BASANT, J.

1. Is the jurisdiction of the civil court (and consequently the Family Court) ousted by the enactment of Muslim Women (Protection of Rights on Divorce) Act (hereinafter referred to as ‘the M.W.Act’)?

This is the question that arises for consideration before us in this appeal.

2. We shall briefly refer to the factual matrix before we advert to the question of law. The claimant is the divorced wife of the respondent. After divorce, she preferred O.P.No.815 of 2007 claiming return of 80 sovereigns of gold ornaments worth Rs.5.6 lakhs and an amount of Rs.8.7 lakhs which according to her were allegedly being retained by her divorced husband illegally. In these circumstances, she claimed return of the gold ornaments/cash by her husband and preferred the claim before the Family Court.

3. The claim was resisted. Inter alia, it was contended that the Family Court has no jurisdictional competence to entertain the petition. It was contended that such a claim by the divorced wife was maintainable only before the learned Magistrate having jurisdiction under Section 3 of the M.W Act. It was prayed, in these circumstances, that the original petition may be dismissed as not maintainable.

4. The Family Court considered the original petition along with a claim under Section 125 Cr.P.C preferred by the appellant claiming maintenance for two children born in the wedlock. By a common order, the maintenance claim was allowed in part, whereas the O.P was dismissed holding that the Family Court has no jurisdictional competence to deal with the matter. The O.P was dismissed with cost.

5. Before us the learned counsel for the appellant/divorced wife and the respondent/divorced husband have advanced their arguments. The learned counsel for the appellant contends that the civil court retains the jurisdiction under Section 9 of the Code of Civil Procedure to deal with a claim by the divorced wife for return of ornaments/cash retained by her husband even after the divorce. The learned counsel for the respondent/divorced husband on the contrary supports the conclusion of the Family Court and submits that the Family Court has not jurisdiction to deal with the subject matter of the claim.

6. It will be advantageous straight away to extract the provisions of Section 3 of the M.W Act. We extract the same below:

“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.

(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 the 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 subsection (1) 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.

(3) Where an application has been made under sub-section (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