Saturday, 20 June 2020

Can Family Court Entertain Maintenance Petition Under Muslim Women (Protection of Rights on Divorce) Act? Question referred to higher bench of Supreme Court


In view of difference of opinions and the distinguishing
judgments (Hon'ble R. Banumathi, J. dismissed the appeal and
Hon'ble Indira Banerjee, J. allowed the appeal), the matter
be placed before Hon'ble the Chief Justice of India for
referring the matter to the Larger Bench.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.192 OF 2011

RANA NAHID @ RESHMA @ SANA Vs SAHIDUL HAQ CHISTI 
R. BANUMATHI, J
Dated:18TH JUNE, 2020
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 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
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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.
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
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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.
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
7
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
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
8
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
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:-
“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.”
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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 nonobstante
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.
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, 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 subsection
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 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. The expression “conferred on it” occurring in sub-clause (b) of
Section 7(2) speaks of conferment of the jurisdiction on the Family
Court by an enactment. Thus, under Section 7(2)(b), the jurisdiction
must be specifically conferred and cannot be assumed or deemed
to have been conferred. The provisions of the Muslim Women’s
Protection Act do not confer any jurisdiction on the Family Court. As
pointed out earlier, 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. The Muslim Women’s Protection Act was
enacted in 1986 subsequent to the Family Courts Act, 1984. In the

light of the provisions, under Section 3(2) of the Muslim Women’s
Protection Act especially conferring jurisdiction upon the First Class
Judicial Magistrate, the application under Section 3 can lie only to
the Magistrate having jurisdiction in the area.
21. Considering the provisions of Section 3 of Muslim Women’s
Protection Act vis-à-vis the provisions of the Family Courts Act in
Anjum Hasan Siddiqui v. Smt. Salma B. AIR 1992 All 322, the
learned Single Judge of the Allahabad High Court held as under:-
“8. Apart from the above no application under Section 3 lies to the
district court or sub-ordinate civil court. As provided in Section 3(2) of
1986 Act, the application can be moved before the first class Magistrate
having jurisdiction in the area under the Cr.P.C. Thus, Section 7(1) does
not help the respondent at all.
9. Sub-clause (2) of Section 7 of the Family Court Act is also of no help
to the respondent since the Act confers only a limited jurisdiction relating
to those maters only as are covered by Chapter IX of the Criminal P.C.
Only this limited jurisdiction has been transferred to the Family Court. To
this extent alone, the first Class Magistrate having jurisdiction in the area
for which Family Court has been established loses his jurisdiction which
is thence forth exercisable by the Family Court only.
10. Thus, we have seen that neither under sub-section (1) nor under
sub-section (2) of Section 7 the Family Court's Act has any jurisdiction to
entertain an application of the nature contemplated by Section 3 of the
1986 Act.
11. Faced with such a situation the learned counsel for the respondent
turned to sub-sec. (2)(b). He urged that jurisdiction may be deemed to
have been conferred on the Family Court under this provision. We are
afraid, the learned counsel is again on a weak ground. The words
'conferred on it' in sub-clause (b) speaks of conferment of jurisdiction on
the Family Court by an enactment. The jurisdiction must be specifically
conferred and cannot be assumed to have been conferred. No
provisions of 1986 Act however, confers any such jurisdiction on the
Family Court. On the other hand Section 3(2) of the 1986 Act provides
that the application may be made to a Magistrate and not to the Family
Court. Apart from this the 1986 Act was enacted subsequent to
the Family Court Act and its provisions supersedes all earlier
enactments. Hence this section must prevail over the Family Courts Act,
16
1984. Thus an application under Section 3 can lie only to the Magistrate
having jurisdiction in the area.
12. Section 3 of the 1986 Act itself recognises rights of divorced Muslim
Woman, prescribes a forum for rederess thereof and prescribes the
manner of execution of the order made in that behalf. This makes the Act
complete in itself and does not depend for support on any other
enactment. The section begins with a non-obstante clause and it
overrides all other provisions of the then existing laws. Alt provisions
contrary to what is contained in S-. 3 of 1986 Act, including the Family
Courts Act , 1984, shall stand superseded by its provision. A comparison
of the provisions of 1984 and 1986 Acts would also show that the
purpose and scope of the two Acts is somewhat different. Section 3 is
only limited to certain claims enumerated therein which alone can be put
forward by a divorced Muslim Woman under the Act in the manner
prescribed…...” (Underlining added)
22. The question whether the Family Court has jurisdiction to try
application of the Muslim divorced woman for maintenance after
coming into force the Muslim Women’s Protection Act, was
considered by the Full Bench of Bombay High Court in Karim
Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and others
2000 (3) Mh.L.J. 555 which also took the same view that a Muslim
woman can apply under Sections 3 and 4 of the Muslim Women’s
Protection Act only to the First Class Magistrate having jurisdiction
under the Code and the Family Court cannot deal with such
applications and held as under:-
“61. It is important to note that there is no enactment containing an
express provision that the Family Court shall have jurisdiction to deal
with applications made by a divorced Muslim women under sections
3 and 4 of the Muslim Women Act. On the contrary, the scheme of
the Muslim Women Act shows that such application can be made only to
the Magistrate of First Class exercising jurisdiction under the Code. The
Family Court's Act is a prior enactment. Muslim Women Act does not
even refer to the Family Court's Act. If it was the intention of the
legislature to see that a Muslim women can file application before a
Family Court an express provision to that effect would have been found
in the Muslim Women Ac t . On the contrary, under section 5 of the
17
Muslim Women Act, a divorced women 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 it as per the
provisions of the Muslim Women Act . There is no provision under which
a Muslim women can prefer to go to a Family Court by making a joint
declaration with her husband. Section 7 says that application by a
divorced women under section 125 or under section 127 of the Code
pending before a Magistrate on the commencement of the Muslim
Women Act shall notwithstanding anything contained in that Code and
subject to the provisions of section 5 of the Muslim Women Act shall be
disposed of by such Magistrate in accordance with the provisions of
the Muslim Women Ac t. This makes the legal provision very clear. It is
only a Magistrate of the First Class exercising jurisdiction under the
Code who can dispose of even the pending applications and that too in
accordance with the provisions of the Muslim Women Ac t. Therefore,
there is nothing in the provisions of the Muslim Women Act to suggest
that the Family Court has jurisdiction to entertain applications
under sections 3 and 4 of the Muslim Women Act.
