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2006 Supreme(Bom) 477
IN THE HIGH COURT OF BOMBAY
(D.D. Sinha, J.)
AMIRSHAH s/o KADIRSHAH and others - Applicants.
V.
SALIMABI w/o AMIRSHA - Non - applicant
Advocates appeared
For applicants : C. S. Kaptan
Headnote:Muslim Woman (Protection of Rights on Divorce) Act, 1986 - Section 3 - Civil Procedure Code, 1908, Section 9 - Jurisdiction of Civil Courts - Muslim divorced wife - Filed suit in civil Court for return of Dahej articles - Jurisdiction of Civil Courts either expressly or impliedly not barred by virtue of Section 3 of Act - Both remedies available to Muslim divorced woman - Civil suit maintainable. - If a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court’s jurisdiction, then both the common law and statutory remedies are available to the concerned person and it is for such person to select the remedy available. In such situation, both the remedies are available to the Muslim Divorced Woman, one under the provisions of Section 3 of the Act of 1986 and other for approaching the Civil Court. It is for such woman to select/elect the remedy, which she wants to undertake. Section 9 of the Code of Civil Procedure contemplates that the Civil Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. It is, therefore, evident that Civil Court is competent to try all suits of civil nature and has jurisdiction to try these suits unless jurisdiction of the Civil Court is either expressly or impliedly barred. So far as provisions of Section 3 of the Act of 1986 are concerned, Court have already observed that the language of the said section does not convey that jurisdiction of the Civil Court is either expressly or impliedly barred.
Civil Procedure Code, 1908 - Section 9 and Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 Jurisdiction Suit for return of articles of dahej A divorced muslim woman is entitled to make an application for recovery of dahej articles or mahr under Section 3 of the Act of 1986 Provisions of Section 3 neither expressly nor impliedly oust the jurisdiction of the Civil Court Both the remedies are available to the concerned person and it is for such person to select the remedy available. Perusal of the provisions clearly demonstrate that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to make an application for recovery of dahej articles or mahr, etc. under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The provisions of Section 3 neither expressly nor impliedly oust the jurisdiction of the Civil Court. The remedy under Section 3 of the Act of 1986 is undoubtedly in addition to other remedies available to the Muslim divorced woman for recovery of dahej articles or mahr. If a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court’s jurisdiction, then both the common law and statutory remedies are available to the concerned person and it is for such person to select the remedy available. In the instant case, non-applicant has a pre-existing right under the provisions of the Act of 1986 and the said Act also provides remedy for its enforcement with out expressly excluding jurisdiction of the Civil Court. In such situation, both the remedies are available to the Muslim divorced woman one under the provisions of Section 3 of the Act of 1986 and other for approaching the Civil Court. It is for such woman to select/elect the remedy, which she w ants to undertake.
2. The civil revision application is directed against the order dated 1 - 121999 passed by the Civil Judge, Senior Division, Daryapur whereby application filed by the applicants under section 9 of Code of Civil Procedure for dismissal of the suit for want of jurisdiction came to be dismissed.
3. Shri Kaptan, learned Counsel for the applicants, submitted that applicant No.1 was married to non - applicant. However, marriage was dissolved by divorce on 17 - 8 - 1998. The non - applicant filed Regular Civil Suit No. 36/1998 for return of articles of Dahej. The applicants filed an application under section 9 of Code of Civil Procedure for dismissal of the suit for want of jurisdiction of the Civil Court in view of provisions of section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial Court dismissed the said application vide impugned order dated 1 - 12 - 1999. Hence, the present civil revision application.
4. It was contended by learned Counsel Shri Kaptan that sub - section (2) of section 3 of the Act of 1986 contemplates that a Muslim divorced woman shall be entitled to make an application before the Magistrate for recovery of property given to her before or at the time of marriage or after her marriage by her relatives or friends or husband or any relatives of husband or his friends and the Magistrate is required to make an order within one month from the date of filing of such application and is also entitled to issue directions to former husband to pay such reasonable and fair amount as well as for payment of such mahr or dower or delivery of such properties referred to in clause (d) of sub - section (1) of section 3. It was contended that under sub - section (4) of section 3, the Magistrate is also vested with power, if the concerned person fails to comply with the directions issued by the Magistrate for want of sufficient cause, to sentence such person for whole or part of any amount remaining unpaid after execution of the warrant, to imprisonment for a term, which may extend to one year or till payment, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.
5. Learned Counsel Shri Kaptan further submitted that in view of complete procedure prescribed for recovery of dahej articles, etc. under section 3 of the Act of 1986, by necessary implication, jurisdiction of the Civil Court is barred and, therefore, application of the applicants under section 9 of the Code of Civil Procedure ought to have been allowed by the trial Court and the suit filed by the non - applicant ought to have been dismissed. In order to substantiate his contentions, reliance is placed by the learned Counsel for the applicants on the decision of the Apex Court in N. D. M. C. V. Satish Chand (deceased) by L. R. Ram Chand, AIR 2003 SC 3187.
6. I have given anxious thought to the contentions canvassed by the learned Counsel for the applicants and perused the provisions of section 3 of the Act of 1986, section 9 of Code of Civil Procedure as well as decision of the Apex Court relied upon and cited by learned Counsel for the applicant. Before I consider the issue on merits, it will be appropriate to consider the relevant provisions of section 3 of the Act of 1986, which read thus:
"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)…………
(b)…………..
(c)……………
(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
