# RANA NAHID @ RESHMA @ SANA & ANR v. SAHIDUL HAQ CHISTI

- **Citation:** [2020] 7 S.C.R. 324
- **Court:** Supreme Court of India
- **Decided:** 2020-06-18
- **Case number:** Criminal Appeal No. 192 of 2011
- **Bench:** R. Banumathi, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rana-nahid-reshma-sana-anr-v-sahidul-haq-chisti-34656
- **Pages:** 68

## Headnote

Code of Criminal Procedure, 1973 - Chapter IX- ss.125-128
- Petition u/s.125, by divorced Muslim woman - Converted to
application u/s.3, 1986 Act by Family Court - Permissibility of -
Appellant no.1 and respondent were married as per Muslim rites -
Appellant no.2-son was born out of the wedlock - Alleging cruelty
against appellant no.1, appellants filed petition u/s.125, CrPC -
Family Court treated it as application u/s.3, 1986 Act and directed
respondent to pay maintenance - Order to the extent converting the
petition u/s.125, CrPC into application u/s.3 of the 1986 Act, set
aside by High Court - On appeal, held: Per R. Banumathi, J. Family
Court has no jurisdiction to entertain a petition u/ss.3 and 4, 1986
Act and cannot convert the petition for maintenance u/s.125, Cr.P.C.
to one u/s.3 or s.4, 1986 Act - Per Indira Banerjee, J. (Dissenting)
Family Court had jurisdiction to convert the application of appellant
u/s.125, CrPC into an application u/s.3, 1986 Act for Muslim Women
and to decide the same -Muslim Women (Protection of Rights on
Divorce) Act, 1986 - ss.2-5, 7 - Family Courts Act, 1984 - ss.3,
5-10, 12-14, 16, 18, 20 - Constitution of India - Arts.14,
15 - Interpretation of Statutes - Purposive Interpretation; Casus
Omissus - Code of Civil Procedure, 1908 - Evidence Act, 1872 -
International Convention / Treaties - International Covenant for
Civil and Political Rights (ICCPR); Convention on the Elimination
of All Forms of Discrimination against Women 1979.
Directing the matter to be placed before Hon'ble the Chief
Justice of India for referring the matter to the Larger Bench, the
Court
Referring the matter to larger Bench, the Court
HELD: PER R. BANUMATHI, J.
1.1 Muslim Women (Protection of Rights on Divorce) Act,
1986 does not deviate itself from the purpose, object and scope
of the provisions of maintenance under Criminal Procedure Code.
[2020] 7 S.C.R. 324
324
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The provisions of the Act are not inconsistent with the provisions
of Chapter IX of the Code. The provision of this enactment
provides remedies beneficial to the Muslim women divorcee by
making the former husband liable to provide the divorced woman
with reasonable and fair provision in addition to providing
maintenance and where the husband fails to comply with the order
without sufficient cause, the Magistrate may issue warrant for
levying the amount of maintenance and may sentence him to
imprisonment for a term which may extend to one year. The near
relatives of the woman are also made liable under Section 4 of
the Act. In case, the relatives are not in a position to pay her, the
State Wakf Board is also made liable to provide maintenance.
While the Criminal Procedure Code provides the relief of
maintenance only, the Act of 1986 furnishes to divorced woman,
additionally, 'a reasonable and fair provision', the relief of
recovery of dower and return of marital gifts. [Para 11]
[334-F-H][335-A-B]
1.2 Section 3 of 1986 Act opens with the words
"notwithstanding anything contained in any other law for the time
being in force," a divorced woman shall be entitled to rights
enumerated in clauses (a) to (d) of Section 3(1) of 1986 Act. Muslim
Women Protection Act may have conferred more rights but the
Act confers these rights notwithstanding anything contained in
Section 125 Cr.P.C. The non-obstante clause has to be understood
fairly and reasonably. The non-obstante clause cannot be lightly
assumed to bring in the effect of supersession. It should not be
allowed to demolish or extinguish the existing right unless the
legislative intention is clear, manifest and unambiguous. Section
5 of the Muslim Women's Protection Act gives divorced Muslim
couples "an option to be governed by the provisions of Sections
125 to 128 of the Code of Criminal Procedure, 1973" which they
could jointly exercise at the first hearing of the case under the
Act. Section 5 of the Act enables the parties at the stage of first
hearing, to withdraw from the applicability of

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RANA NAHID @ RESHMA @ SANA & ANR.
v.