62. Similar view has been taken by Division Bench of this Court in Noor
Jamaal's case (supra) and we respectfully concur with the said view. We
do not concur with decision of the Division Bench of this Court in
Allabuksh's case (supra) which holds that, where a Family Court has
been established, the power and jurisdiction of the Family Court to
entertain an application by a divorced Muslim wife is not taken away
expressly or by necessary implication by the Muslim Women Act and the
remedy under the Muslim Women Act is an additional remedy. In our
opinion, the fact that the Muslim Women Act does not refer to a Family
Court or does not say that application under sections 3 and 4 can be
filed before the Family Court is very material. If the jurisdiction of the
Family Court was sought to be protected, there would have been an
express provision making it clear that the Family Court has jurisdiction to
entertain applications of divorced Muslim women under sections
3 and 4 of the Muslim Women Act. We therefore hold that after coming
into force of the Muslim Women Act , a Muslim women can apply
under sections 3 and 4 of the said Act only to the First Class Magistrate
having jurisdiction under the Code . The Family Court cannot deal with
such applications.” [Underlining added]
23. In the present case, we are concerned with the question
whether the application under Section 3(2) of the Act of 1986 can be
filed before the Family Court or whether the Family Court can
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 fully agree
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with the view taken by the Full Bench of the Bombay High Court in
Karim Abdul Rehman Sheikh case. 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, in my view, the Family Court cannot entertain the
application of divorced Muslim woman under Sections 3 and 4 of
the Muslim Women’s Protection Act, 1986.
24. The learned counsel for the appellant placed reliance upon
the judgment in Iqbal Bano case and submitted that in the said
case, the Magistrate has converted the petition for maintenance
under Section 125 Cr.P.C. to the application under Section 3 of the
Muslim Women’s Protection Act, 1986 and the same was upheld by
the Supreme Court. The facts of the Iqbal Bano case are clearly
distinguishable from the facts of the present case. In Iqbal Bano
case, the application under Section 125 Cr.P.C. was made before
the Magistrate which also had jurisdiction to entertain application
under Section 3 of the Muslim Women’s Protection Act. In that
context, the Supreme Court upheld the order converting the
application under Section 125 Cr.P.C. as the one under Section 3 of
the Muslim Women’s Protection Act.
25. Therefore, the application under Section 3(2) of the Act of
1986 by the divorced wife has to be filed before the competent
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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.
26. In the result, the appeal is dismissed. The High Court has
given liberty to appellant No.1 to file application under Section 3 of
the Act of 1986 before the competent Magistrate. The application if
any already filed by the appellant No.1 or any application to be filed
before the competent Magistrate of the First Class shall be heard
and disposed of as expeditiously as possible. The Magistrate of the
First Class shall not be influenced by any of the views expressed by

this Court or by the High Court and shall consider the matter on its
own merits.
…………….……………J.
[R. BANUMATHI]
New Delhi;
June 18, 2020

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.192 OF 2011
RANA NAHID @ RESHMA
@ SANA & ANR. ...APPELLANTS
VERSUS
SAHIDUAL HAQ CHISTI .. RESPONDENT
J U D G M E N T
Indira Banerjee, J.
I have gone through the judgment prepared by my esteemed
sister, but I have not been able to persuade myself to agree that a
Family Court constituted under the Family Courts Act, 1984, lacks
jurisdiction to convert an application for maintenance filed by a
Muslim woman under Section 125 of the Code of Criminal
Procedure 1973 (hereinafter referred to as “Cr.P.C”) to an
application under Section 3 of the Muslim Women (Protection of
Rights on Divorce) Act, 1986, (hereinafter referred to as the “1986
Act for Muslim Women”), and decide the same.
2
2. The facts giving rise to this appeal, have been narrated by
my esteemed sister and are not repeated to avoid prolixity.
3. The Family Courts Act, 1984 has been enacted to provide for
the establishment of Family Courts inter alia with a view to secure
speedy settlement of disputes relating to marriage and family
affairs and for matters connected therewith.
