Case BriefsSupreme Court

Supreme Court: The bench of R Banumathi and Indira Banerjee, JJ has given a split verdict on the issue whether a Family Court can convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The matter has, hence, been referred to a larger bench.

Background of the case

  • A Muslim woman filed a petition under Section 125 Cr.P.C. alleging that she was subjected to cruelty and harassment for additional dowry and that she was thrown out of matrimonial home.
  • Family Court held that as the appellant is a Muslim divorced woman, her petition for maintenance under Section 125 Cr.P.C. is not maintainable.
  • Treating the application under Section 125 Cr.P.C. as application under Section 3 of the Muslim Women’s Protection Act in the light of the judgment in Iqbal Bano v. State of Uttar Pradesh, (2007) 6 SCC 785, the Family Court directed the husband to pay rupees three lakh in lump sum to appellant towards her maintenance and future livelihood.
  • Rajasthan 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 3 Court to that extent.

Banumathi, J’s opinion

Holding 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, Banumathi , J said

“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.

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

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.

On Section 7 of the Family Courts Act, 1984

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.

Conclusion

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. Also, the Muslim Women’s Protection Act was enacted in 1986 subsequent to the Family Courts Act, 1984. Hence, 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.

Banerjee, J’s opinion

Disagreeing with Justice Banumathi’s opinion, Banerjee, J said

“Family Courts Act is a secular statute, which applies to matters contemplated therein, irrespective of the religion of the litigating parties.”

On Family Court’s scope of power to lay down procedure

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.

On Territorial Jurisdiction of Family Courts

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. 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.

On Overriding effect of Family Courts Act

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.

“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”

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.

Conclusion

Banerjee, J, hence, concluded that 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.”

[Rana Nahid v. Sahisul Haq Chisti, 2020 SCC OnLine SC 522 , decided on 18.06.2020]

Legislation UpdatesStatutes/Bills/Ordinances

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 has been passed by the Parliament and notified on 19-09-2018, as signed by the President for promulgation. The ordinance is directed towards protection of married Muslim women and prohibition of pronouncement of talaq by their husbands and any other matter incidental thereto. This ordinance has been promulgated with a view that despite the holding in the matter of Shayara Bano v. UOI, (2017) 9 SCC 1 where triple talaq was declared unconstitutional the practice still continued.

 

Highlights of the Ordinance:

  • Definition of talaqSection 2(b) of the ordinance definestalaqas talaq-e-biddat or talaq of similar form, pronounced by a Muslim husband having effect of instantaneous and irrevocable divorce.
  • Talaq to be void and illegal — This ordinance declares pronouncement of talaq by Muslim husband to be void and illegal and penalizes the commission of same with imprisonment which may extend to 3 years and fine under Section 3 and Section 4 respectively.
  • Allowance — According to the ordinance under Section 5 a Muslim husband who pronounces triple talaq to his wife will be liable to pay to her and dependent children subsistence allowance as may be determined by Magistrate.
  • Custody of Minor Children — In case a Muslim husband pronounces triple talaq to his Muslim wife the custody of their minor children will be with the married Muslim women i.e. his wife provided under Section 6.
  • Cognizable Offence — The offence under this ordinance has been declared as cognizable under Section 7(a).
  • Who can report? — Any commission of offence under this act can be informed to the officer in charge of a police station directly by the married Muslim woman on whom the talaq was pronounced and by any other person related to her by blood or marriage.
  • Compoundable Offence — According to Section 7(b) offence of pronouncing talaq is stated to be compoundable at the instance of married Muslim woman on whom talaq was pronounced but only with the permission of Magistrate.
  • Grant of Bail— Under Section 7(c) bail can be granted only when the Magistrate is satisfied after perusing the application of the accused and hearing married Muslim women upon whom the talaq was pronounced that reasonable ground for granting bail exists.
Hot Off The PressNews

On 07.10.2016, the Law Commission of India notified a questionnaire inviting public to give their views for the revision and reform of the family laws in the light of the Article 44 of the Constitution which provides for the provision for having a Uniform Civil Code throughout the nation.

The commission seeks the public opinion with the intent to begin a healthy conversation about the viability of a uniform civil code and will focus on family laws of all religions and the diversity of customary practices, to address social injustice rather than plurality of laws. The Commission emphasized that the family law reform has to view women’s rights as an end in itself rather than a matter of constitutional provision, religious right and political debate.

The Commission will then, responding to the demands for social change, consider the opinions of all stake-holders and the general public to ensure that the norms of no one class, group or community dominate the tone and tenor of family law reforms.

Those who are willing to contribute their ideas and opinions should mail the filled questionnaire within 45 days to lci-dla@nic.in or send it by post to:

Law Commission of India,

14th Floor, H.T. House,

Kasturba Gandhi Marg,

New Delhi -110001

Please read the questionnaire here