SAHIDUL HAQ CHISTI
(Criminal Appeal No. 192 of 2011)
JUNE 18, 2020
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973 - Chapter IX- ss.125-128
- Petition u/s.125, by divorced Muslim woman - Converted to
application u/s.3, 1986 Act by Family Court - Permissibility of -
Appellant no.1 and respondent were married as per Muslim rites -
Appellant no.2-son was born out of the wedlock - Alleging cruelty
against appellant no.1, appellants filed petition u/s.125, CrPC -
Family Court treated it as application u/s.3, 1986 Act and directed
respondent to pay maintenance - Order to the extent converting the
petition u/s.125, CrPC into application u/s.3 of the 1986 Act, set
aside by High Court - On appeal, held: Per R. Banumathi, J. Family
Court has no jurisdiction to entertain a petition u/ss.3 and 4, 1986
Act and cannot convert the petition for maintenance u/s.125, Cr.P.C.
to one u/s.3 or s.4, 1986 Act - Per Indira Banerjee, J. (Dissenting)
Family Court had jurisdiction to convert the application of appellant
u/s.125, CrPC into an application u/s.3, 1986 Act for Muslim Women
and to decide the same -Muslim Women (Protection of Rights on
Divorce) Act, 1986 - ss.2-5, 7 - Family Courts Act, 1984 - ss.3,
5-10, 12-14, 16, 18, 20 - Constitution of India - Arts.14,
15 - Interpretation of Statutes - Purposive Interpretation; Casus
Omissus - Code of Civil Procedure, 1908 - Evidence Act, 1872 -
International Convention / Treaties - International Covenant for
Civil and Political Rights (ICCPR); Convention on the Elimination
of All Forms of Discrimination against Women 1979.
Directing the matter to be placed before Hon'ble the Chief
Justice of India for referring the matter to the Larger Bench, the
Court
Referring the matter to larger Bench, the Court
HELD: PER R. BANUMATHI, J.
1.1 Muslim Women (Protection of Rights on Divorce) Act,
1986 does not deviate itself from the purpose, object and scope
of the provisions of maintenance under Criminal Procedure Code.
[2020] 7 S.C.R. 324
324
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The provisions of the Act are not inconsistent with the provisions
of Chapter IX of the Code. The provision of this enactment
provides remedies beneficial to the Muslim women divorcee by
making the former husband liable to provide the divorced woman
with reasonable and fair provision in addition to providing
maintenance and where the husband fails to comply with the order
without sufficient cause, the Magistrate may issue warrant for
levying the amount of maintenance and may sentence him to
imprisonment for a term which may extend to one year. The near
relatives of the woman are also made liable under Section 4 of
the Act. In case, the relatives are not in a position to pay her, the
State Wakf Board is also made liable to provide maintenance.
While the Criminal Procedure Code provides the relief of
maintenance only, the Act of 1986 furnishes to divorced woman,
additionally, 'a reasonable and fair provision', the relief of
recovery of dower and return of marital gifts. [Para 11]
[334-F-H][335-A-B]
1.2 Section 3 of 1986 Act opens with the words
"notwithstanding anything contained in any other law for the time
being in force," a divorced woman shall be entitled to rights
enumerated in clauses (a) to (d) of Section 3(1) of 1986 Act. Muslim
Women Protection Act may have conferred more rights but the
Act confers these rights notwithstanding anything contained in
Section 125 Cr.P.C. The non-obstante clause has to be understood
fairly and reasonably. The non-obstante clause cannot be lightly
assumed to bring in the effect of supersession. It should not be
allowed to demolish or extinguish the existing right unless the
legislative intention is clear, manifest and unambiguous. Section
5 of the Muslim Women's Protection Act gives divorced Muslim
couples "an option to be governed by the provisions of Sections
125 to 128 of the Code of Criminal Procedure, 1973" which they
could jointly exercise at the first hearing of the case under the
Act. Section 5 of the Act enables the parties at the stage of first
hearing, to withdraw from the applicability of the Muslim Women's
Protection Act and be governed by the provisions of Criminal
Procedure Code. Otherwise, the Magistrate has to deal with the
application as per the provisions of the Muslim Women Protection
Act. Section 7 of the Muslim Women Protection Act deals with
Transitional Provisions. Only a Magistrate of the First Class
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exercising jurisdiction under the Code can dispose of the
application in accordance with the provisions of the Muslim
Women Protection Act. [Paras 15, 16][338-E-G][339-A-E]
Danial Latifi and Another v. Union of India (2001) 7
SCC 740 : [2001] 3 Suppl. SCR 419; Shabana Bano v.
Imran Khan (2010) 1 SCC 666 : [2009] 16 SCR 190 -
referred to.