4. The Statement of Objects and Reasons for enactment of the
Family Courts Act records that several associations of women,
other organizations and individuals from time to time, demanded
that Family Courts be set up for the settlement of family disputes,
where emphasis should be laid on conciliation and achieving
socially desirable results and adherence to rigid rules of procedure
and evidence should be eliminated.
5. The Law Commission had, in its 59th Report submitted in
1974, stressed that in dealing with disputes concerning the family,
the Court ought to adopt an approach, radically different from that
adopted in ordinary civil proceedings, and that it should make
reasonable efforts at settlement before the commencement of the
trial. In 1976, the Code of Civil Procedure was amended to
provide for a special procedure to be adopted in suits and
proceedings relating to matters concerning the family.
3
6. Parliament enacted the Family Courts Act to provide for
establishment of Family Courts with a view to promote conciliation
in, and secure speedy settlement of disputes relating to marriage
and family affairs, and matters connected therewith.
7. 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.
8. The Family Courts established under Section 3 of the Family
Courts Act, derive jurisdiction from Section 7 of the said Act which
is set out hereinbelow for convenience:-
“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, 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
4
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
circumstance 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;
(g) a suit or proceeding in relation to the guardianship of
the person or the custody of, or access to, any minor.
(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.”
9. Section 8 of the Family Courts Act provides :-
‘Exclusion of jurisdiction and pending proceedings.
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
5
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.”
10. 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.
11. A Family Court, constituted for adjudication of family
disputes, is quite different from the regular Criminal and Civil
Courts. The atmosphere in these Courts is much more informal
and far less intimidating than the atmosphere in regular Civil and
Criminal Courts. These Courts are not bound by rules of evidence
and rules of procedure. The Family Courts have the power to
devise their own procedure for adjudication of family disputes.
6
12. Section 5 of the Family Courts Act contemplates association
with Family Courts, of social welfare organizations, persons
professionally engaged in promoting welfare of the family, persons
working in the field of social welfare and any other persons, whose
association with the Family Court, would enable it to exercise its
jurisdiction more effectively, in accordance with the purposes of
the Family Courts Act.
13. Section 6 of the Family Courts Act provides for appointment,
inter alia, of counsellors to assist a Family Court, in the discharge
of its functions, and Section 9 of the Family Courts Act casts a
duty on the Family Courts to endeavour, wherever it is possible, to
assist and persuade the parties in arriving at a settlement in
respect of the subject matter of the suit or proceeding, and for this
purpose a Family Court may, subject to any rules made by the
High Court, follow such procedure as it may deem fit. Unlike a
Criminal Court or a Civil Court, a Family Court is obliged to adjourn
proceedings, whenever there is reasonable possibility of
settlement between the parties.
14. The Family Court is to be deemed to be a Civil Court and
have all the powers of such Court under Section 10 of the Family
Courts Act, and subject to the other provisions of the Family Courts
Act and the Rules made thereunder, the provisions of the Civil
Procedure Code, 1908 (hereinafter referred to as ‘CPC’) apply to
7
suits and proceedings before the Family Court, except for
proceedings under Chapter IX of the Cr.P.C.
15. Notwithstanding sub-section (1) and sub-section (2) of
Section 10 of the Family Courts Act, which makes the provisions of
the CPC applicable to suits and proceedings before the Family
Court, other than those under Chapter IX of the Cr.P.C., and the
provisions of the Cr.P.C. applicable to all the proceedings under
Chapter IX of that Code, it is open to the Family Court to lay down
its own procedure with a view to arrive at a settlement in respect
of the subject matter of the suit or proceeding.
16. Section 12 of the Family Courts Act envisages the assistance
inter alia of professional experts in the field of family welfare,
whether or not related to the parties, to assist the Family Courts in
discharging their functions imposed by the Family Courts Act.
17. An important facet of the Family Courts Act is Section 13 of
the said Act, which provides that notwithstanding anything
contained in any law, no party to any suit or proceedings before a
Family Court, shall be entitled as of right, to be represented by a
legal practitioner. If the Family Court considers it necessary in the
interest of justice, it may seek the assistance of a legal expert as
amicus curiae. In this country, women are, by and large,
economically weaker. In the regular Civil and Criminal Courts,
8
economically weak applicants, unable to afford lawyers of standing
could be pitted against the best legal brains hired by financially
strong opponents. However, in proceedings for maintenance in
the Family Court, the parties are equally poised, with the same
standard of legal representation.
18. Another significant feature of the Family Courts Act is
Section 14, which enables a Family Court to receive as evidence,
any report, statement, document, information or matter that may
in its opinion help to deal effectively with a dispute, whether or
not the same would be otherwise relevant or admissible under the
Indian Evidence Act, 1872.
19. Under Section 16 of the Family Courts Act, the evidence of
any person which is of a formal character, may be given by
affidavit, and subject to just exceptions, be read in evidence in any
suit or proceedings before a Family Court.
20. Therefore, in proceedings for maintenance, in a Family Court,
Certificates, Documents etc. issued by Authorities/Employers etc.
may be proved by affidavits, without requiring presence in Court of
disinterested witnesses, whose failure and/or inability to appear in
Court on the dates of hearing often delays the proceedings.
