The Supreme Court of India has recently announced its split verdict on the issue of jurisdiction of the family courts in matters of maintenance filed under Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "MW Act"). The split verdict may be considered a classic example of the opposing theories of interpretations, textualism and purposivism, beautifully coming into play in the respective decisions pronounced by the two leading women judges of the Supreme Court. In this case, the Supreme Court is confronted with the interesting yet complicated issue having wide social, cultural, religious or political ramifications, i.e. whether the family court has jurisdiction, or whether the family court is barred (impliedly) from exercising jurisdiction, to try or decide an application filed by a divorced Muslim woman for maintenance under Section 3 of the MW Act. On the one hand, some judicial restraint has been exercised by Justice Banumathi while adhering to the literal interpretation or natural construction rule to oust the jurisdiction of the Family Courts under MW Act. The reasoning given by Justice Banumathi also finds support from some decisions of different High Courts, like a single bench in Anjum Hasan Siddiqui v. Smt. Salma B and the full bench of the Bombay High Court in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and others. On the other hand, judicial activism is reflected in the decision rendered by Justice Indira Banerjee to extend the benefit of the jurisdiction and/or infrastructure of the Family Courts to the divorced muslim women, while relying upon the principles of equality embodied in Articles 14 and 15, Constitution of India, International Instruments such as CEDAW, and the aims/objectives/purpose of the Family Courts Act, 1984 (hereinafter referred to as "FCA").
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. 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:
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.
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.
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:
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:
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, the Kerala High Court in Avaran Koya vs Mariyam, the Guwahati High Court in MD Siddique Ali vs Fatema Rashid and Orissa High Court in Ahmed Alli Khan vs Sanjeeda Begam, 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, 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.
 Criminal Appeal No. 192 Of 2011, Decided On 18.06.2020.
 AIR 1992 All 322.
 2000 (3) Mh.L.J. 555.
 2007 (6) SCC 785.
 Section 2(c), MW Act, 1984, "Magistrate" means a Magistrate of the First class exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the divorced woman resides."
 Section 3(1), MW Act, 1984, "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." (relevant clauses) (emphasis supplied).
 Section 3(2), MW Act, 1984, "Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid…, 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,..." (emphasis supplied).
 Section 3(3), MW Act, "Where an application has been made under sub-section (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)…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 fit 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…: 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."
 Section 7, MW Act, "Transitional provisions.—Every application by a divorced woman under section 125 or under section 127 of the Code of Criminal Procedure, 1973 (2 of 1974) pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act."
 Section 7, FCA provides the "Jurisdiction" of the family court. Section 7(1), FCA, "(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 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; … (f) a suit or proceeding for maintenance;"
 Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973.
 Section 7(2), FCA, "(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."
 Section 8, FCA, "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 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."
 Section 20, FCA, "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."
 Rana Nahid v. Sahisul Haq Chisti, Criminal Appeal No. 192 Of 2011, Decided On 18.06.2020, Banumathi J. at para 12.
 In this regard, the following found mention:
 AIR 1992 All 322.
 2000 (3) Mh.L.J. 555.
 Iqbal Bano v. State of UP and Another 2007 (6) SCC 785.
 II (1992) DMC 56.
 1993 CriLJ 1118.
 2007 CriLJ 2363.
 1995 II OLR 564.