1.3 The 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.
The jurisdiction of Family Courts is provided for in Section 7 of
the Act. The provisions of the Muslim Women's Protection Act
do not confer any jurisdiction on the Family Court. Section 3(2)
of the Muslim Women's Protection Act provides that the
application may be made to a Magistrate; but not to the Family
Court. Since the Muslim Women's Protection Act, 1986 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
Family Court cannot entertain the application of divorced Muslim
woman under Sections 3 and 4 of the Muslim Women's Protection
Act, 1986. [Paras 17, 20 and 23][339-E-F][341-F][345-B]
Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh
and Others 2000 (3) Mh.L.J. 555 - approved.
Anjum Hasan Siddiqui v. Smt. Salma B. AIR 1992 All
322 - referred to.
1.4 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
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or Section 4 of the Act of 1986. The High Court 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. No
reason is found warranting interference with the impugned order.
[Paras 25, 26][345-E-H]
Iqbal Bano v. State of Uttar Pradesh & Anr. (2007) 6
SCC 785 : [2007] 7 SCR 949 - distinguished.
Mohd. Ahmed Khan v. Shah Bano Begum and Others
(1985) 2 SCC 556 : [1985] 3 SCR 844; Danial Latifi
and Another v. Union of India (2001) 7 SCC 740 :
[2001] 3 Suppl. SCR 419; Shabana Bano v. Imran Khan
(2010) 1 SCC 666 : [2009] 16 SCR 190 - referred to.
PER INDIRA BANERJEE, J. (DISSENTING)
1.1 The Family Courts Act is a secular statute, which applies
to matters contemplated therein, irrespective of the religion of
the litigating parties. Section 3 of the Family Courts Act provides
for establishment of Family Courts, after consultation with the
High Court. On a reading of Section 7(1) along with explanation
(f) to Section 7(1) of the Family Courts Act, it is patently clear
that the Family Court, established under Section 3 of the Family
Courts Act, is clothed with the jurisdiction and powers exercisable
by a District Court or any Subordinate Civil Court, under any law
for the time being in force, to entertain and decide any suit or
proceeding for maintenance, which would include an application
under Section 3 of the 1986 Act for Muslim Women. [Paras 7,
10][347-C][349-C-D]
1.2 Section 20 of the Family Courts Act, with its nonobstante clause gives the provisions of the Family Courts Act
overriding effect, over any other law, which would include the
1986 Act for Muslim Women. The Family Courts Act is to 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 the Family Courts
Act. The Family Courts have jurisdiction in respect of the matters
specified in the Explanation (f) of Section 7(1), irrespective of
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religion or faith of the parties to the litigation. Wherever a Family
Court is constituted, such Family Court not only exercises the
jurisdiction and powers of any District Court or Subordinate Civil
Court in respect of suits and other proceedings of the nature
referred to in the Explanation (f) to Section 7(1), that is, suits and
other proceedings for maintenance, it also exercises the
jurisdiction and powers of a Magistrate of the First Class under
Chapter IX of the Cr.P.C. [Paras 24, 27][351-F-G][352-D-E]
1.3 Section 125 of the Cr.P.C. is a beneficial piece of
legislation, specially enacted as a measure of social justice, the
dominant purpose whereof is to ensure that a wife including a
divorced wife, a child or a parent is not driven to penury and
vagrancy. The Section provides a simple speedy remedy, inter
alia, for a wife including a divorced wife, who is neglected by her
husband/ex husband, even though he has sufficient means to
maintain her. Such a wife or divorced wife can obtain an order of
maintenance from a Magistrate. The 1986 Act for Muslim Women
has been enacted 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. [Paras 35, 39][355-E-G][356-D-E]
Vijay Kumar Prasad v. State of Bihar (2004) 5 SCC
196; Zohara Khatoon and Anr. v. Mohd. Ibrahim (1981)
2 SCC 509 : [1981] 2 SCR 910; Md. Ahmed Khan v.
Shah Bano Begum and Others (1985) 2 SCC 556 :
[1985] 3 SCR 844 - referred to.
1.4 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 was never the legislative intent of
the 1986 Act for Muslim Women. Equality before the law and
equal protection of the laws envisaged in Article 14 of the
Constitution of India applies as much to procedural laws as to
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substantive laws. The non-obstante Clause in Section 3(1) of the
1986 Act for Muslim Women provides, in effect and substance,
that a divorced Muslim woman would only be entitled to
maintenance as provided in Section 3(1) of the 1986 Act for
Muslim Women, notwithstanding any other law including Section
125 of the Cr.PC. [Paras 48, 49 and 55][359-G-H][360-A-B]
[362-E-F]
State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC
75 : [1952] SCR 284; D.K. Yadav v. J. M. A. Industries
Ltd. (1993) 3 SCC 259 : [1993] 3 SCR 930; Lachhman
Dass v. State of Punjab AIR 1963 SC 222 : [1963] 2
SCR 353; Meenakshi Mills v. Vishvanatha Sastri AIR
1955 SC 13 : [1955] 1 SCR 787; Budhan Choudhry v.
State of Bihar AIR 1955 SC 191 : [1955] 1 SCR 1045
- followed.