9
21. Section 18 of the Family Courts Act makes a decree or order
other than an order under Chapter IX of the Cr.P.C. executable in
the same manner as a decree of a Civil Court, as prescribed by the
CPC. An order under Chapter IX of the Cr.PC may be executed in
the manner prescribed for the execution of such order by the Cr.PC
22. Where a Family Court has been established for any area,
Section 8 of the Family Courts Act denudes the District Court or
any Subordinate Civil Court referred to in sub-section (1) of Section
7 of jurisdiction in respect of any suit or proceeding of the nature
referred to in the Explanation to that sub-section.
23. Section 8(b) of the Family Courts Act prohibits any
Magistrate from exercising jurisdiction or powers under Chapter IX
of the CR.P.C. in relation to any area for which a Family Court has
been established.
24. It is important to note that Section 20 of the Family Courts
Act, with its non-obstante 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.
10
25. The non-obstante clause in Section 20 makes the legislative
intent in enacting the Family Courts Act absolutely clear. The
provisions of the Act are to have effect, notwithstanding anything
inconsistent in any other law for the time being in force. In my
view, the expression “in any other law, for the time being in force”,
cannot be construed narrowly to mean a law which was in force on
the date of enactment and/or enforcement of the Family Courts
Act, as sought to be argued by Counsel appearing on behalf of the
respondent. The expression “any other law for the time being in
force” would include subsequently enacted laws, in force, as long
as Section 20 of the Family Courts Act is in operation.
26. On a reading of Sections 7(1) and 7(2) of the Family Courts
Act, it is patently clear that a Family Court is deemed to be a
District Court, or as the case may be Subordinate Civil Court, in the
area to which the jurisdiction of the Family Court extends, in
respect of proceedings of the nature, referred to in the Explanation
to Section 7(1) and is to be deemed to be the Court of a Magistrate
of the First class for the purpose of exercising jurisdiction under
Chapter IX of the Cr.P.C. Proceedings for maintenance are
essentially civil proceedings.
27. As observed above, the Family Courts have jurisdiction in
respect of the matters specified in the Explanation (f) of Section
11
7(1), irrespective of 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.
28. The relevant provisions of Chapter IX of the Cr.P.C. are set
out hereinbelow for convenience:
“CHAPTER IX
ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS
125. Order for maintenance of wives, children and
parents.- (1) If any person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where such child,
is, by reason of any physical or mental abnormality or injury
unable to maintain itself, or
(d) his father or mother, unable to maintain himself or
herself, a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child, father or
mother, at such monthly rate, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate may from time to
time direct;
… Explanation.- For the purposes of this Chapter,-
(a) “minor” means a person who, under the provisions of the
Indian Majority Act, 1875 (9 of 1875) is deemed not to have
attained his majority;
(b) “wife includes a woman who has been divorced by, or
12
has obtained a divorce from, her husband and has not
remarried.
….
126. Procedure.- (1) Proceedings under section 125 may be
taken against any person in any district-
(a) where he is, or
(b) where he or his wife, resides, or
(c) where he last resided with his wife, or as the case may be,
with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the
presence of the person against whom an order for payment of
maintenance is proceeded to be made, or, when his personal
attendance is dispensed with, in the presence of his pleader, and
shall be recorded in the manner prescribed for summons- cases:
Provided that if the Magistrate is satisfied that the person
against whom an order for payment of maintenance is proposed
to be made is wilfully avoiding service, or wilfully neglecting to
attend the Court, the Magistrate may proceed to hear and
determine the case ex parte and any order so made may be set
aside for good cause shown on an application made within three
months from the date thereof subject to such terms including
terms at to payment of costs to the opposite party as the
Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall
have power to make such order as to costs as may be just.
127. Alteration in allowance.-…….
128. Enforcement of order of maintenance.- A copy of the
order of [maintenance or interim maintenance and expenses of
proceeding, as the case may be,] shall be given without payment
to the person in whose favour it is made, or to his guardian, if any
or to the person to [whom the allowance for the maintenance or
the allowance for the interim maintenance and expenses of
proceeding, as the case may be,] is to be paid; and such order
may be enforced by any Magistrate in any place where the person
against whom it is made may be, on such Magistrate being
satisfied as to the identity of the parties and the non- payment of
the [allowance, or as the case may be, expenses, due].”
13
29. The right to equality, irrespective of religion, is a basic
human right, recognized, reaffirmed and reiterated in the Universal
Declaration of Human Rights adopted by the United Nations on
December 10, 1948. Article 2 of the declaration reads:
“Article 2 : Everyone is entitled to all the rights and
freedoms set forth in the declaration, without distinction
of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin,
property, birth or other status.”
30. The International Covenant for Civil and Political Rights
(ICCPR) obligates the state parties to ensure equal right of women
to enjoyment of all rights mentioned in each of the covenants. This
right is irrespective of religion. Article 14 of the ICCPR mandates
“All persons shall be equal before the Courts and Tribunals ” and
Article 26 declares that “all persons are equal under the law and
are entitled without any discrimination, to equal protection of the
law…”.
31. The Convention on the Elimination of All Forms of
Discrimination against Women 1979, commonly referred to as
CEDAW, recognizes amongst others, the right of women to equality
irrespective of religion, as a basic human right. Article 2 of CEDAW
exhorts State Parties to ensure adoption of a woman friendly legal
system and woman friendly policies and practices.
