vijay Kumar Prasad v. State of

Bihar1. There is no penal provision for neglect and/or failure to

maintain a wife or a divorced wife. However, non compliance of an

order of maintenance attracts the penal provisions of the Cr.P.C. In

Zohara Khatoon and Anr. v. Mohd. Ibrahim2, this Court held

that wife includes a woman who has obtained a decree for

dissolution of marriage under the Dissolution of Muslim Marriages

Act, 1939.

37. In Md. Ahmed Khan v. Shah Bano Begum and Others3,

this Court held that Section 125 of the Cr.P.C, which obliges a

husband to pay maintenance to his wife, including a divorced wife,

cannot be overridden by the personal laws of the Muslims.

1. (2004) 5 SCC 196

2. (1981) 2 SCC 509

3. (1985) 2 SCC 556

16

38. This Court held that although Muslim law limits the

husband’s liability to provide for maintenance of the divorced wife

to the period of iddat, it would be unjust to extend this principle of

Muslim law to a case, where a divorced wife is unable to maintain

herself, in which case she could have recourse to Section 125 of

the Cr.PC. Unfortunately, the aforesaid judgment led to protests,

from a section of the Muslim community, after which Parliament

enacted the 1986 Act for Muslim Women, which nullified the effect

of the judgment of this Court in the Shah Bano Case (supra).

39. 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.

40. Section 3 of the 1986 Act for Muslim Women provides:-

“Section 3. Mahr or other properties of Muslim

woman to be given to her at the time of divorce.

(1) Notwithstanding anything contained in any other law

for the time being in force, a divorced woman shall be

entitled to

(a) a reasonable and fair provision and maintenance to be

made and paid to her within the iddat period by her

former husband;

(b) where she herself maintains the children born to her

before or after her divorce, a reasonable and fair

provision and maintenance to be made and paid by her

former husband for a period of two years from the

respective dates of birth of such children;

17

(c) an amount equal to the sum of mahr or dower agreed

to be paid to her at the time of her marriage or at any

time thereafter according to Muslim law; and

(d) all the properties given to her before or at the time of

marriage or after her marriage by her relatives or friends

or the husband or any relatives of the husband or his

friends.

(2) Where a reasonable and fair provision and

maintenance or the amount of mahr or dower due has

not been made or paid or the properties referred to in

clause (d) of sub-section (1) have not been delivered to a

divorced woman on her divorce, she or any one duly

authorised by her may, on her behalf, make an

application to a Magistrate for an order for payment of

such provision and maintenance, mahr or dower or the

delivery of properties, as the case may be.

(3) Where an application has been made under subsection

(2) by a divorced woman, the Magistrate may, if

he is satisfied that— (a) her husband having sufficient

means, has failed or neglected to make or pay her within

the iddat period a reasonable and fair provision and

maintenance for her and the children; or (b) the amount

equal to the sum of mahr or dower has not been paid or

that the properties referred to in clause (d) of sub-section

(1) have not been delivered to her, 3 make an order,

within one month of the date of the filing of the

application, directing her former husband to pay such

reasonable and fair provision and maintenance to the

divorced woman as he may determine as it and proper

having regard to the needs of the divorced woman, the

standard of life enjoyed by her during her marriage and

the means of her former husband or, as the case may be,

for the payment of such mahr or dower or the delivery of

such properties referred to in clause (d) of sub-section (1)

the divorced woman: Provided that if the Magistrate finds

it impracticable to dispose of the application within the

said period, he may, for reasons to be recorded by him,

dispose of the application after the said period.

(4) If any person against whom an order has been made

under sub-section (3) fails without sufficient cause to

comply with the order, the Magistrate may issue a

warrant for levying the amount of maintenance or mahr

or dower due in the manner provided for levying fines

under the Code of Criminal Procedure, 1973 (2 of 1974),

and may sentence such person, for the whole or part of

18

any amount remaining unpaid after the execution of the

warrant, to imprisonment for a term which may extend to

one year or until payment if sooner made, subject to

such person being heard in defence and the said

sentence being imposed according to the provisions of

the said Code.

41. Under Section 3(1) of the 1986 Act for Muslim Women, a

divorced Muslim woman would be entitled to (a) a reasonable and

fair provision and maintenance to be made and paid to her within

the iddat period by her former husband; (b) where she herself

maintains the children born to her before or after her divorce, a

reasonable and fair provision and maintenance to be made and

paid by her former husband for a period of two years from the

respective dates of birth of such children; (c) an amount equal to

the sum of mahr or dower agreed to be paid to her at the time of

her marriage, or at any time thereafter, according to Muslim law;

and (d) to all the properties given to her before or at the time of

marriage or after her marriage by her relatives or friends or the

husband or any relatives of the husband or his friends.