1.5 A divorced Muslim woman cannot claim maintenance
under Section 125 of the Cr.P.C. from her husband after the
enactment of the 1986 Act for Muslim Women. However, under
Section 3 read with Section 4 of the 1986 Act for Muslim Women,
a divorced Muslim woman is entitled to an order of maintenance,
if she is unable to maintain herself after the Iddat period and has
not remarried. Section 5 of the 1986 Act for Muslim Women
provides that a divorced woman and her former husband might
decide by an affidavit or any other declaration in writing, that
they would prefer to be governed by the provisions of Section
125 to 128 of the Cr.P.C. Section 7 of the Family Courts Act
expressly confers jurisdiction to a Family Court to exercise all
jurisdiction exercisable by any District Court or any Subordinate
Civil Court, under any law for the time being in force, in respect
inter alia of all suits and proceedings for maintenance. The Family
Court has also expressly been conferred with jurisdiction
exercisable by a Magistrate of the First Class under Chapter IX
of the Cr.P.C relating to maintenance. Under Section 7(2)(b) of
the Family Courts Act, the Family Court may exercise such other
jurisdiction as may be conferred on it by any other enactment.
The Family Courts Act, enacted long before enactment of the
1986 Act for Muslim Women, obviously did not contemplate the
later legislation. There is, therefore, no specific mention of the
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1986 Act for Muslim Women in the Family Courts Act.
[Paras 56, 58 and 59][362-G-H][363-B-D]
1.6 The 1986 Act for Muslim Women is essentially a civil
law, which makes provisions for maintenance for divorced Muslim
women and not a criminal statute. The 1986 Act for Muslim
women does not contain any penal provision for any default which
enables a divorced Muslim Woman to apply for maintenance under
the said Act. The penal provision of the 1986 Act for Muslim
Women is only to enforce compliance with an order under Section
31 of the said Act. The punishment of imprisonment is only for
non-compliance with the order of maintenance. The Magistrate
referred to in Section 3(2) and other Sections of the 1986 Act, is,
for all practical purposes, to be deemed to be a Civil Court
subordinate to the District Court. [Para 66][365-B-D]
1.7 It was never the intention of the 1986 Act for Muslim
Women to deprive divorced Muslim Women from the litigant
friendly procedures of the Family Courts Act and denude Family
Courts of jurisdiction to decide applications for maintenance of
divorced Muslim women. The Family Court would have
jurisdiction under Section 7 of the Family Courts Act to entertain
an application under Section 3 and 4 of 1986 Act for Muslim
Women, since the Court of Magistrate dealing with such an
application is to be deemed to be a Civil Court subordinate to
the District Court. 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. The
Family Court had the jurisdiction to convert the application of
the Appellant under Section 125 of the Cr.P.C into an application
under Section 3 of the 1986 Act for Muslim Women and to decide
the same. [Paras 68-71, 79][365-G-H][366-B-D][368-B]
Bangalore Water Supply v. A. Rajappa AIR 1978 SC
548 : [1978] 3 SCR 207 - followed.
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Iqbal Bano v. State of UP and Another (2007) 6 SCC
785 : [2007] 7 SCR 949; Tirath Singh v. Bachittar Singh
AIR 1955 SC 830 : [1955] 2 SCR 457 - relied on.
Modern School v. Union of India (2004) 9 SCC 741 :
[2004] 3 SCR 1161 - referred to.
Seaford Court Estates Ltd. v. Asher (1949) 2 All ER
155 - referred to.
In the Judgment of R. Banumathi, J.
[2007] 7 SCR 949
distinguished
Para 3
[1985] 3 SCR 844
referred to
Para 9
[2001] 3 Suppl. SCR 419
referred to
Para 13
[2009] 16 SCR 190
referred to
Para 15
In the Judgment of Indira Banerjee, J. (Dissenting)
(2004) 5 SCC 196
referred to
Para 36
[1981] 2 SCR 910
referred to
Para 36
[1985] 3 SCR 844
referred to
Para 37
[1952] SCR 284
followed
Para 49
[1993] 3 SCR 930
followed
Para 49
[1963] 2 SCR 353
followed
Para 50
[1955] 1 SCR 787
followed
Para 53
[1955] 1 SCR 1045
followed
Para 54
[2007] 7 SCR 949
relied on
Para 63
[1978] 3 SCR 207
followed
Para 74
[1955] 2 SCR 457
relied on
Para 77
[2004] 3 SCR 1161
referred to
Para 78
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
192 of 2011.
