Who has the Jurisdiction?

The question which arose and raised an alarm was whether the family court has jurisdiction under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Since it is the family court that has jurisdiction under the Family courts act for all the matters dealing with disputes within family, while Muslim Women Protection Act (in short) provides for the maintenance of Muslim Divorced woman exclusively.

This question came up before the Supreme Court Division Bench of Hon'ble Justice R Banumathi and Jst. Indira Banerjee in the case of Rana Nahid @Reshma @Sana and Anr vs. Sahid Ul Haq Chisti1 an appeal arose due to decision of the High Court of Rajasthan which had set aside the order passed by the Family Court which converted the section 125 application for maintenance into section 3 of Muslim Women Protection act . The question was whether the family court can convert the petition under section 125 CrPC to an application under section 3 or 4 of Muslim Women Protection Act.

In the tussle between both the acts, let us see what they have to say:

Muslim Women (Protection of Rights on Divorce) Act, 1986
Under the Muslim personal law, a divorced woman could only be awarded maintenance during the iddat period and not later. Later on, in Shah Bano2 the SC held that muslim women has the right to claim maintenance even after the period of iddat is over under section 125 of the CrPC, because explanation (b) of section 125(1) includes a divorced woman until she remarries.

Soon after the passing of this judgment the act of 19863 was passed and was enacted from 19.05.1986, The Preamble of the act is read as follows:
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.

This act resolved the following purposes, i.e. firstly, a divorced woman was entitled to maintenance not only during the iddat period but also after that, secondly, for enforcing her claim to unpaid dower and other exclusive properties, thirdly, the former husband was made liable to provide the divorced woman with reasonable provisions and maintenance and if the husband fails to comply with the same, the Magistrate may issue a warrant and may sentence him to imprisonment, fourthly, as per section 4 the near relatives were also made liable in case the woman is unable to maintain herself after the lapse of iddat period, and Lastly, the state waqf board is made liable to pay in the absence of any such relative.

The provision of this act are not inconsistence with the provisions provided under the CrPC, in-fact it provides for additional remedies beneficial to the divorced women, the Criminal code just provided provisions for the maintenance of the divorced wife but the Muslim Women Protection Act provides additionally, a reasonable and fair provision, recovery of dower and return of marital gifts.

The section which has caused the controversy at hand is section 3 which provides for a divorced woman is entitled to Mahr and reasonable and fair provisions from her former husband, Section 3(1)(a) and clauses (c), (d) reads as:
3. Mahr or other properties of Muslim woman to be given to her at the time of divorce:

1. -
   
   1.  a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
   3. 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
   4. all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
      The act confers exclusive jurisdiction on the First Class Magistrate to entertain an application by the muslim women where she resides on any default by the former husband, under section 3
3. Again in the case of Danial Latifi and another vs. UOI 4 the validity of the provisions of the act were questioned, the SC had upheld the constitutional validity of the act, the constitution bench however did not answer the question whether the family court shall have the jurisdiction to entertain an application under Muslim Women Protection Act.
   
   Furthermore, this act confers more rights, but it confers them notwithstanding anything contained in section 125 of CrPC, section 3(1)(a) is a non-obstante clause however, it cannot be used to take away the rights already existing unless there is a clear and manifest intention of the legislative. Similarly, section 5 of Muslim Women Protection Act provides an option to the divorced husband and wife to be governed under the Criminal Code which can be jointly exercised, the magistrate can then dispose of the application.

Section 5 reads as follows:

5. Option to be governed by the provisions of section 125 to 128 of Act 2 of 1974:
If, on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974); and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.

Hence, it becomes very clear that only a magistrate can dispose of an application under the Muslim Women Protection Act according to the provisions. The act is in itself complete and does not need the support of any other enactment, it recognizes the rights of a divorced woman and also provides for a platform for redress, and the manner of execution of the order.

The answer to the question posed above seems to have been answered, that since the family courts have no jurisdiction to entertain an application under section 3(2) of the Muslim Women Protect Act, they cannot convert the petition for maintenance under section 125 CrPC to an application under the section 3.