14
32. As a signatory to the CEDAW, India is committed to adopt a
woman friendly legal system and woman friendly policies and
practices. The 1986 Act for Muslim Women, being a post CEDAW
law, this Court is duty bound to interpret the provisions of the said
Act substantively, liberally, and purposefully, in such a manner as
would benefit women of the Muslim community.
33. Under the Indian Constitution, the right to equality is a
fundamental right. All persons are equal before the law and are
entitled to equal protection of the laws, be it substantive law or
procedural law. Article 15 of the Constitution of India clearly
prohibits discrimination on grounds, inter alia, of religion or sex.
34. The competing and conflicting principles of religious freedom
of citizens and gender equality for women, has posed a major
challenge to the judiciary in India. Personal laws of the Muslims,
which are governed by the Shariat law, are protected under the
umbrella of religious freedom and therefore immune from
challenge on the ground of violation of any fundamental right or
other constitutional right. Procedural laws would not, however,
enjoy the same immunity to challenge which substantive Muslim
Personal Laws enjoy.
35. Section 125 of the Cr.P.C. is a beneficial piece of legislation,
specially enacted as a measure of social justice, the dominant
15
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.
36. Proceedings under Section 125 of the Cr.P.C. are of a civil
nature, as held by this Court in Vijay Kumar Prasad v. State of
Bihar1. There is no penal provision for neglect and/or failure to
maintain a wife or a divorced wife. However, non compliance of an
order of maintenance attracts the penal provisions of the Cr.P.C. In
Zohara Khatoon and Anr. v. Mohd. Ibrahim2, this Court held
that wife includes a woman who has obtained a decree for
dissolution of marriage under the Dissolution of Muslim Marriages
Act, 1939.
37. In Md. Ahmed Khan v. Shah Bano Begum and Others3,
this Court held that Section 125 of the Cr.P.C, which obliges a
husband to pay maintenance to his wife, including a divorced wife,
cannot be overridden by the personal laws of the Muslims.
1. (2004) 5 SCC 196
2. (1981) 2 SCC 509
3. (1985) 2 SCC 556
16
38. This Court held that although Muslim law limits the
husband’s liability to provide for maintenance of the divorced wife
to the period of iddat, it would be unjust to extend this principle of
Muslim law to a case, where a divorced wife is unable to maintain
herself, in which case she could have recourse to Section 125 of
the Cr.PC. Unfortunately, the aforesaid judgment led to protests,
from a section of the Muslim community, after which Parliament
enacted the 1986 Act for Muslim Women, which nullified the effect
of the judgment of this Court in the Shah Bano Case (supra).
39. 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.
40. Section 3 of the 1986 Act for Muslim Women provides:-
“Section 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;
(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;
17
(c) an amount equal to the sum of mahr or dower agreed
to be paid to her at the time of her marriage or at any
time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of
marriage or after her marriage by her relatives or friends
or the husband or any relatives of the husband or his
friends.
(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.
(3) Where an application has been made under subsection
(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) the amount
equal to the sum of mahr or dower has not been paid or
that the properties referred to in clause (d) of sub-section
(1) have not been delivered to her, 3 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 it 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,
for the payment of such mahr or dower or the delivery of
such properties referred to in clause (d) of sub-section (1)
the divorced woman: 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.
(4) If any person against whom an order has been made
under sub-section (3) fails without sufficient cause to
comply with the order, the Magistrate may issue a
warrant for levying the amount of maintenance or mahr
or dower due in the manner provided for levying fines
under the Code of Criminal Procedure, 1973 (2 of 1974),
and may sentence such person, for the whole or part of
18
any amount remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to
one year or until payment if sooner made, subject to
such person being heard in defence and the said
sentence being imposed according to the provisions of
the said Code.
41. Under Section 3(1) of the 1986 Act for Muslim Women, a
divorced Muslim woman would 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; (c) an amount equal to
the sum of mahr or dower agreed to be paid to her at the time of
her marriage, or at any time thereafter, according to Muslim law;
and (d) to all the properties given to her before or at the time of
marriage or after her marriage by her relatives or friends or the
husband or any relatives of the husband or his friends.
42. Section 3(1) of the 1986 Act for Muslim Women, starts with a
non obstante clause. The non-obstante clause in Section 3(1)
gives overriding effect to the substantive provisions of Section
3(1) of 1986 Act for a Muslim women. A divorced Muslim woman
would be entitled to maintenance in accordance with Section 3(1)
of the 1986 Act for Muslim Women, notwithstanding anything
contained in any other law in force, including Sections 125 to 128
19
of the Cr.P.C. The non-obstante clause is restricted in its
application to sub section (1) of Section 3. It does not apply to
sub-Sections (2) and (3) of the 1986 Act for Muslim Women.
43. Section 2(c) of the 1986 Act for Muslim women defines
“Magistrate to mean Magistrate of the First Class, exercising
jurisdiction under the Code of Criminal Procedure, 1973 in the area
where the divorced woman resides”.
44. Section 4 of the 1986 Act for Muslim Women, enabling the
Magistrate to direct relatives to pay maintenance in certain
circumstances, is not relevant for the purpose of this application.