From the Judgment and Order dated 28.07.2010 of the High Court
of Judicature for Rajasthan, Bench at Jaipur, Jaipur in S.B. Criminal
Revision Petition No. 295 of 2009.
RANA NAHID @ RESHMA @ SANA & ANR. v. SAHIDUL
HAQ CHISTI
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Sunil Kumar Singh, Rameshwar Prasad Goyal, Puneet Jain, Harsh
Jain, Abhinav Gupta, and Ms. Pratibha Jain, Advs. for the appearing
parties.
The Judgments/Order of the Court were delivered/passed by
R. BANUMATHI, J.
1. This appeal arises out of the judgment dated 28.07.2010 passed
by the High Court of Rajasthan Bench at Jaipur in S.B. Criminal Revision
Petition No. 295 of 2009 in and by which High Court allowed the revision
petition filed by the respondent thereby setting aside the order passed by
the Family Court which has converted the application for maintenance
under Section 125 Cr.P.C. into Section 3 of the Muslim Women (Protection
of Rights on Divorce) Act, 1986 and also setting aside the maintenance
amount awarded to appellant No.1.
2. Brief facts of the case which led to the filing of this appeal are
that the marriage between appellant No.1-Rana Nahid @ Reshma @
Sana and respondent Sahidul Haq Chisti was solemnized on 08-03-1998
as per the Muslim rites and appellant No.2-son was born out of the
wedlock. Alleging that appellant No.1 was subjected to cruelty and
harassment for additional dowry and that she was thrown out of
matrimonial home, appellants filed a petition under Section 125 Cr.P.C
against the respondent. Thereafter, on 24-03-2008, appellant No.1
amended the petition on the basis of divorce given on 23-04-2008 by the
respondent-Sahidul. The appellants averred that the respondent is working
as a lecturer in Rajkiya Moiniya Senior Secondary School, Ajmer and
has been earning a sum of Rs.20,000/- per month approximately and he
also serves in "Mehmani ki Dargah" from where he earns Rs.20,000/-
per month and thus claimed a maintenance of Rs.6,000/- per month
towards her maintenance and Rs.2,500/- per month towards maintenance
of her son-appellant No.2 herein. The respondent has admitted that he is
a lecturer in Govt. Job and receives a salary of Rs.18,500/- per month.
3. The Family Court held that as the appellant No.1 is a Muslim
divorced woman, her petition for maintenance under Section 125 Cr.P.C.
is not maintainable. The Family Court treated the said application under
Section 125 Cr.P.C. as application under Section 3 of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (Muslim Women's Protection
Act) in the light of the judgment of this Court in Iqbal Bano v. State of
Uttar Pradesh & Anr. (2007) 6 SCC 785. The Family Court ordered
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respondent-Sahidul Haq to pay rupees three lakh in lump sum to appellant
No.1 towards her maintenance and future livelihood. The application of
appellant No.2 claiming maintenance has been accepted under Section
125 Cr.P.C. and the respondent has been ordered to pay Rs. 2,000/- per
month towards his maintenance till he attains majority.
4. Being aggrieved by the quantum of maintenance, the appellants
filed Revision Petition No. 295 of 2009 before the High Court of Rajasthan
at Jaipur for enhancement of maintenance. The respondent also filed
Revision Petition No. 221 of 2009 against the order of the Family Court.
While the matter was pending before the High Court, a sum of Rs.
1,00,000/- was paid by the respondent to appellant No.1. The High Court
held that the application under Section 125 Cr.P.C. was made before the
Family Court which does not have jurisdiction to entertain an application
under Section 3 of the Muslim Women's Protection Act. The High Court
held that the order of the Family Court converting the application under
Section 125 Cr.P.C. into an application under Section 3 of the Act is
without jurisdiction and on those findings, set aside the order of the Family
Court to that extent and allowed the revision preferred by the respondent.
However, liberty was given to appellant No.1 to file an application under
Section 3 of the Act of 1986 before the Court of competent Magistrate.
So far as the amount of rupees one lakh already paid to appellant No.1,
she was allowed to retain it, subject to the final outcome of the application
under Section 3 of the Act. The High Court, however, maintained the
maintenance amount awarded to appellant No.2.