42. Section 3(1) of the 1986 Act for Muslim Women, starts with a

non obstante clause. The non-obstante clause in Section 3(1)

gives overriding effect to the substantive provisions of Section

3(1) of 1986 Act for a Muslim women. A divorced Muslim woman

would be entitled to maintenance in accordance with Section 3(1)

of the 1986 Act for Muslim Women, notwithstanding anything

contained in any other law in force, including Sections 125 to 128

19

of the Cr.P.C. The non-obstante clause is restricted in its

application to sub section (1) of Section 3. It does not apply to

sub-Sections (2) and (3) of the 1986 Act for Muslim Women.

43. Section 2(c) of the 1986 Act for Muslim women defines

“Magistrate to mean Magistrate of the First Class, exercising

jurisdiction under the Code of Criminal Procedure, 1973 in the area

where the divorced woman resides”.

44. Section 4 of the 1986 Act for Muslim Women, enabling the

Magistrate to direct relatives to pay maintenance in certain

circumstances, is not relevant for the purpose of this application.

Section 5 which gives the option to the divorced woman and her

husband to be governed by the provisions of Section 125 to 128 of

the Cr.P.C., provided they give a declaration by affidavit, is also not

attracted in this case, since the Respondent has not agreed to be

governed by the provisions of Sections 125 to 128 of the Cr.P.C.

45. Section 7 provides that every application by a divorced

Muslim woman under Section 125 or Section 127 of the Cr.P.C.,

pending before a Magistrate at the time of commencement of the

1986 Act for Muslim Women shall, notwithstanding anything

contained in that Code, and subject to the provisions of Section 5

of the 1986 Act for Muslim Women, of exercising option to be

governed by the aforesaid provisions of the Code, be disposed by

20

the Magistrate in accordance with the provisions of 1986 Act for

Muslim women.

46. In this case, the appellant made an application under Section

125 of Cr.P.C. claiming maintenance as wife. In course of the

proceedings, it transpired that the appellant’s husband had

divorced her by the ‘Triple Talaq’ method, after which the

application of the appellant was treated as an application under

Section 3 of the 1986 Act for Muslim Women. It may be pertinent

to note that divorce by the ‘Triple Talaq’ is no longer valid, after

enactment of the Muslim Women (Protection of Rights on

Marriage) Act, 2019.

47. The question which arises for determination of this Court is,

whether the 1986 Act for Muslim Women, particularly Section 3(2),

3(3), 3(4), 4(c), 4(2) and 7 thereof read with the definition of

“Magistrate” in Section 2(c), impliedly bars the jurisdiction of the

Family Court to entertain or decide an application filed by a

divorced Muslim Woman for maintenance. A rigid, constricted

reading of the 1986 Act for Muslim Women, to denude the Family

Courts constituted under the Family Courts Act of jurisdiction to

decide an application thereunder, is in my view impermissible in

law.

21

48. 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 in my view, was never the legislative

intent of the 1986 Act for Muslim Women.

49. 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. This proposition finds

support from the judgment of this Court in State of West Bengal

v. Anwar Ali Sarkar reported in AIR 1952 SC 75. Reference

may also be made to the judgment of this Court in D.K. Yadav v.

J. M. A. Industries Ltd. reported in (1993) 3 SCC 259 where

this Court held:

“10. In State of W.B. v. Anwar Ali Sarkar per majority, a

seven-Judge Bench held that the rule of procedure laid

down by law comes as much within the purview of Article

14 of the Constitution as any rule of substantive law...”

22

50. In Lachhman Dass v. State of Punjab reported in AIR

1963 SC 222, a Constitution Bench of this Court accepted that

Article 14 prohibited discriminatory legislation whether substantive

or procedural. However, the majority found that Article 14 did not

forbid reasonable classification and accordingly rejected a

challenge to a law which provided a special procedure for the

recovery of dues from the customers of State Bank. In Lachhman

Dass (supra) the majority held:

“22….The law is now well settled that while Art.14

prohibits discriminatory legislation directed against one

individual or class of individuals, it does not forbid

reasonable classification, and that for this purpose even

one person or group of persons can be a class.

