The Supreme Court in the Shah Bano case, inter alia held that the statutory right granted under the general law of the land i.e. Section 125 of the CrPC is applicable to all persons, irrespective of personal laws. The judgment resulted in outcry by certain fundamentalist sections of the Muslim community, which forced the then Rajiv Gandhi led government to enact the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter the MW Act).
The Statement of Objects and Reasons of the MW Act expressly states that in the view of the ratio of the Shah Bano judgment, the Parliament in passing this Act aims to "specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interest."
Under the MW Act, divorced Muslim women can file an application for maintenance under Section 3 (2) if she is not able to maintain herself after the iddat period and remains unmarried. This application can be filed in a Judicial Magistrate Court but not under Section 125 of the CrPC. Therefore, the MW Act provides for a special remedy by its specific provisions and excludes remedy under Section 125 of the CrPC.
However, relaxation is provided in Section 5 of the MW Act which provides an option to be governed by Section 125 of CrPC, on the condition that the divorced Muslim woman and her former husband, jointly file a declaration on the date of first hearing of an application under Section 3.
This means that the option to opt for the general law under Section 125 of the CrPC is available to a divorced Muslim woman only if her former husband, who is the respondent in the proceedings, consents to the same. It is to be noted that no option is extended wherein parties can make a joint declaration to have proceedings under a family court.
Although the MW Act was intended to obliterate the ratio laid down in Shah Bano judgment, in Danial Latifi vs Union of India, the Supreme Court held that the legislation passed for the purpose of overcoming the ratio in Shah Bano case, in actuality, turned out codifying it's rational. It is crucial to note that the codification comment by the SC was made only in regard to Section 127 (3)(b) of the CrPC and not Section 125 of the CrPC.
On the question of whether Section 125 was applicable to divorced Muslim women, the court held that the MW Act satisfied the object of Section 125, which is to avoid destitution and vagrancy. The court further went on to observe that since the Judicial Magistrate is empowered under the MW Act to make appropriate provisions for maintenance, "what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional."
This refers to the court's opinion that since no extra benefit or advantage was granted for a proceeding under Section 125 from that of a proceeding under the MW Act, a claim for discrimination cannot be justified.
Unfortunately, the court, while adjudicating the constitutionality of the MW Act through the lens of Section 3, very clearly failed to take notice of the provisions of the FCA.
The critical importance of FCA
FCA was promulgated in 1984 "with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith."
The most important section as regard to the jurisdiction of the family court is Section 7. In view of Section 7 and 'Explanation' contained in it, the family court has exclusive jurisdiction to try marital disputes of all persons. Section 7 (2) provides exclusive jurisdiction to family court as regards maintenance claims in Chapter IX of CrPC (Section 125 to 127).
The salient features of the FCA is the involvement of social welfare institutions promoting family welfare, providing for counsellors and medical experts. Absence of engagement of lawyers as of right and the procedural matters including acceptance of any documents which are normally not admissible or relevant under the Indian Evidence Act, 1872 is also provided in the FCA.
Thus, it is clear that a family court is better equipped, to deal with marital disputes. Moreover, in contrast with a Judicial Magistrate whose qualification is only a law degree without any experience, a judge of a family court should have at least seven years of experience, either as a lawyer or a judicial officer.
Going by the provisions of the FCA, which is the general law of the land, all marital disputes including the maintenance claim of a divorced woman under Section 125 CrPC is to be exclusively tried by the expert judicial forum, with expert facilities as mentioned above. However, only the claim of maintenance of a divorced Muslim woman under MW Act is excluded from the jurisdiction of the expert body and is to be dealt with by a Judicial Magistrate Court. This is clearly discriminatory.
Since there is no difference between a divorced Muslim woman and a divorced woman of any other religion apart from the aspect of religion, it may be prudent to say that in this case the classification was not based on an intelligible differentia. The fact that religion is taken as the only ground for classification whereby divorced Muslim woman are excluded from the benefits of the FCA for getting maintenance, and not for the divorced women similarly situated, who belong to any other religion, is violative of Article 14 and 15 of the Constitution of India.
Furthermore, the purpose the MW Act is to protect the rights of the divorced Muslim women. The object of the MW Act is not achieved by denying divorced Muslim women access to better facilities of an expert marital adjudicating forum like the family court, which they would have gotten had they been allowed to file under Section 125, as stated above. Therefore, there is no rational nexus between the classification and the object sought to be achieved by confining an application under MW Act to Judicial Magistrate.
The FCA very clearly provides the parties better facilities to solve their dispute than that provided in a proceeding before a Judicial Magistrate Court.
The recent decision of Rana Nahid vs Sahidul Haq Chisti delved on the issue of whether a family court could take up an application of maintenance filed under the MW Act. Although the case was referred to a larger bench because of conflicting opinions, it will prudent at this stage to highlight the rationale for the same.
Justice Banumathi observed that the MW Act prescribes exclusive jurisdiction to a Judicial Magistrate of First Class in the area under the CrPC as the forum to approach for redressal to entertain an application filed under the Act. This was followed by an observation that the Danial Latifi case failed to clarify whether family courts would have jurisdiction to entertain applications filed by divorced Muslim women under the MW Act. In her judgment, she stated that only a Judicial Magistrate of first- class exercising jurisdiction under the CrPC can dispose of an application filed under the MW Act.