5. It is submitted by the learned counsel for the appellants that the
Family Court has jurisdiction to decide cases under Section 3 of the
Muslim Women's Protection Act and the High Court was not right in
setting aside the same and erred in directing the appellant No.1 to file
application under Section 3 of Muslim Women's Protection Act.
6. Refuting the contentions, learned counsel for the respondent
submitted that an application under Section 125 Cr.P.C. cannot be
maintained by a Divorced Muslim Wife unless there is a consent of both
that the Husband and the divorced Wife to be governed by Section 125
Cr.P.C as per Section 5 of the Muslim Women's Protection Act. It was
further submitted that the Family Court has no jurisdiction to entertain
applications under Section 3 of the Act as the jurisdiction to file the case
under Muslim Women's Protection Act has not been conferred on the
family courts under Section 7(2)(b) of the Family Courts Act, 1984.
RANA NAHID @ RESHMA @ SANA & ANR. v. SAHIDUL
HAQ CHISTI [R. BANUMATHI, J.]
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7. Having regard to the rival contentions, the question falling for
consideration is whether the family court has jurisdiction to try application
filed by Muslim divorced woman for maintenance under Section 3 of
Muslim Women (Protection of Rights on Divorce) Act, 1986.
8. For proper appreciation of the contentions, we may usefully
refer to the provisions of the Act and the genesis of the enactments that
are under consideration before us.
9. Under the Muslim personal law, a divorced woman could be
awarded maintenance only during the iddat period and not later. In Mohd.
Ahmed Khan v. Shah Bano Begum and others (1985) 2 SCC 556, the
Supreme Court upheld the right of Muslim divorced wife under Section
125 Cr.P.C. because Explanation (b) of Section 125 (1) Cr.P.C. includes
a divorced wife till she remarries. In Shah Bano case, the Supreme
Court has held that a Muslim divorced woman unable to maintain herself
is entitled to claim maintenance under Section 125 Cr.P.C. even after
the iddat period was over.
10. After Shah Bano case, the Muslim Women (Protection of
Rights on Divorce) Act (For short 'Muslim Women Protection Act')
was enacted with effect from 19.05.1986 as per which a divorced Muslim
woman is not only entitled to maintenance for the iddat period from her
former husband but also to a reasonable and fair provision for the future.
The preamble of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 reads as under:-
"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."
11. Muslim Women (Protection of Rights on Divorce) Act, 1986
does not deviate itself from the purpose, object and scope of the provisions
of maintenance under Criminal Procedure Code. The provisions of the
Act are not inconsistent with the provisions of Chapter IX of the Code.
The provision of this enactment provides remedies beneficial to the Muslim
women divorcee by making the former husband liable to provide the
divorced woman with reasonable and fair provision in addition to providing
maintenance and where the husband fails to comply with the order without
sufficient cause, the Magistrate may issue warrant for levying the amount
of maintenance and may sentence him to imprisonment for a term which
may extend to one year. The near relatives of the woman are also made
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liable under Section 4 of the Act. In case, the relatives are not in a
position to pay her, the State Wakf Board is also made liable to provide
maintenance. While the Criminal Procedure Code provides the relief of
maintenance only, the Act of 1986 furnishes to divorced woman,
additionally, 'a reasonable and fair provision', the relief of recovery of
dower and return of marital gifts.
12. The important Section in the Act, 1986 is Section 3 which
provides that a divorced woman is entitled to obtain from her former
husband "maintenance", "reasonable and fair Provision" and "Mahr"
etc. Section 3(1)(a) and Section 3(2) of the Muslim Women's Protection
Act read as under:-
"3. Mahr or other properties of Muslim woman to be given
to her at the time of divorce.-(1) 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;
(2) Where a reasonable and fair provision and maintenance or
the amount of mahr or dower due has not been made or paid or
the properties referred to in clause (d) of sub-section (1) have not
been delivered to a divorced woman on her divorce, 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, mahr or dower or the delivery of properties, as the
case may be."
After the enforcement of the Muslim Women's Protection Act, a
divorced Muslim woman is entitled to maintenance not only for the period
of iddat from her former husband but also to a reasonable and fair
provision for her future.The wordings of Section 3 of the Act indicate
that the husband has two separate and distinct obligations: (1) to make a
"reasonable and fair provision" for his divorced wife; and (2) to provide
"maintenance" for her. Section 3 of the Act prescribes forum for redress
and the manner in which the order is to be executed. The Act confers
exclusive jurisdiction on the Magistrate of the First Class to entertain an
application under the Act by a Muslim woman where she resides.
