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The Supreme Court on 18th June gave a split verdict on the issue of whether a Family Court has the jurisdiction to entertain a maintenance petition under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The bench comprising of Justices R Banumathi and Indira Banerjee was hearing an appeal against the judgment of Rajasthan High Court that had set aside an order passed by a Family Court which converted the application for maintenance under Section 125 Cr.P.C. into Section 3 of the Muslim Women (Protection of Rights on Divorce) Act. While Justice R Banumathi opined that the Family Court has no jurisdiction, however, Justice Indira Banerjee was in favor that the Family Court has jurisdiction over the matter. Therefore, a larger bench will be constituted to decide the issue.

Justice Banumathi stated that maintenance petition can be moved only before the First Class Magistrate while referring to the provisions of the Family Courts Act, and the Muslim Women’s Protection Act and stated that the latter does not refer to the Family Court or does not say that an application under Section 3 and 4 can be filed before the Family Court. The judge also noted that an application under Section 3(2) of the Muslim Women’s Protection Act can be moved only before the First-Class Magistrate having jurisdiction in the area under the Criminal Procedure Code.

“The application under Section 3(2) of the Act of 1986 by the divorced wife has to be filed before the competent Magistrate having jurisdiction if she claims maintenance beyond the iddat period. Even if the Family Court has been established in that area, the Family Court not having been conferred the jurisdiction under Section 7 of the Family Courts Act, 1984 to entertain an application filed under Section 3 of the Muslim Women Protection Act, the Family Court shall have no jurisdiction to entertain an application under Section 3(2) of the Act of 1986. The Family Court, therefore, cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. In my view, the High Court rightly held that the Family Court did not have jurisdiction to entertain the petition under Sections 3 and 4 of the 1986 Act and that the Family Court could not convert the petition for maintenance under Section 125 Cr. P.C. To one pursuant to Section 3 or Section 4 of the 1986 Act. I find no ground for interference with the contested order” observed Justice Banumathi.

On the other hand, Justice Banerjee opined that a rigid, constricted reading of the 1986 Act for Muslim Women, to denude the Family Courts constituted under the Family Courts Act of jurisdiction to decide an application thereunder is impermissible in law. He stated that “A literal and a rigid interpretation of the expression “Subordinate Civil Court” to single out divorced Muslim Women seeking maintenance from their husbands, access to Family Courts when all other women whether divorced or not and even Muslim Women not divorced can approach Family Courts would be violative of Article 14 of the Constitution.”

“In my view, a Family Court having jurisdiction is to be deemed to be the Court of a Magistrate, to decide the claim of a divorced Muslim Woman to maintenance, on a harmonious conjoint reading and construction of Sections 7 and 8 of the Family Courts Act with Sections 3(2), 3(3), 4(1), 4(2), 5 and 7 of the 1986 Act for Muslim Women, in the light of the overriding provision of Section 20 of the Family Courts Act. This Court has only given a purposive interpretation to the expression Subordinate Civil Court in Section 7 of the Family Courts Act to include the Court of a Magistrate empowered to entertain proceedings for maintenance under the 1986 Act for Muslim Women, which are in essence and substance, civil proceedings,” further observed Justice Banerjee.


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