19 June 2020

Divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband

Muslim divorced wife - entitlement of maintenance - sec.125 of CrPC - Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 - jurisdiction and power of family court to convert an application filed u/s.125 of CrPC into an application u/s. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Held: 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.

Family Court would have jurisdiction under Section 7 of the Family Courts Act to entertain an application under Section 3 and 4 if The Muslim Women (Protection of Rights on Divorce) Act, 1986.

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, 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.[Para No.56]

Divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband

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 non- 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.[Para No.65 to 70]


{Matter is refered to Larger Bench}

Supreme Court of India

Rana Nahid @ Reshma @ Sana
Vs.
Sahidul Haq Chisti

Decided on 18/06/2020





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