Professor Willis says in his Constitutional Law p.580 “a

law applying to one person or one class of persons is

constitutional if there is sufficient basis or reason for

it…

23. On the principles stated above we are of the

opinion that the Patiala State Bank is a class by itself

and it will be within the power of the State to enact a

law with respect to it. We are also of the opinion that

the differentia between the Patiala State Bank and the

other Banks has a rational bearing on the object of the

legislation. If the Funds of the Patiala State Bank are

State Funds, a law which assimilates the procedure for

the determination and recovery of amounts due to the

Bank from its customers to that prescribed for the

determination and recovery of arrears of revenue must

be held to have a just and reasonable relation to the

purpose of the legislation. A law which provides for

State funds being advanced to customers through State

Bank can also provide for its being recovered in the

same manner as revenue….”

51. Subba Rao J., delivering a separate dissenting judgment

held:

“51. It is also well settled that the guarantee of equal

protection applies against substantive as well as

23

procedural laws. Jennings in his “Law of the

Constitution”, 3rd Edn., p.49 describes the idea of

equality of treatment thus:..’

52. It is true that the view of Subba Rao J. was the minority view.

However, there was no difference between the majority and the

minority with the proposition of law summarized by Subba J. as

quoted above.

53. In Meenakshi Mills v. Vishvanatha Sastri reported in AIR

1955 SC 13, a Constitution Bench of this Court held:

“6. …. Article 14 of this Part guarantees to all persons

the right of equality before the law and equal protection

of the laws within the territory of India. This article not

only guarantees equal protection as regards

substantive laws but procedural laws also come

within its ambit. The implication of the article is that

all litigants similarly situated are entitled to avail

themselves of the same procedural rights for relief, and

for defence with like protection and without

discrimination. The procedural provisions of Act 30 of

1947 had therefore to stand the challenge of Article 14

and could only be upheld provided they withstood that

challenge.”

54. In Budhan Choudhry v. State of Bihar reported in AIR

1955 SC 191, a seven Judge Constitution Bench of this Court

decided a challenge to Section 30 of the Cr.P.C observing that:

“5. The provisions of Article 14 of the Constitution have

come up for discussion before this Court in a number of

cases, namely, Chiranjit Lal Chowdhuri v. Union of India

[AIR 1951 SC 41], State of Bombay v. F.N. Balsara [AIR

1951 SC 318], State of West Bengal v. Anwar Ali Sarkar

[AIR 1952 SC 75], Kathi Raning Rawat v. State of

Saurashtra[AIR 1952 SC 123], Lachmandas Kewalram

Ahuja v. State of Bombay [AIR 1952 SC 235] and Qasim

Razvi v. State of Hyderabad [AIR 1953 SC 156] and

24

Habeeb Mohamad v. State of Hyderabad [AIR 1953 SC

287]. It is, therefore, not necessary to enter upon any

lengthy discussion as to the meaning, scope and effect

of the article in question. It is now well established that

while Article 14 forbids class legislation, it does not

forbid reasonable classification for the purposes of

legislation. In order, however, to pass the test of

permissible classification two conditions must be

fulfilled, namely, (i) that the classification must be

founded on an intelligible differentia which

distinguishes persons or things that are grouped

together from others left out of the group and (ii) that

differentia must have a rational relation to the object

sought to be achieved by the statute in question. The

classification may be founded on different bases;

namely, geographical, or according to objects or

occupations or the like. What is necessary is that there

must be a nexus between the basis of classification and

the object of the Act under consideration. It is also

well established by the decisions of this Court

that Article 14 condemns discrimination not only

by a substantive law but also by a law of

procedure. The contention now put forward as to

the invalidity of the trial of the appellants has,

therefore to be tested in the light of the

principles so laid down in the decisions of this

Court.”

55. 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 as enumerated

hereinabove, notwithstanding any other law including Section 125

of the Cr.PC.

56. It is now settled that 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,

25

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.

57. The constitutional validity of the 1986 Act for Muslim Women

has been upheld by this Court in Danial Latifi and Another v.

Union of India (supra). There is however, no authoritative

decision of this Court on the question of whether the Family Courts

have jurisdiction to decide an application of a Muslim Woman for

maintenance under the provisions of the 1986 Act for Muslim

women.

58. As observed above 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

26

Family Courts Act, the Family Court may exercise such other

jurisdiction as may be conferred on it by any other enactment.

59. 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.