Section 5 which gives the option to the divorced woman and her
husband to be governed by the provisions of Section 125 to 128 of
the Cr.P.C., provided they give a declaration by affidavit, is also not
attracted in this case, since the Respondent has not agreed to be
governed by the provisions of Sections 125 to 128 of the Cr.P.C.
45. Section 7 provides that every application by a divorced
Muslim woman under Section 125 or Section 127 of the Cr.P.C.,
pending before a Magistrate at the time of commencement of the
1986 Act for Muslim Women shall, notwithstanding anything
contained in that Code, and subject to the provisions of Section 5
of the 1986 Act for Muslim Women, of exercising option to be
governed by the aforesaid provisions of the Code, be disposed by
20
the Magistrate in accordance with the provisions of 1986 Act for
Muslim women.
46. In this case, the appellant made an application under Section
125 of Cr.P.C. claiming maintenance as wife. In course of the
proceedings, it transpired that the appellant’s husband had
divorced her by the ‘Triple Talaq’ method, after which the
application of the appellant was treated as an application under
Section 3 of the 1986 Act for Muslim Women. It may be pertinent
to note that divorce by the ‘Triple Talaq’ is no longer valid, after
enactment of the Muslim Women (Protection of Rights on
Marriage) Act, 2019.
47. The question which arises for determination of this Court is,
whether the 1986 Act for Muslim Women, particularly Section 3(2),
3(3), 3(4), 4(c), 4(2) and 7 thereof read with the definition of
“Magistrate” in Section 2(c), impliedly bars the jurisdiction of the
Family Court to entertain or decide an application filed by a
divorced Muslim Woman for maintenance. 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 in my view impermissible in
law.
21
48. 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.
49. 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 substantive laws. This proposition finds
support from the judgment of this Court in State of West Bengal
v. Anwar Ali Sarkar reported in AIR 1952 SC 75. Reference
may also be made to the judgment of this Court in D.K. Yadav v.
J. M. A. Industries Ltd. reported in (1993) 3 SCC 259 where
this Court held:
“10. In State of W.B. v. Anwar Ali Sarkar per majority, a
seven-Judge Bench held that the rule of procedure laid
down by law comes as much within the purview of Article
14 of the Constitution as any rule of substantive law...”
22
50. In Lachhman Dass v. State of Punjab reported in AIR
1963 SC 222, a Constitution Bench of this Court accepted that
Article 14 prohibited discriminatory legislation whether substantive
or procedural. However, the majority found that Article 14 did not
forbid reasonable classification and accordingly rejected a
challenge to a law which provided a special procedure for the
recovery of dues from the customers of State Bank. In Lachhman
Dass (supra) the majority held:
“22….The law is now well settled that while Art.14
prohibits discriminatory legislation directed against one
individual or class of individuals, it does not forbid
reasonable classification, and that for this purpose even
one person or group of persons can be a class.
Professor Willis says in his Constitutional Law p.580 “a
law applying to one person or one class of persons is
constitutional if there is sufficient basis or reason for
it…
23. On the principles stated above we are of the
opinion that the Patiala State Bank is a class by itself
and it will be within the power of the State to enact a
law with respect to it. We are also of the opinion that
the differentia between the Patiala State Bank and the
other Banks has a rational bearing on the object of the
legislation. If the Funds of the Patiala State Bank are
State Funds, a law which assimilates the procedure for
the determination and recovery of amounts due to the
Bank from its customers to that prescribed for the
determination and recovery of arrears of revenue must
be held to have a just and reasonable relation to the
purpose of the legislation. A law which provides for
State funds being advanced to customers through State
Bank can also provide for its being recovered in the
same manner as revenue….”
51. Subba Rao J., delivering a separate dissenting judgment
held:
“51. It is also well settled that the guarantee of equal
protection applies against substantive as well as
23
procedural laws. Jennings in his “Law of the
Constitution”, 3rd Edn., p.49 describes the idea of
equality of treatment thus:..’
52. It is true that the view of Subba Rao J. was the minority view.
However, there was no difference between the majority and the
minority with the proposition of law summarized by Subba J. as
quoted above.
53. In Meenakshi Mills v. Vishvanatha Sastri reported in AIR
1955 SC 13, a Constitution Bench of this Court held:
“6. …. Article 14 of this Part guarantees to all persons
the right of equality before the law and equal protection
of the laws within the territory of India. This article not
only guarantees equal protection as regards
substantive laws but procedural laws also come
within its ambit. The implication of the article is that
all litigants similarly situated are entitled to avail
themselves of the same procedural rights for relief, and
for defence with like protection and without
discrimination. The procedural provisions of Act 30 of
1947 had therefore to stand the challenge of Article 14
and could only be upheld provided they withstood that
challenge.”
