An Issue Of Jurisdiction Of The Family Court Under Muslim Women (Protection Of Rights On Divorce) Act,1986 : In Reference To The Decision In Rana Nahid v. Sahisul Haq Chisti

Facts/Background of the case:

A Muslim woman filed a petition in Family Court, Ajmer, under Section 125 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") to seek maintenance from her husband (respondent), alleging that she was subjected to cruelty and harassment for additional dowry and that she was thrown out of matrimonial home. The petition was later amended when the couple got divorced on 23.4.2008.

The Family Court held that the petition for maintenance under Section 125 Cr.P.C. is not maintainable in view of Iqbal Bano v. State of Uttar Pradesh & Anr.^[4] However, the Family Court treated the said application under Section 125 Cr.P.C. as an application under Section 3 of the MW Act. Eventually, it ordered the husband to pay Rs 3 Lakh in lump sum to the wife and Rs 2000 every month towards the maintenance of the child.

Aggrieved by the order of the Family Court, cross revision petitions were preferred by the Appellant and Respondent before the High Court of Rajasthan, seeking enhancement of maintenance and seeking setting aside of the order of the Family Court on the issue of lack of jurisdiction of family courts under MW Act, respectively. The order passed by the Family Court was mainly assailed on the ground that under the MW Act, it was the court of competent Magistrate which had the jurisdiction to try or decide an application under Section 3, MW Act and the Family Court had no jurisdiction whatsoever. The High Court held that the Family Court had no jurisdiction to pass an order under MW Act and, therefore, set aside the order of the Family Court. However, liberty was given to the Appellant to file an application under Section 3 of MW Act, 1986 before the Court of competent Magistrate.

Therefore, an appeal against the order passed by the High Court of Rajasthan was preferred by the appellant/wife before the Supreme Court of India.

Relevant Statutory Provisions:

The following statutes/provisions are involved in this case:

1. The Muslim Women (Protection of Rights on Divorce) Act, 1986
• Section 2(c), MW Act provides that the term "Magistrate" used in MW Act means a magistrate of first-class exercising jurisdiction under Cr. P.C. in the area where the divorced woman resides.^[5]
• Section 3(1), MW Act provides that "Notwithstanding anything contained in any other law for the time being in force", a 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; and where she herself maintains the children born to her before or after her divorce, the same for her children.^[6]
• Section 3(2), MW Act provides that a Muslim divorcee woman 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.^[7]
• Section 3(3), MW Act provides for the 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.^[8]
• Section 7, MW Act confers the power upon Magistrate to dispose off any application pending before it under Section 125 Cr.P.C. notwithstanding anything contained in Cr.P.C. and subject to the provisions of Section 5, MW Act.^[9]

Thus, apparently, MW Act confers jurisdiction on the Magistrate of First Class to entertain an application for maintenance under the Act by a Muslim woman where she resides.

2. The Family Courts Act, 1984

• Section 7(1)(a) confers upon the Family Court jurisdiction exercisable by the District Court or subordinate Civil Court in respect of suits and proceedings of the nature mentioned in clauses (a) to (g) of the Explanation, of which Clause (f) contains "a suit or proceeding for maintenance". But this provision is "Subject to the other provisions of this Act".^[10]
• Section 7(2)(a) confers upon the Family Court with the jurisdiction exercisable by a Magistrate of the First Class under Section 125, Code of Criminal Procedure^[11] and under Section 7(2)(b) with such other jurisdiction as may be conferred on it by any other enactment.^[12]
• Section 8 provides that where a Family Court is established, no Court or Magistrate shall have or exercise jurisdiction in relation to matters (including Section 125 Cr.P.C.) mentioned in Section 7 and all pending matters shall stand transferred to the Family Court.^[13]
• Section 20 of the Act gives an overriding effect to the Act. Due to this section, the provisions of Family Courts Act shall 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 this Act.^[14]

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.

Diverging Opinions

Justice R Banumathi

Banumathi J. has held that the family court has no jurisdiction to entertain an application filed under Section 3 of the MW Act, 1986 for the following reasons:

• Section 3 of MW Act, 1986 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.^[15]
• Section 3 of MW Act, 1986 contains a non-obstante clause; it opens with the words "notwithstanding anything contained in any other law for the time being in force". It was observed that "non-obstante clause has to be understood fairly and reasonably. It 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." This meant that the MW Act may have conferred more rights but it confers these rights notwithstanding anything contained in Section 125 Cr.P.C.^[16]
• It was observed that "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."
• While dealing with Section 7 FCA, it was observed that the section applies only under two conditions, that is, where the suit or proceeding is of the nature envisaged by clauses (a) to (g) of the Explanation; and where the jurisdiction of such matters are exercisable by any District Court or Subordinate Court. But an application under MW Act can be moved only before the First-Class Magistrate having jurisdiction in the area under Criminal Procedure Code. Thus, an application under Section 3 cannot be maintained before the Family Court under Section 7(1) of the FCA.
• With regard to Section 7(2), FCA, it was observed that "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 FCA 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."
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• The expression "conferred on it" under Section 7(2)(b), FCA, refers to conferment of jurisdiction on the Family Court through a statutory provision. Therefore, jurisdiction can not be assumed or deemed to have been conferred, rather, it is peculiarly conferred by an enabling provision. It is evident from the provisions of the MW Act, that no such jurisdiction is conferred to the Family Court.
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• Reference was made to decisions of Allahabad High Court in Anjum Hasan Siddiqui v. Smt. Salma B.^[17], the Bombay High Court in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and others^[18] wherein a similar view was expressed.
• The MW Act was enacted in 1986 subsequent to the FCA, 1984. In the light of the provisions, under Section 3(2) of the MW 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.
• To conclude, it was observed, "Therefore, 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."

Justice Indira Banerjee

On the contrary, Banerjee J. held that the family court derives its jurisdiction from the provisions under the FCA to entertain a petition under MW Act for the following reasons:

• Focusing on the object of the FCA it was observed that the Act is a secular statute, which applies to matters contemplated therein, irrespective of the religion of the litigating parties, and the purpose of FCA
• While dealing with Section 7, FCA, it was observed that the provision accredits the Family Court with the jurisdiction and powers of a District Court or any Subordinate Civil Court, under any law for the time being in force, to adjudicate any suit or proceeding for maintenance, which would include an application under Section 3 of MW Act, 1986. Under Section 7, FCA a family court also exercises the jurisdiction and powers of a Magistrate of the First Class under Chapter IX of the Cr.P.C.
• Section 8, FCA bars the jurisdiction of District Court or any Subordinate Civil Court in respect of any suit or proceeding of the nature referred to in the Explanation to Section7 and also 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.
• Pursuant to Section 7 of the FCA, 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.
• Pursuant to Section 20 of the FCA, 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. It was observed that 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. Thus, it would include subsequently enacted laws, (MW Act, 1986) in force.
• It was observed that, "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."
• In relation to right to equality under Article 14, it was observed that "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."
• On Section 3, MW Act, 1986 it was observed that "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 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."
• It was observed that "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."
• The concluding remarks included, "The proceedings under Section 125 Cr.P.C. are civil in nature as held in Iqbal Bano^[19], 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 MW Act, 1986 for Muslim Women is also civil in nature. Thus, the Family Court would have jurisdiction under Section 7 of the Family Courts Act to entertain an application under Section 3/4 of MW act, 1986 since the Court of Magistrate dealing with such an application is to be deemed to be a Civil Court subordinate to the District Court."

Way Forward

The aforesaid question is subject to controversial views from various high courts and now, even from the apex court. The literal view taken by Banumathi J. is in consonance with the decisions of various High Courts, for example, the Bombay High Court in Noor Jamaal vs Haseena^[20], the Kerala High Court in Avaran Koya vs Mariyam^[21], the Guwahati High Court in MD Siddique Ali vs Fatema Rashid^[22] and Orissa High Court in Ahmed Alli Khan vs Sanjeeda Begam^[23], which affirm the lack of jurisdiction of the family court to entertain an application under Section 3 of the MW Act, 1986.

As the matter shall now be referred to a larger bench in view of the split decision rendered on the issue involved in the case, and given the complexity of the issue and divergence of opinions of different High Courts, with due respect, if we were to assume that the interpretation adopted by Justice R. Banumathi would find force with the larger bench, in that case grave lacunae in Family Courts Act and/or MW Act would be permitted to be exposed prejudicing the rights of equality of divorced muslim women in India. Probably, in such an event, only legislative amendments to Family Courts Act or MWA will be able to ensure that muslim women are not denied their equal rights under the law. However, given the socio-political, cultural, and religious scenario of our country, it is almost always extremely difficult to bring about progressive legislative amendments, especially the ones favouring Muslim women. In any case, if Banumathi J.'s decision find flavour with the larger bench and the legislature does consider an amendment to MWA or FCA, it could examine provisions of a similar welfare and secular legislation, i.e. the Protection of Women from Domestic Violence Act, 2005 ("PWDVA"). Section 20, PWDVA gives the power to the Magistrate, in addition to the maintenance so granted under other legislations, to order such monetary reliefs which may be adequate, fair and reasonable and consistent with the standard of living of the aggrieved woman. Section 26, PWDVA categorically provides that such relief (i.e. relief under PWDVA) may be sought before a civil court, family court or a criminal court, irrespective of the fact that whether such proceeding was initiated before or after the commencement of the PWDVA, 2005.