60. Section 8 excludes the jurisdiction of District Court or

Subordinate Civil Court in respect of any suit or proceeding of the

nature referred to in the Explanation to sub-Section (1) of Section

7 and also excludes the jurisdiction of a Magistrate in relation to an

application under Chapter IX of the Cr.P.C., once a Family Court is

constituted with territorial jurisdiction coextensive with that of the

District Courts or the Subordinate Civil Courts or the Courts of First

Class Magistrates under Chapter IX of the Cr.P.C. There has not

been any amendment in the Family Courts Act after enactment of

the 1986 Act for Muslim Women to expressly confer jurisdiction on

Family Courts in respect of proceedings under the 1986 Act for

Muslim Women.

61. It has thus been argued on behalf of the Respondent that the

Family Courts do not have the jurisdiction exercisable by a

Magistrate of the First Class under the 1986 Act for Muslim

Women, since the 1986 Act for Muslim Women, does not confer

27

any such jurisdiction on the Family Courts, and Section 7 read with

Section 8 of the Family Courts Act only clothes the Family Court

with the jurisdiction of the First Class Magistrate in respect of

proceeding for maintenance under Chapter IX of the Cr.P.C.

62. If there is any ambiguity, with regard to the jurisdiction of

the Family Court, by reason of use of the expression subordinate

Civil Court in Section 7(1)(a) and (b) of the Family Courts Act and

the specification of Magistrate of the First Class exercising

jurisdiction under Chapter IX of the Cr.P.C. in Section 7(2)(a)

thereof, this Court is duty bound to clear the ambiguity by

interpreting the law in consonance with the fundamental rights

conferred under Articles 14 and 15 of the Constitution, and the

country’s commitments under International Instruments and

Covenants such as the CEDAW, keeping in mind the fact that the

Family Courts Act was enacted two years before the 1986 Act for

Muslim Women.

63. In Iqbal Bano v. State of UP and Another4, this Court

held that the 1986 Act for Muslim Women only applies to divorced

women and not to a woman who was not divorced. In the

aforesaid case, this Court held that proceedings under Section 125

of the Cr.P.C. were civil in nature, and if it were noticed that there

was a divorced Muslim woman who had made an application under

4 (2007) 6 SCC 785

Section 125 Cr. P.C., it was open to the Court to treat the same as

a petition under the 1986 Act for Muslim Women, considering the

beneficial nature of the legislation.

64. Sub-section (2) of Section 3 provides that where a

reasonable and fair provision and maintenance or the amount of

mahr or dower due has not been made or paid or the properties

referred to in clause (d) of sub-section (1) of Section 3 have not

been delivered to a divorced woman on her divorce, she or any

one duly authorized by her may, on her behalf, make an

application to a Magistrate for an order for payment of such

provision and maintenance, mahr or dower or the delivery of

properties, as the case may be. In my view, a Family Court having

jurisdiction is to be deemed to be the Court of a Magistrate, for the

purpose of deciding the claim of a divorced Muslim Woman to

maintenance, on a harmonious conjoint reading and construction

of Sections 7 and 8 of the Family Courts Act with Sections 3(2),

3(3), 4(1), 4(2), 5 and 7 of the 1986 Act for Muslim Women, in the

light of the overriding provision of Section 20 of the Family Courts

Act.

65. Sub-section (2) of Section 3 is an enabling provision which

enables a divorced Muslim woman to make an application to a

Magistrate for an order for payment of maintenance or mehr or

dower or delivery of properties, as the case may be. The non29

obstante clause is restricted to sub-section (1) of Section 3 and

does not cover sub-section (2) of Section 3 of the 1986 Act for

Muslim Women. There is no conflict between Section 3(2) of the

1986 Act for Muslim women and the Family Courts Act. On the

other hand, Section 20 of the Family Courts Act, 1984 gives

overriding effect to the Family Courts Act notwithstanding anything

therewith contained in any other law in force. The Family Court is

to exercise all the jurisdiction exercisable by any District Court or

any other subordinate Civil court in respect of a proceeding for

maintenance.

66. 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 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.

67. Though divorced Muslim women are excluded from the

purview of Section 125 of the Cr.PC by reason of the 1986 Act for

Muslim Women, Parliament has in its wisdom considered it

necessary to make provisions for expeditious orders in

applications for maintenance filed by divorced Muslim women. It

is with this object in mind that Muslim women have been given the

liberty of approaching the Magistrate and the Magistrate is

required to make an order within one month from the date of filing

of the application and the order of the Magistrate is executable in

the same manner for levying fines under the Cr.PC. Violation of an

order of the Magistrate entails sentence of imprisonment for a

term which might extend to one year or until payment if sooner

made, subject to such person being heard in defence and the

sentence being imposed according to the provisions of the Cr.PC.