54. In Budhan Choudhry v. State of Bihar reported in AIR
1955 SC 191, a seven Judge Constitution Bench of this Court
decided a challenge to Section 30 of the Cr.P.C observing that:
“5. The provisions of Article 14 of the Constitution have
come up for discussion before this Court in a number of
cases, namely, Chiranjit Lal Chowdhuri v. Union of India
[AIR 1951 SC 41], State of Bombay v. F.N. Balsara [AIR
1951 SC 318], State of West Bengal v. Anwar Ali Sarkar
[AIR 1952 SC 75], Kathi Raning Rawat v. State of
Saurashtra[AIR 1952 SC 123], Lachmandas Kewalram
Ahuja v. State of Bombay [AIR 1952 SC 235] and Qasim
Razvi v. State of Hyderabad [AIR 1953 SC 156] and
24
Habeeb Mohamad v. State of Hyderabad [AIR 1953 SC
287]. It is, therefore, not necessary to enter upon any
lengthy discussion as to the meaning, scope and effect
of the article in question. It is now well established that
while Article 14 forbids class legislation, it does not
forbid reasonable classification for the purposes of
legislation. In order, however, to pass the test of
permissible classification two conditions must be
fulfilled, namely, (i) that the classification must be
founded on an intelligible differentia which
distinguishes persons or things that are grouped
together from others left out of the group and (ii) that
differentia must have a rational relation to the object
sought to be achieved by the statute in question. The
classification may be founded on different bases;
namely, geographical, or according to objects or
occupations or the like. What is necessary is that there
must be a nexus between the basis of classification and
the object of the Act under consideration. It is also
well established by the decisions of this Court
that Article 14 condemns discrimination not only
by a substantive law but also by a law of
procedure. The contention now put forward as to
the invalidity of the trial of the appellants has,
therefore to be tested in the light of the
principles so laid down in the decisions of this
Court.”
55. 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 as enumerated
hereinabove, notwithstanding any other law including Section 125
of the Cr.PC.
56. It is now settled that 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,
25
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.
57. The constitutional validity of the 1986 Act for Muslim Women
has been upheld by this Court in Danial Latifi and Another v.
Union of India (supra). There is however, no authoritative
decision of this Court on the question of whether the Family Courts
have jurisdiction to decide an application of a Muslim Woman for
maintenance under the provisions of the 1986 Act for Muslim
women.
58. As observed above 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
26
Family Courts Act, the Family Court may exercise such other
jurisdiction as may be conferred on it by any other enactment.
59. 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
1986 Act for Muslim Women in the Family Courts Act.
60. Section 8 excludes the jurisdiction of District Court or
Subordinate Civil Court in respect of any suit or proceeding of the
nature referred to in the Explanation to sub-Section (1) of Section
7 and also excludes the jurisdiction of a Magistrate in relation to an
application under Chapter IX of the Cr.P.C., once a Family Court is
constituted with territorial jurisdiction coextensive with that of the
District Courts or the Subordinate Civil Courts or the Courts of First
Class Magistrates under Chapter IX of the Cr.P.C. There has not
been any amendment in the Family Courts Act after enactment of
the 1986 Act for Muslim Women to expressly confer jurisdiction on
Family Courts in respect of proceedings under the 1986 Act for
Muslim Women.
61. It has thus been argued on behalf of the Respondent that the
Family Courts do not have the jurisdiction exercisable by a
Magistrate of the First Class under the 1986 Act for Muslim
Women, since the 1986 Act for Muslim Women, does not confer
27
any such jurisdiction on the Family Courts, and Section 7 read with
Section 8 of the Family Courts Act only clothes the Family Court
with the jurisdiction of the First Class Magistrate in respect of
proceeding for maintenance under Chapter IX of the Cr.P.C.
62. If there is any ambiguity, with regard to the jurisdiction of
the Family Court, by reason of use of the expression subordinate
Civil Court in Section 7(1)(a) and (b) of the Family Courts Act and
the specification of Magistrate of the First Class exercising
jurisdiction under Chapter IX of the Cr.P.C. in Section 7(2)(a)
thereof, this Court is duty bound to clear the ambiguity by
interpreting the law in consonance with the fundamental rights
conferred under Articles 14 and 15 of the Constitution, and the
country’s commitments under International Instruments and
Covenants such as the CEDAW, keeping in mind the fact that the
Family Courts Act was enacted two years before the 1986 Act for
Muslim Women.
63. In Iqbal Bano v. State of UP and Another4, this Court
held that the 1986 Act for Muslim Women only applies to divorced
women and not to a woman who was not divorced. In the
aforesaid case, this Court held that proceedings under Section 125
of the Cr.P.C. were civil in nature, and if it were noticed that there
was a divorced Muslim woman who had made an application under
4 (2007) 6 SCC 785

Section 125 Cr. P.C., it was open to the Court to treat the same as
a petition under the 1986 Act for Muslim Women, considering the
beneficial nature of the legislation.
64. Sub-section (2) of Section 3 provides that 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) of Section 3 have not
been delivered to a divorced woman on her divorce, she or any
one duly authorized 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. 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.
65. Sub-section (2) of Section 3 is an enabling provision which
enables a divorced Muslim woman to make an application to a
Magistrate for an order for payment of maintenance or mehr or
dower or delivery of properties, as the case may be. The non29
obstante clause is restricted to sub-section (1) of Section 3 and
does not cover sub-section (2) of Section 3 of the 1986 Act for
Muslim Women. There is no conflict between Section 3(2) of the
1986 Act for Muslim women and the Family Courts Act. On the
other hand, Section 20 of the Family Courts Act, 1984 gives
overriding effect to the Family Courts Act notwithstanding anything
therewith contained in any other law in force. The Family Court is
to exercise all the jurisdiction exercisable by any District Court or
any other subordinate Civil court in respect of a proceeding for
maintenance.
