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IN THE HIGH COURT OF BOMBAY
(FULL BENCH)
Ajit P. Shah, Smt. Ranjana Desai J.A. Patil, JJ.
Karim Abdul Rehman Shaikh..... Petitioner.
Versus
Shehnaz Karim Shaikh others..... Respondents.
Criminal Writ Petition No. 1296 of 1995 with Criminal Revision Application No. 150 of 1998, decided on 11-7-2000.
Advocates appeared :
A.N. Mulla, in Cri.W.P. No. 1296/95 for petitioner.
G.S. Hiranandani, in Cri.W.P. No. 1296/95 for respondent No. 1.
I.S. Thakur, in Cri.W.P. No. 1296/95 with Cri. Rev. App. No. 150/98 for State.
H.A. Solkar with M.H. Solkar, in Cri.W.P. No. 1296/95 for All India Milli Council.
Jametul Ulma (Maharashtra), in Cri.W.P. No. 1296/95 as intervener.
Y.H. Muchala with N.D. Bhatkar, B.P. Pandya M.S. Kadu, in Cri.W.P. No. 1296/95 for All India Muslim Personal Law Board as intervener.
A.R. Shaikh, in Cri. Rev. App. No. 150/98 for applicant.
P.B. Shaligram, in Cri. Rev. App. No. 150/98 for respondent No. 1.
Section 125 - See Muslim Women (Protection of Rights on Divorce) Act 2 of 1986), Section 3.
Section 125-See Family Court Act (66 of 1984) Section 7.
Sections 125 and 128-See Muslim Women (Protection of Rights on Divorce) Act 1986, Section 3
Sections 125 and 128-See Muslim Women (Protection of Rights on Divorce) Act (25 of 1986), Section 3.
Section 7 and Criminal Procedure Code (2 of 1974), Section 125 Applications under Section 125 filed by divorced Muslim women to be transferred to concerned Magistrates Court for disposal according to the Muslim Women Act.
Section 7 and Muslim Women (Protection of Rights on Divorce) Act, 1986, Sections 1, 3 and 4-Family Court has no jurisdiction to try applications of Muslim divorced women for maintenance on commencement of Muslim Women Act, 1986.
Sections 7, 8, and 20-Family matter to be decided in forum-Muslim women causes-Decision by Family Court-Muslim Woman Act would not be effected by Section 20, Family Court Act option by M.W. Act to divorces governed by Cr Pc.
Sections 7, 8 and 20-Family matters-Jurisdiction of Family Courts to deal matter under Muslim Women Act-Effect on provisions of Family Court Act-Muslim Woman Act not to be affected by Section 20 of Family Courts Act-Maintainability of application under Section 3 of Muslim Women Act-Grant of option to divorcees under control of Cr PC Application to Family Court not maintainable.-The Family Courts Act, 1984 was made applicable to the State of Maharashtra on 1st of December, 1986. The Preamble to the Act states that it is an Act to provide for the establishment of Family Courts with a view to promoting conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. Section 2(a) defines a "Judge" to be the Principal Judge, Additional Principal Judge or other Judge of a Family Court. Section 2(d) says that Family Court means a Family Court established under Section 3. Section 3 says that State Government after consultation with High Court and by notification shall as soon as may be after the commencement of the Family Courts Act, establish Family Courts.
Section 7 talks of jurisdiction. Section 7(1)(a) says that subject to the other provisions of the said Ad, a Family Court shall have jurisdiction exercisable by any District Court or subordinate Civil Court under any law for the time being in force in respect of the suits and proceedings of the nature referred to in the explanation. Section 7(1)(b) says that Family Court may be deemed for the purpose of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends, Explanation to this section contains the suits and proceedings which the Family Court is to deal with. All the proceedings set out in the said explanation pertain to disputes relating to n1arriage and family affairs. Section 7(2)(a) says that the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 shall be exercisable by a Fan1ily Court. Section 7(2)(b) says that the Family Court shall have such other jurisdiction as may be conferred on it by any other enactment.