The judgment also distinguished the case of Iqbal Bano vs State of UP from the case under consideration by stating that the court in Iqbal case upheld the decision of Judicial Magistrate to convert a petition of maintenance under Section 125 of the CrPC to one under Section 3 of the MW Act because the application was made before a Judicial Magistrate who was competent to conduct the proceedings through both the Acts i.e. the same court. The court asserted that this is was not the case in Rana Nahid.
It is to be noted that, proceedings through an application under Section 125 will lie solely in the family court, whereas one filed under Section 3 of the MW Act will be before a Judicial Magistrate. In view of this fact, the Judicial Magistrate will not have any jurisdiction to treat a petition filed under MW Act as one filed under Section 125, since such a petition is in the exclusive jurisdiction of family court.
Justice Banumathi also based her decision on the fact that Section 7 (1) of the FCA can only apply when a suit as falls under the ambit of clauses (a) to (g) of the explanation to the section or when the matter is one which falls under the jurisdiction of a District court or a Subordinate Court. However, Section 3 prescribes for a proceeding which falls under the jurisdiction of a Judicial Magistrate of first class and hence Section 7(1) does not apply.
At the same time the jurisdiction under Section 7 (2)(a) is limited to covering only chapter IX of the CrPC (which includes Section 125).
Since the MW does not expressly or even impliedly provide that an application under the Act will be governed by the FCA, it was held that an inference to conferred jurisdiction by any other enactments, as envisioned under Section 7(2)(b) will not be justified.
Moreover, the section of FCA contains a non obstante clause against any law that was in existence prior to its enactment. Since the MW Act was enacted after the FCA, Section 3 of the former will prevail over Section 7 of the latter. Therefore, an application filed under Section 3 of the MW Act cannot be maintained before the family court under the provisions of the FCA.
Justice Indira Banerjee on the other hand, held such an application is maintainable. She relied on the non obstante clause in Section 20 of the FCA and came to the conclusion that the expression "any other law for the time being in force" is not restricted only to laws which existed prior to the FCA, but also to laws that are passed subsequently. She was of the opinion that that the non obstante clause was only applicable to Section 3(1) of the MW Act and not Subsection (2) or (3). Moreover, Justice Banerjees judgement said, a court deciding an application under section 3 or 4 of the MW Act was interpreted as one of civil nature. This would mean that such a case is subordinate to a district court and resultantly comes under the ambit of Section 7 of the FCA.
Since the case is now referred to a larger bench, the position of law remains to be the one laid down by the High Court i.e. the family courts do not have the jurisdiction to hear cases that are filed under the MW Act.
In a question before the Apex court in Maganlal Chhaganlal (P) Ltd vs Muncipal Corporation of Greater Bombay on whether two procedures for eviction- one under ordinary civil law and the other under a special law- was constitutional, Bhagwathi, J., observed that where two different procedures for the determination or enforcement of a liability operating in the same field, one being substantially more drastic or prejudicial than the other, exists in absence of any guidelines from the legislation as when they are to be applied, the harsher one of the two procedures will be seen as discriminatory. On the other hand, statutes which made guidelines for classification of cases themselves would be invalid only if it fails to adhere to Article 14.
In the present case, the opportunity to avail of the benefits of a family court is denied to the applicants of the MW Act. There is no guideline or other legally sustainable reasons which can be inferred from the MW Act for denying the Muslim divorced woman the benefit of the expert judicial forum like the family court.
Both substantive and procedural law come under the ambit of Article 14. It has also been laid down in numerous cases that class legislation is allowed only to the extent that it is reasonable. The classical twin test mandates that the intelligible differentia be made on the basis of some real and substantial distinction and the same should have a substantial relation to the object sought to be achieved, for a law to be in consonance with Article 14. Failure to adhere to the same may be termed as arbitrary.
Subba Rao, J., in Khandige Sham Bhat v. Agricultural Income Tax Officer, Kasaragod observed that if a law which in effect provides unequal treatment to a group of people similarly situated or if there exists "equality and uniformity within each group" afforded unequal operation of law, such a law will be discriminatory and in violation of Article 14. Moreover, cantina of cases have laid down that a discrimination only on the ground of religion will attract the scope of Article 15 (1).
Additionally, in the case of Nand Kumar Rai vs State of Bihar the question for consideration was whether Section 109-A of the Bihar Tenancy Act, 1961, which provided for barring civil courts from hearing suits of title and empowering Revenue Courts to decide such matters, despite the existence of a different procedure through provisions such as Section 106 under Part III of the Act, was constitutional. This was examined in the light of discrimination in matters of procedure and principle of equal protection of laws. The former, inter alia provided for only one appeal to the Collector or Commissioner. However, the latter, provided for up to two appeals by the parties, including one to the High Court. The court held that it was a procedural discrimination and was hence violative of Article 14.
Drawing parallels to the issue at hand, in suits of maintenance by divorced women, different procedures are prescribed under Section 3 of the MW Act and provisions under the FCA via Section 125. A procedure which is aimed to be more beneficial to parties is available to everyone except a certain class of people. This is also a clear case of procedural discrimination. Applying the ratio of the above case laws in the issue at hand, a discrimination arises by denying the beneficial provisions to Muslim divorced women of the same class. Therefore, it is violative of Article 14.
The drastic disadvantage and prejudice that the MW Act imposes on divorced Muslim women by denying them access to an expert marital dispute judicial forum highlights a possible discrimination that could exist for them. The Danial Latifi case seems to have failed to take note of it.
The issue is of particular relevance at the present moment, in view of the conflicting stands of the presiding judges and resultant reference to a higher bench by the Supreme Court in the Rana Nahid case.
(The author is a student of National Law Universtiy, Jodhpur, and may be reached at [email protected])