66. 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 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.

67. Though divorced Muslim women are excluded from the
purview of Section 125 of the Cr.PC by reason of the 1986 Act for
Muslim Women, Parliament has in its wisdom considered it
necessary to make provisions for expeditious orders in
applications for maintenance filed by divorced Muslim women. It
is with this object in mind that Muslim women have been given the
liberty of approaching the Magistrate and the Magistrate is
required to make an order within one month from the date of filing
of the application and the order of the Magistrate is executable in
the same manner for levying fines under the Cr.PC. Violation of an
order of the Magistrate entails sentence of imprisonment for a
term which might extend to one year or until payment if sooner
made, subject to such person being heard in defence and the
sentence being imposed according to the provisions of the Cr.PC.
68. In my view, 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.
69. If proceedings under Section 125 Cr.P.C. are civil in nature as
held by this Court in Iqbal Bano (Supra), the Court of the
Magistrate dealing with an application under Section 125 Cr.P.C. is
to be deemed a Civil Court for the purpose of deciding the

application under Section 125 Cr.P.C. On a parity of reasoning, an
application under Section 3/4 of the 1986 Act for Muslim Women is
also civil in nature. The Court deciding an application under
Section 3/4 of the 1986 Act for Muslim Women is to be deemed to
be a Civil Court.
70. Thus, 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.
71. 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.
72. It is true, that a matter which should have been, but has not
been provided for in a statute cannot be supplied by courts, as to
do so will be legislation and not construction. But there is no
presumption that a ‘casus omissus’ exists and language
permitting, the courts should avoid creating a ‘casus omissus’
where there is none.
32
73. To quote Denning, L.J. in Seaford Court Estates Ltd. v.
Asher reported in (1949) 2 All ER 155:
“When a defect appears a judge cannot simply fold
his hands and blame the draftsman. He must set to
work on the constructive task of finding of the
intention of Parliament and then he must
supplement the written words so as to give ‘force
and life’ to the intention of the Legislature. A judge
should ask himself the question how, if the makers of
the Act had themselves come across this ruck in the
texture of it, they would have straightened it out? He
must then do as they would have done. A judge
must not alter the material of which the act is
woven, but he can and should iron out the creases”.
74. The Supreme Court, while dealing with the definition of
‘Industry’ in the Industrial Disputes Act, 1947, in Bangalore
Water Supply v. A. Rajappa5, approved the rule of construction
stated by Denning, L.J. This Court found the definition too general
and ambiguous. BEG, C.J.I., said that the situation called for “some
judicial heroics to cope with the difficulties raised”. Krishna Iyer, J.
who delivered the leading majority judgment in that case referred
with approbation to the passage extracted above, from the
judgment of Denning, L.J. in Seaford Court Estates Ltd. v.
Asher (supra).
75. The proposition of law which emerges from the judgments
referred to above is that, in discharging its interpretative function,
the court can even correct obvious drafting errors. In an
5 AIR 1978 SC 548
33
appropriate case, “the court will add words, or omit words or
substitute words”. But “before interpreting a statute in this way
the Court must be abundantly sure of three matters: (1) the
intended purpose of the statute or provision in question, (2) that
by inadvertence the draftsman and Parliament failed to give effect
to that purpose in the provision in question; and (3) the substance
of the provision Parliament would have made, although not
necessarily the precise words Parliament would have used, had the
error in the Bill been noticed.”
76. Of course in this case, this Court has not added, omitted or
substituted anything. 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.
77. To quote Venkatarama Aiyar, J. in Tirath Singh v. Bachittar
Singh6 “where the language of a statute, in its ordinary meaning
and grammatical construction, leads to a manifest contradiction of
the apparent purpose of the enactment, or to some inconvenience
or absurdity, hardship or injustice, presumably not intended, a
construction may be put upon it which modifies the meaning of
6. AIR 1955 SC 830
34
the words, and even the structure of the sentence.”
78. Tirath Singh v. Bachittar Singh (supra) has been
followed in innumerable judgments of this Court and the passage
extracted above has been quoted with approval in Modern
School v. Union of India reported in (2004) 9 SCC 741.
79. I am of the view that the Family Court, for the reasons
discussed above, 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.
80. The appeal should, in my view, be allowed. The judgment
and order under appeal are liable to be set aside.
.................................J
(INDIRA BANERJEE)
JUNE 18, 2020
NEW DELHI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 192 OF 2011

RANA NAHID @ RESHMA @ SANA Vs SAHIDUL HAQ CHISTI
O R D E R
In view of difference of opinions and the distinguishing
judgments (Hon'ble R. Banumathi, J. dismissed the appeal and
Hon'ble Indira Banerjee, J. allowed the appeal), the matter
be placed before Hon'ble the Chief Justice of India for
referring the matter to the Larger Bench.
……………………………………………………….J.
[R. BANUMATHI]
NEW DELHI …………………………………………………...J.
18TH JUNE, 2020 [INDIRA BANERJEE]
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