13. In Danial Latifi and another v. Union of India, (2001) 7
SCC 740, the Constitution Bench of the Supreme Court considered the
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constitutional validity of the provisions of the Muslim Women (Protection
of Rights on Divorce) Act, 1986 and upheld the validity of the provisions
of the Act and held as under:-
"27. Section 3(1) of the Act provides that a divorced woman
shall be entitled to have from her husband, a reasonable and fair
maintenance which is to be made and paid to her within the iddat
period. Under Section 3(2) the Muslim divorcee can file an
application before a Magistrate if the former husband has not
paid to her a reasonable and fair provision and maintenance or
mahr due to her or has not delivered the properties given to her
before or at the time of marriage by her relatives, or friends, or
the husband or any of his relatives or friends. Section 3(3) provides
for procedure wherein the Magistrate can pass an order directing
the former husband to pay such reasonable and fair provision and
maintenance to the divorced woman as he may think fit and proper
having regard to the needs of the divorced woman, standard of
life enjoyed by her during her marriage and means of her former
husband. The judicial enforceability of the Muslim divorced
woman's right to provision and maintenance under Section 3(1)(a)
of the Act has been subjected to the condition of the husband
having sufficient means which, strictly speaking, is contrary to
the principles of Muslim law as the liability to pay maintenance
during the iddat period is unconditional and cannot be circumscribed
by the financial means of the husband. The purpose of the Act
appears to be to allow the Muslim husband to retain his freedom
of avoiding payment of maintenance to his erstwhile wife after
divorce and the period of iddat."
.........
"29.The important section in the Act is Section 3 which provides
that a divorced woman is entitled to obtain from her former husband
"maintenance", "provision" and "mahr", and to recover from his
possession her wedding presents and dowry and authorizes the
Magistrate to order payment or restoration of these sums or
properties. The crux of the matter is that the divorced woman
shall be entitled to a reasonable and fair provision and maintenance
to be made and paid to her within the iddat period by her former
husband. The wordings of Section 3 of the Act appear to indicate
that the husband has two separate and distinct obligations: (1) to
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make a "reasonable and fair provision" for his divorced wife; and
(2) to provide "maintenance" for her. The emphasis of this section
is not on the nature or duration of any such "provision" or
"maintenance", but on the time by which an arrangement for
payment of provision and maintenance should be concluded,
namely, "within the iddat period". If the provisions are so read,
the Act would exclude from liability for post-iddat period
maintenance to a man who has already discharged his obligations
of both "reasonable and fair provision" and "maintenance" by
paying these amounts in a lump sum to his wife, in addition to
having paid his wife's mahr and restored her dowry as per Sections
3(1)(c) and 3(1)(d) of the Act. ........"
30. A comparison of these provisions with Section 125 CrPC will
make it clear that requirements provided in Section 125 and the
purpose, object and scope thereof being to prevent vagrancy by
compelling those who can do so to support those who are unable
to support themselves and who have a normal and legitimate claim
to support are satisfied. If that is so, the argument of the petitioners
that a different scheme being provided under the Act which is
equally or more beneficial on the interpretation placed by us from
the one provided under the Code of Criminal Procedure deprive
them of their right, loses its significance. The object and scope of
Section 125 CrPC is to prevent vagrancy by compelling those
who are under an obligation to support those who are unable to
support themselves and that object being fulfilled, we find it difficult
to accept the contention urged on behalf of the petitioners."
[Underlining added]
The Constitution Bench upheld the provisions of the Act. But the
Constitution Bench did not authoritatively decide on the question whether
the Family Court would have jurisdiction to entertain an application filed
by a divorced Muslim Woman for maintenance under the provisions of
the Muslim Women Protection Act.
14. Under Section 3(1)(a) of the 1986 Act, a divorcee is entitled
to get a reasonable and fair provision and maintenance to be made and
paid to her within the iddat period. On construing the expression, "a fair
and reasonable provision and maintenance" as used in Section 3(1)(a)
of the 1986 Act, the Supreme Court in Danial Latifi case has summed
up its conclusion as under:-
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"36. While upholding the validity of the Act, we may sum up our
conclusions:
(1)
A Muslim husband is liable to make reasonable and fair
provision for the future of the divorced wife which obviously
includes her maintenance as well. Such a reasonable and
fair provision extending beyond the iddat period must be
made by the husband within the iddat period in terms of
Section 3(1)(a) of the Act.
(2)
Liability of a Muslim husband to his divorced wife arising
under Section 3(1)(a) of the Act to pay maintenance is not
confined to the iddat period.
(3)
 A divorced Muslim woman who has not remarried and who
is not able to maintain herself after the iddat period can
proceed as provided under Section 4 of the Act against her
relatives who are liable to maintain her in proportion to the
properties which they inherit on her death according to
Muslim law from such divorced woman including her
children and parents. If any of the relatives being unable to
pay maintenance, the Magistrate may direct the State Wakf
Board established under the Act to pay such maintenance.