Family Courts Act, 1984

A secular act was enacted for the speedy settlement of disputes within a family, with a view to promote conciliation of matters relating to marriage and other family affairs and matters connected therewith. While dealing with any sorts of dispute concerning family, it is required that a different approach is adopted by the courts which are different from those taken ordinarily for all other proceedings, i.e. full-fledged attempts of settlement and conciliation should be made before the commencement of trials.

Family courts have the power to make their own rules and procedures for adjudication and settlement (section 9 and 10). Section 7 of this act provides for the Jurisdiction of the family courts, on the plain reading of section 7(1)(a):
it confers the entire jurisdiction by any district court or any subordinate civil court with respect to the suits and proceedings of the nature referred to in the explanation5 on the Family courts.

Looking at this it becomes clear that an application under section 3 of the Muslim Women Protection Act is not covered under this clause of section 7(1), since the Muslim Women Protection Act, clearly provides for exclusive jurisdiction as per Criminal Procedure Code of a First Class Magistrate. Also, section 7(2)(a) confers limited jurisdiction of a First class Magistrate upon the Family Court only to matters covered under chapter IX of CrPC. However, section 7(2)(b) is an enabling provision, which provides for any additional jurisdiction on the family courts by other enactments. However, jurisdiction under clause b of section 7(2) must not be assumed or deemed but specifically conferred on it.

Hence, an application under section 3 of Muslim Women Protection Act is maintainable only before a JMFC having jurisdiction in that area. The very fact that the Muslim Women Protection Act, does not refer to the jurisdiction of family court nor does it provide that an application under section 3 can be filed before the family court makes it clear that if the legislature would have intended to protect the jurisdiction of the family courts in the particular act it would have made an express provision in that regards.

But while taking a look at section 8 of the Family Courts Act which takes away the jurisdiction from the District Court and any other sub-ordinate civil court as mentioned in section 7(1) and gives it to the family court established in that area. And section 8 (b) prohibits any magistrate from exercising jurisdiction or powers under sections 125-128 of CrPC with respect to the areas for which a family court has been established.

Section 10 of the family courts act says that However, an important aspect of the Family Courts Act is section 20 and the twist in tale is that it provides an overriding effect over any other law including Muslim Women Protection Act.

Section 20 reads as:

The provisions of this 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. Again the intent of the legislation is very clear that by the expression any other law and for the time being in force and will include subsequently enacted laws and are not to be construed narrowly.

Conclusion
A family court is designed exclusively to entertain personal and family matters and is a secular law, also it deals with the claims of maintenance under section 125 CrPC, as far as feasible there happens to be no reason to single out muslim women and denying their access to family courts, since equality before law and equal protection of law is the basic structure of the constitution and it applies to both the procedural and substantive laws.

There is no intelligible differentia based on such singling out or preferential treatment to Divorced Muslim Women, and this was never the intent behind both these legislations. There is an overlapping between the provisions of the two acts, the Family courts act was enacted before the Muslim woman law act 1986, and there has been no amendment made since then in the family court law.

One view which was taken in the case of @Reshma @Sana and Anr vs. Sahid Ul Haq Chisti by Jst. Indira Banerjee '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. 6

Further the court which is deciding an application under section 3 and 4 of the Muslim act is to be deemed to be a civil court, which will as per the family courts act be under the jurisdiction of the family courts as per section 7. A purposive interpretation needs to be taken, while considering both these acts.

The split verdict of the above mentioned case due to the difference of opinion was referred to the Chief Justice to constitute a larger bench for the decision of the same. This controversy of overlapping of the provisions of two laws will be put to an end by the judicial wisdom of the Apex court.

References:

1. 2020 SCC OnLine SC 522
2. Mohd. Ahmed Khan v. Shah Bano Begum and others (1985) 2 SCC 556
3. Muslim Women (Protection of Rights on Divorce) Act, 1986
4. (2001) 7 SCC 740
5. Explanation — The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely:
   
   1. 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;
   2. a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
   3. a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
   4. a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
   5. a suit or proceeding for a declaration as to the legitimacy of any person;
   6. a suit or proceeding for maintenance;
6. 2020 SCC OnLine SC 522