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Can Family Court Entertain Maintenance Petition Under Muslim Women (Protection of Rights on Divorce) Act? SC Delivers Split Verdict [Read Judgment]

Ashok Kini
18 Jun 2020 1:57 PM GMT
Can Family Court Entertain Maintenance Petition Under Muslim Women (Protection of Rights on Divorce) Act? SC Delivers Split Verdict [Read Judgment]
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The Supreme Court has given a split verdict on the issue whether a Family Court has the jurisdiction to entertain a petition for maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Justice R. Banumathi opined that the Family Court has no jurisdiction, while Justice Indira Banerjee expressed a view that it has. Therefore, a larger bench will be constituted to decide the issue.

Case Background

The appeal arises out of a Rajasthan High Court judgment that set aside an order passed by a Family Court which converted the application for maintenance under Section 125 Cr.P.C. into Section 3 of the Muslim Women (Protection of Rights on Divorce) Act.

Maintenance Petition can be moved only before the First Class Magistrate

Referring to the provisions of the Family Courts Act, and the Muslim Women's Protection Act, Justice Banumathi said that the latter 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 judge also noted that an application under Section 3(2) of Muslim Women's Protection Act can be moved only before the First Class Magistrate having jurisdiction in the area under Criminal Procedure Code. Justice Banumathi observed:

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. The High Court, in my view, rightly held that 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. I do not find any reason warranting interference with the impugned order.

Divorced Muslim Women seeking maintenance cannot be denied access to Family Court

On the other hand, Justice Banerjee opined that a rigid, constricted reading of the 1986 Act for Muslim Women, to denude the Family Courts constituted under the Family Courts Act of jurisdiction to decide an application thereunder, is impermissible in law. The judge made these observations:

"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."
"A literal and rigid interpretation of the expression "Subordinate Civil Court" to single out divorced Muslim Women seeking maintenance from their husbands, access to Family Courts when all other women whether divorced or not and even Muslim Women not divorced can approach Family Courts would be violative of Article 14 of the Constitution. "
"This Court has only given a purposive interpretation to the expression Subordinate Civil Court in Section 7 of the Family Courts Act to include the Court of a Magistrate empowered to entertain proceedings for maintenance under the 1986 Act for Muslim Women, which are in essence and substance, civil proceedings."

"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."

Case no.:  CRIMINAL APPEAL NO.192 OF 2011
Case name: RANA NAHID @ RESHMA @ SANA Vs. SAHIDUL HAQ CHISTI
Coram: Justices R. Banumathi and Indira Banerjee

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