(4)
The provisions of the Act do not offend Articles 14, 15 and
21 of the Constitution of India."
15. Section 3 of 1986 Act opens with the words "notwithstanding
anything contained in any other law for the time being in force," a divorced
woman shall be entitled to rights enumerated in clauses (a) to (d) of
Section 3(1) of 1986 Act. Muslim Women Protection Act may have
conferred more rights but the Act confers these rights notwithstanding
anything contained in Section 125 Cr.P.C. The non-obstante clause has
to be understood fairly and reasonably. The non-obstante clause cannot
be lightly assumed to bring in the effect of supersession. It should not be
allowed to demolish or extinguish the existing right unless the legislative
intention is clear, manifest and unambiguous. In Shabana Bano v. Imran
Khan (2010) 1 SCC 666, the Supreme Court quashed the order of the
Family Court holding that even if the Muslim wife had been divorced
during the period her application for maintenance is pending, she would
be entitled to claim maintenance from her husband under Section 125
Cr.P.C. So, the case has been remanded to Family Court for disposal of
the case on its merits in accordance with law.
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16. We may also refer to Section 5 of the Muslim Women's
Protection Act which gives divorced Muslim couples "an option to be
governed by the provisions of Sections 125 to 128 of the Code of Criminal
Procedure, 1973" which they could jointly exercise at the first hearing
of the case under the Act. Section 5 of the Act enables the parties at
the stage of first hearing, to withdraw from the applicability of the
Muslim Women's Protection Act and be governed by the provisions
of Criminal Procedure Code. Under Section 5 of the Muslim Women
Protection Act, on the date of the first hearing, a divorced woman
and her former husband can declare that they prefer to be governed
by Sections 125 to 128 of the Code and then the Magistrate has to
dispose of the application accordingly. Otherwise, the Magistrate
has to deal with the application as per the provisions of the Muslim
Women Protection Act. Section 7 of the Muslim Women Protection
Act deals with Transitional Provisions. As per Section 7 of the Act,
an application by a divorced woman under Section 125 or under
Section 127 of the Code pending before a Magistrate on the
commencement of Muslim Women Protection Act, shall,
notwithstanding anything contained in that Code, subject to the
provisions of Section 5 of the Act, shall be disposed of by such
Magistrate in accordance with the provisions of the Muslim Women
Protection Act. This makes the legal provision very clear. That is
only a Magistrate of the First Class exercising jurisdiction under
the Code can dispose of the application in accordance with the
provisions of the Muslim Women Protection Act.
17. The 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. The jurisdiction of Family
Courts is provided for in Section 7 of the Act. Sections 7 and 8 of the
Act read as under:-
"7. Jurisdiction. - (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,
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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;
(b) a suit or proceeding for a declaration as to the validity of a
marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with
respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in
circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of
any person;
(f) a suit or proceeding for maintenance;
(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.
18. Section 7(1)(a) of the Family Courts Act confers the entire
jurisdiction hitherto exercised by any district court or any subordinate
civil court in suits or proceedings relating to matters mentioned in clauses
(a) to (g) of the Explanation. Sub-clause (b) creates a legal fiction
endowing upon the Family Courts the status of the District Court or
subordinate Civil Court. Section 7(1) can apply only when:- (i) the suit or
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proceeding is of the nature envisaged by clauses (a) to (g) of the
Explanation; and (ii) concerning the matter where the jurisdictions are
exercisable by any District Court or Subordinate Court. On these counts,
the application under Section 3 of Muslim Women's Protection Act cannot
be said to be covered by Section 7(1) of the Act. As provided in Section
3(2) of Muslim Women's Protection Act, application can be moved only
before the First Class Magistrate having jurisdiction in the area under
Criminal Procedure Code. Thus, an application under Section 3 of the
Act cannot be maintained before the Family Court under Section 7(1) of
the Family Courts Act.
19. Section 7(2)(a) confers jurisdiction upon the Family Court
hitherto exercisable by a First Class Magistrate under Chapter IX (relating
to order for maintenance of wife, children and parents) of the Criminal
Procedure Code. Sub-section (2)(a) of Section 7 of the Family Courts
Act confers limited jurisdiction upon the Family Court relating to those
matters only as are covered under Chapter IX of Criminal Procedure
Code. Section 7(2)(b) however relates to conferment of any additional
jurisdiction on the Family Courts by other enactments. This provision is
in the nature of an enabling provision by which legislature can enlarge
the Court's jurisdiction by conferring additional jurisdiction.
20.