The jurisdiction of Family Courts to entertain maintenance applications under the Muslim Women Act remains contentious, leading to division in judicial opinion, requiring a review by a larger bench.

JUDGMENT

R. Banumathi, J.

This 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.

2. Brief facts of the case which led to the filing of this appeal are that the marriage between appellant No.1-Rana Nahid @ Reshma @ Sana and respondent Sahidul Haq Chisti was solemnized on 08-03-1998 as per the Muslim rites and appellant No.2-son was born out of the wedlock. Alleging that appellant No.1 was subjected to cruelty and harassment for additional dowry and that she was thrown out of matrimonial home, appellants filed a petition under Section 125 Cr.P.C against the respondent. Thereafter, on 24-03- 2008, appellant No.1 amended the petition on the basis of divorce given on 23-04-2008 by the respondent-Sahidul. The appellants averred that the respondent is working as a lecturer in Rajkiya Moiniya Senior Secondary School, Ajmer and has been earning a sum of Rs.20,000/- per month approximately and he also serves in “Mehmani ki Dargah” from where he earns Rs.20,000/- per month and thus claimed a maintenance of Rs.6,000/- per month towards her maintenance and Rs.2,500/- per month towards maintenance of her son-appellant No.2 herein. The respondent has admitted that he is a lecturer in Govt. Job and receives a salary of Rs.18,500/- per month.

3. The Family Court held that as the appellant No.1 is a Muslim divorced woman, her petition for maintenance under Section 125 Cr.P.C. is not maintainable. The Family Court treated the said application under Section 125 Cr.P.C. as application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act , 1986 (Muslim Women’s Protection Act) in the light of the judgment of this Court in Iqbal Bano v. State of Uttar Pradesh & Anr. (2007 (3) KLT 63 (SC) = (2007) 6 SCC 785). The Family Court ordered respondent-Sahidul Haq to pay rupees three lakh in lump sum to appellant No.1 towards her maintenance and future livelihood. The application of appellant No.2 claiming maintenance has been accepted under Section 125 Cr.P.C. and the respondent has been ordered to pay Rs. 2,000/- per month towards his maintenance till he attains majority.

4. Being aggrieved by the quantum of maintenance, the appellants filed Revision Petition No. 295 of 2009 before the High Court of Rajasthan at Jaipur for enhancement of maintenance. The respondent also filed Revision Petition No.221 of 2009 against the order of the Family Court. While the matter was pending before the High Court, a sum of Rs.1,00,000/- was paid by the respondent to appellant No.1. The High Court held that the application under Section 125 Cr.P.C. was made before the Family Court which does not have jurisdiction to entertain an application under Section 3 of the Muslim Women’s Protection Act. The High Court held that the order of the Family Court converting the application under Section 125 Cr.P.C. into an application under of the Act is without jurisdiction and on those findings, set aside the order of the Family Court to that extent and allowed the revision preferred by the respondent. However,