68. In my view, 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.

69. If proceedings under Section 125 Cr.P.C. are civil in nature as

held by this Court in Iqbal Bano (Supra), the Court of the

Magistrate dealing with an application under Section 125 Cr.P.C. is

to be deemed a Civil Court for the purpose of deciding the

application under Section 125 Cr.P.C. On a parity of reasoning, an

application under Section 3/4 of the 1986 Act for Muslim Women is

also civil in nature. The Court deciding an application under

Section 3/4 of the 1986 Act for Muslim Women is to be deemed to

be a Civil Court.

70. Thus, 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.

71. 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.

72. It is true, that a matter which should have been, but has not

been provided for in a statute cannot be supplied by courts, as to

do so will be legislation and not construction. But there is no

presumption that a ‘casus omissus’ exists and language

permitting, the courts should avoid creating a ‘casus omissus’

where there is none.

32

73. To quote Denning, L.J. in Seaford Court Estates Ltd. v.

Asher reported in (1949) 2 All ER 155:

“When a defect appears a judge cannot simply fold

his hands and blame the draftsman. He must set to

work on the constructive task of finding of the

intention of Parliament and then he must

supplement the written words so as to give ‘force

and life’ to the intention of the Legislature. A judge

should ask himself the question how, if the makers of

the Act had themselves come across this ruck in the

texture of it, they would have straightened it out? He

must then do as they would have done. A judge

must not alter the material of which the act is

woven, but he can and should iron out the creases”.

74. The Supreme Court, while dealing with the definition of

‘Industry’ in the Industrial Disputes Act, 1947, in Bangalore

Water Supply v. A. Rajappa5, approved the rule of construction

stated by Denning, L.J. This Court found the definition too general

and ambiguous. BEG, C.J.I., said that the situation called for “some

judicial heroics to cope with the difficulties raised”. Krishna Iyer, J.

who delivered the leading majority judgment in that case referred

with approbation to the passage extracted above, from the

judgment of Denning, L.J. in Seaford Court Estates Ltd. v.

Asher (supra).

75. The proposition of law which emerges from the judgments

referred to above is that, in discharging its interpretative function,

the court can even correct obvious drafting errors. In an

5 AIR 1978 SC 548

33

appropriate case, “the court will add words, or omit words or

substitute words”. But “before interpreting a statute in this way

the Court must be abundantly sure of three matters: (1) the

intended purpose of the statute or provision in question, (2) that

by inadvertence the draftsman and Parliament failed to give effect

to that purpose in the provision in question; and (3) the substance

of the provision Parliament would have made, although not

necessarily the precise words Parliament would have used, had the

error in the Bill been noticed.”

76. Of course in this case, this Court has not added, omitted or

substituted anything. This Court has only given a purposive

interpretation to the expression Subordinate Civil Court in Section

7 of the Family Courts Act to include the Court of a Magistrate

empowered to entertain proceedings for maintenance under the

1986 Act for Muslim Women, which are in essence and substance,

civil proceedings.

77. To quote Venkatarama Aiyar, J. in Tirath Singh v. Bachittar

Singh6 “where the language of a statute, in its ordinary meaning

and grammatical construction, leads to a manifest contradiction of

the apparent purpose of the enactment, or to some inconvenience

or absurdity, hardship or injustice, presumably not intended, a

construction may be put upon it which modifies the meaning of

6. AIR 1955 SC 830

34

the words, and even the structure of the sentence.”

78. Tirath Singh v. Bachittar Singh (supra) has been

followed in innumerable judgments of this Court and the passage

extracted above has been quoted with approval in Modern

School v. Union of India reported in (2004) 9 SCC 741.

79. I am of the view that the Family Court, for the reasons

discussed above, 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.

80. The appeal should, in my view, be allowed. The judgment

and order under appeal are liable to be set aside.

.................................J

(INDIRA BANERJEE)

JUNE 18, 2020

NEW DELHI

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 192 OF 2011

RANA NAHID @ RESHMA @ SANA Vs SAHIDUL HAQ CHISTI

O R D E R

In view of difference of opinions and the distinguishing

judgments (Hon'ble R. Banumathi, J. dismissed the appeal and

Hon'ble Indira Banerjee, J. allowed the appeal), the matter

be placed before Hon'ble the Chief Justice of India for

referring the matter to the Larger Bench.

……………………………………………………….J.

[R. BANUMATHI]

NEW DELHI …………………………………………………...J.

18TH JUNE, 2020 [INDIRA BANERJEE]

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