(Criminal Appeal No. 192 of 2011) (arising out of Criminal Revision Petition No. 295 of 2009)
Section 125 Cr.P.C, Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986
Appellant no. 1, Reshma and respondent, Sahidul Haq Chisti got married according to Muslim Religion and appellant 2 (son) was born out of wedlock. On 23.04.2008 divorce was given and a case for maintenance was filed u/s 125 CR.P.C. The Family Court held that the Application is not maintainable u/s 125 Cr.P.C. as applicant is and her application should be treated under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Respondent was ordered to pay 3lakhs in lump sum amount to appellant no 1 and 2000 per month to appellant no 2 till he attains majority. Being aggrieved by the quantum of maintenance, the appellants and the respondent both filed Revision Petition in HC of Rajasthan against the order of the Family Court. The High Court held that the Family Court does not have jurisdiction to entertain an application under Section 3 of the Muslim Women’s Protection Act and also converting the application under Section 125 Cr.P.C. into an application under Section 3 of the Act is outside the Jurisdiction and hence the order was set aside. However, liberty was given to appellant No.1 to file an application before the Court of competent Magistrate and maintenance amount given to Appellant no 2 was retained.
Whether the family court has jurisdiction on application filed by Muslim divorced woman for maintenance u/s 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and whether the Family Court can convert the petition for maintenance u/s 125 Cr.P.C. to one u/s 3 and 4 of the Act of 1986.
According to Justice R. Banumathi,
Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh & Ors (2000(3) Mh.L.J. 555)
“Since the Muslim Women’s Protection Act, 1986 does not refer to the Family Court thus the Family Court cannot entertain the application of divorced Muslim woman u/s 3 and 4 of the Act of 1986.”
Iqbal Bano v. State of UP & Anr (2007) 6 SCC 785
The Magistrate, having jurisdiction, converted the petition for maintenance u/s 125 Cr.P.C. to the application u/s 3 of the Muslim Women’s Protection Act, 1986 and the same was upheld by the SC.
According to Justice Indira Banerjee
According to the Law Commission’s 59th Report of 1971, there was a need for a strategy different from the one used in other civil disputes, to handle family matters. In 1976 amendment was made in CPC to provide for a procedure which could be used while dealing with family disputes and speedy trial is done.
Family Courts Act was enacted to provide for establishment of Family Courts for speedy settlement of family disputes. The Family Court Act is a secular statute and it is not discriminatory on the basis of religion. Wherever a Family Court is constituted, it exercises the jurisdiction and powers of any District Court or Subordinate Civil Court and of a Magistrate of the First Class under Chapter IX of Cr.P.C. in respect of suits and other proceedings for maintenance referred in the Explanation (f) of Section 7(1).
The Hon’ble two judges bench of the SC has given a split verdict. Justice R. BANUMATHI is of the view that Family Court has no jurisdiction and dismissed the matter whereas Justice Indira Banerjee having diverse opinions that it has, allowed the appeal. The matter will be placed before Hon'ble the Chief Justice of India for referring to the Larger Bench.
Section 21 of the Urban Land (Ceiling and Regulation) Act