Section 8 specifically excludes the jurisdiction of other courts in respect of matters which the Family Court has to deal under the Family Courts Act. Section 8(a) says that where a Family Court has been established, no District Court or Subordinate Civil Court referred to in Section 7(1) shall have any jurisdiction in respect of proceedings referred to in Explanation to subsection (1) of Section 7, Section. 8(b) says that no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code, Section 8(c) provides for transfer of such proceedings which are referred to in explanation to subsection (1) of Section 7 and every proceedings under Chapter IX of the Code which is pending before the establishment of the Family Court before any District Court or Subordinate Court or any proceedings referred to in that sub-section as the case may be before any Magistrate under the said Code and which would have been required to be instituted or taken before or by such Family Court, if before the date on which such suit or proceeding was instituted or taken, this Act has come into force and such Family Court had been established, to such Family Court on the date on which it is established. Section 20 gives overriding effect to the Family Courts Act, 1984, It says that the provisions of the Family courts Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force,
Undoubtedly the Family Court Act has set up a machinery to deal with disputes relating to marriage. The provisions of the Act and the Rules made there under also show that a separate procedure is also provided for conducting the proceedings before the Family Court. The proceedings under Chapter IX of the Code are also now assigned to the Family Court. Any pending matters -which are required to be attended to by the Family Court are transferred to Family Court the moment the Family Court is established and all these provisions have to have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
The Muslim Women Act was published in the gazette of India on 19th May, 1986. This Act, the provisions of which we have already quoted extensively is meant to protect the rights of Muslin1 women who have been divorced by, or have obtained divorce fron1 their husbands, and to provide for matters connected therewith or incidental thereto. This Act is a later enactn1ent. Obviously, therefore, the provisions of the Family Courts Act, 1984 will not have overriding effect on this Act because as per Section 20 of the Family Courts Act it can have overriding effect only in respect of anything inconsistent therewith contained in any other law for the time being in force. Admittedly, the Muslim Women Act was not in force when the Fan1ily Courts Act, 1984 \vas enacted. In Section 2(c) of the Muslim Women Act, Magistrate is defined to mean a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973 in the area where the divorced women resides. Application under Section 3 for reasonable and fair provision and maintenance has to be made before a Magistrate.
Section 9-Right of Divorcee Muslim Women-Right of maintenance-Iddat period-Right of maintenance not illegal during Iddat period-Future need can be revoked under Section 4 of Act-Applicability of Wakf Act not illegal.
Smt. RANJANA DESAI, J.:---In this reference we are called upon to decide certain issues, which are very vital to Muslim women. The learned Single Judge of this Court, Justice Bhairavia came to a conclusion that the decision of this Court in (Allabuksh Karim Shaikh v. Noorjahan Allabuksh Shaikh and another)1, 1994 Mh.L.J. 1376 is contrary to the object and spirit of the Muslim Women (Protection of Rights on Divorce) Act, 1986 ("Muslim Women Act" for short). The learned Single Judge was of the view that, and we quote his words: "in the interest of fair justice, this matter requires to be referred to Full Bench for decision." He has stated that having gone through the various authorities, he had noticed that the consistent view of the various courts after coming into force of the Muslim Women Act was that, the Muslim Woman is entitled to claim post iddat period maintenance under section 4 of the Muslim Women Act and not under section 125 of the Criminal Procedure Code ("the Code" for short). According to him he had his own doubts in accepting the ruling in Allabuksh's case (supra). The learned Judge has directed that the matter should be referred to Full Bench.
2.In our opinion, in view of Rule 7 of Chapter I of Part I of the Bombay High Court Appellate Side Rules, 1960, it was no open for the learned Single Judge to give any such direction. Rule 7 reads thus :
"7. If it shall appear to any Judge, either on the application of a party or reference otherwise, that an appeal or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice who shall make such order thereon as he shall think fit."
If the learned Single Judge was of the view that the matter could more advantageously be heard by a Bench of two or more judges, he should have made a report to that effect to the learned Chief Justice. The ultimate decision as to whether a larger Bench should be constituted or not would obviously lie with the learned Chief Justice. For ought we know, in a given case the learned Chief Justice may come to a conclusion that the matter does not require to be referred to a larger Bench and he may not constitute a larger Bench. Judicial propriety demands this procedure to be strictly followed. We also feel that rather than merely reproducing the arguments of the learned Counsel appearing for the petitioner, the learned Single Judge ought to have given reasons which prompted him to draw the conclusions which he has drawn. In any case since we have noticed conflict between the various decisions cited before us, we proceed to decide this reference.
3.The learned Single Judge has formulated the following question which in his opinion requires consideration.
"Is the Family Court empowered to entertain an application under section 125 of the Code filed by a divorced woman against the former husband for post - iddat period maintenance?"
4.In our opinion basically this Court will have to consider whether claim of maintenance by a divorced Muslim wife under the provisions of section 3 of the Muslim Women Act must be restricted only to the period of iddat or it has to be a fair and reasonable provision and maintenance even for a period subsequent thereto. This Court will also have to resolve the controversy about the scope and effect of the provisions of sections 125 to 128 of the Code after the commencement of the Muslim Women Act, keeping in view the provisions of the Family Courts Act, 1984. At the appropriate stage we shall formulate the questions which need to be answered by us. But before that we will refer to the judgments of this Court in which divergent views are discernible.
5.We will have to first refer to Allabuksh's case (supra). In that case, there was a challenge to the grant of maintenance to the daughter on the ground that the application was not maintainable under the provisions of the Muslim Women Act. Though the questions with which we are concerned here were not before the
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