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IN THE HIGH COURT OF BOMBAY
Bhattacharjee A.M., C.J. Tipnis V.P., J.
Allabuksh Karim Shaikh.... Applicant.
Versus
Noorjahan Allabuksh Shaikh another.... Respondents.
Family Court Appeal No. 92 of 1992, decided on 22-6-1994.
Advocates appeared :
R.S. Apte, for appellant.
MAINTENANCE - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - SECTION 3(1)(B) - APPLICABILITY - MAINTENANCE OF MINOR CHILD - FAMILY COURTS ACT, 1984 - SECTION 8(C) - TRANSFER OF PROCEEDINGS - SECTION 19 - REVISION JURISDICTION OF HIGH COURT - CODE OF CRIMINAL PROCEDURE, 1973 - CHAPTER IX - APPLICABILITY TO MUSLIM DIVORCED WOMEN - SECTION 125 - MAINTENANCE OF WIFE AND CHILDREN - SECTION 127 - MAINTENANCE OF DEPENDANTS - MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 - SECTION 2 - APPLICATION OF MUSLIM PERSONAL LAW TO MUSLIMS - CONSTITUTION OF INDIA - ARTICLE 14 - EQUALITY BEFORE LAW - ARTICLE 15 - PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION, RACE, CASTE, SEX OR PLACE OF BIRTH - ARTICLE 44 - UNIFORM CIVIL CODE - INTERPRETATION OF STATUTES - PURPOSE AND OBJECT OF STATUTE - SOCIAL WELFARE LEGISLATION - APPLICATION TO ALL PERSONS IRRESPECTIVE OF RELIGION.
Fact of the Case:
A divorced Muslim wife and her minor daughter filed an application under section 125 of the Code of Criminal Procedure (CrPC) for maintenance against their husband and father. The application was dismissed with respect to the wife's claim but allowed for the daughter's claim. The husband appealed, arguing that no such application, even by a daughter, is maintainable in view of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Muslim Women Act).
Finding of the Court:
The court held that the Muslim Women Act does not apply to applications for maintenance by children or other persons specified in section 125 of the CrPC. The Act only applies to applications by divorced Muslim women under section 125 or section 127 of the CrPC that were pending before a Magistrate on the commencement of the Act. The court also held that the Family Court has jurisdiction to entertain applications for maintenance under Chapter IX of the CrPC, even by divorced Muslim women, and that the Muslim Women Act does not apply to such applications.
Issues: 1. Whether the Muslim Women Act applies to applications for maintenance by children or other persons specified in section 125 of the CrPC? 2. Whether the Family Court has jurisdiction to entertain applications for maintenance under Chapter IX of the CrPC, even by divorced Muslim women? 3. Whether the Muslim Women Act applies to such applications?
Ratio Decidendi: 1. The Muslim Women Act only applies to applications by divorced Muslim women under section 125 or section 127 of the CrPC that were pending before a Magistrate on the commencement of the Act. It does not apply to applications by children or other persons specified in section 125 of the CrPC. 2. The Family Court has jurisdiction to entertain applications for maintenance under Chapter IX of the CrPC, even by divorced Muslim women, under section 7(2) of the Family Courts Act, 1984. 3. The Muslim Women Act does not apply to applications for maintenance under Chapter IX of the CrPC that are made to the Family Court.
Final Decision: The court dismissed the appeal, treated as a revisional application, with costs and confirmed the order of maintenance made by the Family Court in respect of the minor daughter.
2. Under section 19 of the Family Courts Act, 1984 as it stood before the Family Courts (Amendment) Act, 1991, an appeal could lie to this Court. But as a result of the amendment of 1991, no such appeal is any longer maintainable. The present appeal having been filed in 1992 after the commencement of the Family Courts (Amendment) 1991, it is obvious that the same cannot lie. Section 19(4) of the Family Courts Act, as amended as aforesaid, however, provides that the revisional jurisdiction of the High Court may nevertheless be invoked against an order passed by a Family Court under Chapter IX of the Code of Criminal Procedure which contains section 125. It is well settled that even in a case where an appeal does not lie under the law, the High Court may, in a fit case, treat the memorandum of appeal as an application for revision and proceed accordingly. In view of the importance of the question involved in this proceeding we propose to do so.
3. As already noted, the main ground urged by the father against whom the order of maintenance has been made by the Family Court in respect of his minor daughter, is that as result of the operation of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a minor child is entitled to be maintained only for period of two year form the date of its birth under the provisions of section 3(1)(b) of the aforesaid Act. We have given our serious consideration to this contention raised on behalf of the father by his learned Counsel, but we have not the slightest doubt that we must repel the contention for the reasons stated hereunder.
4. A perusal of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, (hereinafter referred to as “the Muslim Women Act”) will leave no manner of doubt that the Act shall operate only when a “divorced woman”, as defined in that Act, applies for maintenance against the former husband and can have no manner of application where the application for maintenance has been made by a child or by any other person specified in section 125 of the Code of Criminal Procedure. The Long Title of the Muslim Women Act is “to protect the right of Muslim women who have been divorced by or have obtained divorce from their husband and to provide for matters connected therewith or incidental thereto”. The Long Title therefore makes it abundantly clear that the Muslim Women Act professes to deal with Muslim divorced women and their rights against their former husbands and does not purport to cover the cases of claim for maintenance by the children of the marriage. The right of maintenance which a child has under the law is an independent right of the child and cannot obviously be squeezed in within the expression “matter connected therewith or incidental thereto” as used in the Long Title. Section 3 of the Muslim Women Act also makes it clear that the Act is solely concerned with the entitlement of the divorced women, the relevant expression in section 3(1) being “a divorced woman shall be entitled to”. It is true that sec
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