IMPORTANT POINT
Intention of Section 3 of MW Act, 1986, only to prescribe what payments must necessarily be made at time of divorce to entitle a Muslim Divorced husband to claim absolution from liability for payment of maintenance under Section 125 Criminal Procedure Code.

R. Basant, J.—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 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 alongwith 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 OP 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 no jurisdiction to deal with the subject matter of the claim. The right to claim return of the gold ornaments and cash from the husband was preexisting even prior to the enactment of the M.W. Act in 1986. It is unnecessary to delve deeper into that undisputed question. It is agreed and conceded that even prior to the enactment of Section 3, the divorced muslim women like all other divorced women were entitled to claim return of such gold ornaments and cash illegally retained by their husbands. Principles of the law relating to trusts and analogous relationship would come into operation and even without resort to the personal law, under the general law the land also such right was always available with the muslim women also. The mention of Section 3 was only to prescribe what payments must necessarily be made at the time of divorce to entitle a Muslim divorced husband to claim absolution from the liability or payment of maintenance under Section125 Cr.P.C.

6. It will be advantageous straightaway 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:

(1) 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, 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 p