Having said that, the need of the hour may be an expansive and purposive interpretation by the Apex Court as the fate of divorced muslim women cannot be left at the mercy of legislature, which may or may not choose to legislate any further to remove this lacuna. It has come to our notice that a Private Member Bill (Bill No. 92 of 2005) was, infact, introduced by Sh. C.K. Chandrappan, M.P., titled as the Family Courts (Amendment) Bill, 2005^[24], seeking to amend Section 7 of the Family Courts Act, 1984 in order to confer jurisdiction on family courts over cases of maintenance under MW Act. The statement of object and reasons of the Bill state as follows:

"The Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted to protect the rights of Muslim women who have been divorced by or have obtained divorce from, their husbands. Though the said act was enacted after the Family Courts Act, 1984, the right to maintenance of Divorced Muslim women was not brought under the jurisdiction of the Family Courts. It might have been an inadvertent oversight. Due to this, the benefit of the speedy settlement of disputes as well as conciliation for settling matrimonial disputes, provided in the Family Court Act is denied to Muslim women who have been divorced by or have obtained divorce from their husbands."

In light of the above, it is now upon the judiciary to use its magnificent tools of interpretation and/or construction to do complete justice. It is not new for the judiciary of this country to uphold equality for women. Shabana Bano v. Imran Khan 2010 (1) SCC 666, Danial Latifi vs Union of India 2001 (7) SCC 740, Iqbal Bano v. State of UP 2007 (6) SCC 785, Shabana Bano v. Imran Khan 2010 (1) SCC 666 and Shamim Bano v. Asraf Khan 2014 (12) SCC 636 are some of the classic examples. The issue at hand does not even involve any disputes pertaining to substantive equality but merely procedural equality, i.e. the right of divorced muslim women to access the litigant friendly procedures of Family Courts. It can be argued that any construction or interpretation that refrains divorced muslim women from equal access to Family Courts (as their Hindu or other religion counterparts), would be discriminatory and violative of Article 14, 15 and Article 21 (which safeguards "Access to Justice") as well as various international conventions. The constitutional provisions may protect the personal laws of the communities, but that does not mean that persons belonging to such communities are also immune to uniform procedural law.

At the same time, it can be argued that the view to restrict jurisdiction of family court strikes at the very core to the rights of women, the equality principle and the very object of the Family Courts Act, under which it is established. The Family Courts were specially set up with the "subject-matter" jurisdiction of family disputes, i.e. for the settlement of family disputes, where emphasis is laid on conciliation and achieving socially desirable results, adherence to rigid rules of procedure and evidence is eliminated. The FCA being a secular legislation, prescribing for litigant friendly procedures, would never have been made with an intention to exclude Muslim women from taking benefits under the Act due to some procedural dilemma, especially when the submission of muslim population to the jurisdiction of family court causes no prejudice to anyone as no substantive alterations are made to the personal laws of any party. It is pertinent to mention that the Rajya Sabha debates on the Muslim Women (Protection of Rights) Bill do not take into consideration the FCA, and it could also be argued that the members had not done so due to inadvertence or since family courts were not established in most jurisdictions it may have considered fit to confer jurisdiction upon magistrates at that time. In either scenario, the intention of legislature to confer jurisdiction on the court of Magistrate of First Class over and above Family Courts is not evident at all. Thus, any construction or interpretation that confers jurisdiction to the Family Courts under MW Act would not be contrary to the intention of legislature. Indra Banerjee J. does refer to the doctrine of casus omissus in the judgment but goes on to say that "this Court has not added, omitted or substituted anything" and has only given purposive interpretation to the expression 'subordinate civil court' appearing in Section 7 of FCA to include the court of magistrate empowered to decide maintenance applications under MW Act. Having said that, it may be a fit case to invoke the doctrine of casus omissus, even though this rule of construction/interpretation is very rarely adopted, or the Mischief Rule, to fill in the lacuna by substituting or adding such words as may be required or cure the defect or mischief that arises due to the literal interpretation by giving an interpretation which advances the remedy.

Thus, considering the foregoing, it is in the interests of equity and justice that a particular community is not left out from availing benefits of such welfare and secular legislations due to some procedural perplexity, and precluding muslim women from the benefits under Family Courts Act, 1984 will be a big blow to their equality.

Views are personal only.