2020 Supreme(SC) 415

SUPREME COURT OF INDIA
R. Banumathi, Indira Banerjee, JJ.
RANA NAHID @ RESHMA @ SANA & ANR. – Appellants
VERSUS
SAHIDUL HAQ CHISTI – Respondent
Criminal Appeal No. 192 of 2011
Decided on : 18-06-2020

Headnote:

Per R. Banumathi, J.

(A) Muslim Women (Protection of Rights on Divorce) Act, 1986 – Sections 3 and 4 – Criminal Procedure Code, 1973 – Section 125 – Application for maintenance – Maintainability – Under Section 3(1)(a) of 1986 Act, a divorcee is entitled to get a reasonable and fair provision and maintenance to be made and paid to her within iddat period – Muslim Women (Protection of Rights on Divorce) Act, 1986 does not deviate itself from purpose, object and scope of provisions of maintenance under Criminal Procedure Code – Provisions of Act are not inconsistent with provisions of Chapter IX of Code – Provision of this enactment provides remedies beneficial to Muslim women divorcee by making former husband liable to provide divorced woman with reasonable and fair provision in addition to providing maintenance and where husband fails to comply with the order without sufficient cause, Magistrate may issue warrant for levying amount of maintenance and may sentence him to imprisonment for a term which may extend to one year – Near relatives of woman are also made liable under Section 4 of the Act – In case, relatives are not in a position to pay her, State Wakf Board is also made liable to provide maintenance – While Criminal Procedure Code provides relief of maintenance only, Act of 1986 furnishes to divorced woman, additionally, ‘a reasonable and fair provision’, relief of recovery of dower and return of marital gifts – Act confers exclusive jurisdiction on Magistrate of First Class to entertain an application under the Act by a Muslim woman where she resides. (Paras 11, 12 and 14)

(B) Criminal Procedure Code, 1973 – Section 125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – Sections 3, 4 and 7 – Application for maintenance – Maintainability – Application under Section 3 of Act cannot be maintained before Family Court under Section 7(1) of Family Courts 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. – Non-obstante clause has to be understood fairly and reasonably – Non-obstante clause cannot be lightly assumed to bring in effect of supersession – It should not be allowed to demolish or extinguish existing right unless legislative intention is clear, manifest and unambiguous – Under Section 7(2)(b), jurisdiction must be specifically conferred and cannot be assumed or deemed to have been conferred – Provisions of Muslim Women’s Protection Act do not confer any jurisdiction on Family Court – Since Muslim Women’s Protection Act, 1986 does not refer to Family Court or does not say that application under Sections 3 and 4 can be filed before Family Court, Family Court cannot entertain application of divorced Muslim woman under Sections 3 and 4 of Muslim Women’s Protection Act, 1986. (Paras 15, 18, 20 and 23)

(C) Muslim Women (Protection of Rights on Divorce) Act, 1986 – Sections 3 and 4 – Criminal Procedure Code, 1973 – Section 125 – Application for maintenance – Family Court cannot convert petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of Act of 1986 – High Court rightly held that Family Court has no jurisdiction to entertain petition under Sections 3 and 4 of Act of 1986 and that Family Court cannot convert petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of Act of 1986 – Appeal dismissed. (Para 25)

Per Indira Banerjee, J. (Dissenting View)

(D) Muslim Women (Protection of Rights on Divorce) Act, 1986 – Sections 3, 4, 7 and 20 – Application for maintenance – Family Courts Act is a secular statute which applies to matters contemplated therein, irrespective of religion of litigating parties – Family Court, established under Section 3 of Family Courts Act, is clothed with 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 1986 Act for Muslim Women – Family Court, constituted for adjudication of family disputes, is quite different from regular Criminal and Civil Courts – Atmosphere in these Courts is much more informal and far less intimidating than atmosphere in regular Civil and Criminal Courts – These Courts are not bound by rules of evidence and rules of procedure – Family Courts have power to devise their own procedure for adjudication of family disputes – Section 20 of Family Courts Act, with its non-obstante clause gives provisions of Family Courts Act overriding effect, over any other law, which would include 1986 Act for Muslim Women. (Paras 7, 10, 11 and 24)

(E) Criminal Procedure Code, 1973 – Section 125 – Application for maintenance – Section 125 of Cr.P.C. is a beneficial piece of legislation, specially enacted as a measure of social justice, 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 – Section provides a simple speedy remedy 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 order of maintenance from a Magistrate – Proceedings under Section 125 of Cr.P.C. are of a civil nature – 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 penal provisions of Cr.P.C. (Paras 35 and 36)

(F) Muslim Women (Protection of Rights on Divorce) Act, 1986 – Sections 3 and 4 – Criminal Procedure Code, 1973 – Section 125 – Application for maintenance – A divorced Muslim woman would be entitled to maintenance in accordance with Section 3(1) of 1986 Act for Muslim Women, notwithstanding anything contained in any other law in force, including Sections 125 to 128 of Cr.P.C. – 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 1986 Act for Muslim Women – Divorce by ‘Triple Talaq’ is no longer valid, after enactment of Muslim Women (Protection of Rights on Marriage) Act, 2019 – A rigid, constricted reading of 1986 Act for Muslim Women, to denude Family Courts constituted under Family Courts Act of jurisdiction to decide an application thereunder, is impermissible in law – 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 to marriage, divorce etc. are decided by Family Courts, as also claims of Muslim wives to maintenance under Section 125 of Cr.P.C. – There could be no reason to single out divorced Muslim wives to deny them access to Family Courts and that was never legislative intent of 1986 Act for Muslim Women. (Paras 42, 46, 47 and 48)

(G) Muslim Women (Protection of Rights on Divorce) Act, 1986 – Sections 3 and 4 – Criminal Procedure Code, 1973 – Section 125 – Application for maintenance – A divorced Muslim woman cannot claim maintenance under Section 125 of Cr.P.C. from her husband after enactment of 1986 Act for Muslim Women – However, under Section 3 read with Section 4 of 1986 Act for Muslim Women, a divorced Muslim woman is entitled to order of maintenance, if she is unable to maintain herself after Iddat period and has not remarried – Family Court would have jurisdiction under Section 7 of Family Courts Act to entertain application under Section 3 and 4 of 1986 Act for Muslim Women, since Court of Magistrate dealing with such application is to be deemed to be a Civil Court subordinate to District Court – Family Court had jurisdiction to convert application of Appellant under Section 125 of Cr.P.C into an application under Section 3 of 1986 Act for Muslim Women and to decide the same – Judgment and order under appeal set aside – Appeal allowed. (Paras 56, 64, 70, 79 and 80)

(H) Interpretation of Statute – Rules of Construction – 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, courts should avoid creating a ‘casus omissus’ where there is none – In discharging its interpretative function, court can even correct obvious drafting errors – In an appropriate case, court will add words, or omit words or substitute words – But before interpreting a statute in this way Court must be abundantly sure of three matters: (1) intended purpose of statute or provision in question, (2) that by inadvertence draftsman and Parliament failed to give effect to that purpose in provision in question; and (3) substance of provision Parliament would have made, although not necessarily precise words Parliament would have used, had error in the Bill been noticed. (Paras 72 and 75)

Facts of the case:

Present 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. 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.

Result : Matter Referred to Larger Bench.