This article has been written by Ashutosh Singh, a student of BA.LLB(H) at Amity Law School, Amity University, Kolkata. The article is an attempt to analyse the case and give a detailed insight on the issue of maintenance at length.
The case, Rana Nahid and another vs. Sahidul Haq Chisti revolves around the maintenance of a divorced Muslim wife who petitioned under Section 125 of The Code of Criminal Procedure (CrPC) The question before the court, in this case, was that if the family court has jurisdiction to try the application for maintenance by a divorced Muslim wife under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Maintenance law applied to women irrespective of their religion under Section 125 of CrPC before 1985. In 1985, the Supreme Court gave a landmark judgement in the case of Mohd. Ahmed Khan vs. Shah Bano Begum, favouring maintenance to a divorced Muslim woman under Section 125 CrPC. After this decision, the political situation in the country had gone bad. The ruling party to save its face, passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which rendered the Supreme Court’s judgment (Shah Bano Begum Case) valueless. The right of divorced Muslim women got restricted by this Act. Now, the divorced Muslim woman is eligible for maintenance only during the ‘Iddat’ period which extends to 90 days after the divorce. The Rana Nahid case is still pending because of the difference in opinions of the bench.
Facts of the Case
- The marriage between Rana Nahid and Sahidul Haq Chisti was solemnized as per the Muslim marriage rituals. A child was born out of wedlock.
- Rana Nahid (wife) alleged that she was harassed for dowry, subjected to cruelty, and was thrown out of her matrimonial home. A petition was then filed by her under Section 125 of CrPC against her husband Sahidul Haq Chisti in the family court.
- The wife/appellant no.1, claimed maintenance of Rs 6,000/- per month for herself and Rs 2,500/- per month as maintenance for her son as she claimed that her husband was a lecturer in a school from where he earned Rs 20,000 as salary, and he also served in a Darga where he earned Rs 20,000 per month.
- The family court didn’t allow the maintenance to the wife under Section 125 of CrPC as the appellant was a divorced Muslim wife. As far as the child is considered, he was granted maintenance under Section 125 of CrPC, and the father was ordered to pay a sum of Rs 2,000/- per month for the child until he attains majority.
- The family court, however, treated the petition under Section of 125 of CrPC as a petition under Muslim Women’s Protection Act, 1986. The judgment in Iqbal Bano vs. State of Uttar Pradesh was taken as reference.
- The Family Court instructed Sahidul Haq Chisti (the husband) to pay a sum of Rs. 3,00,000/- in a lump sum to appellant 1 for her maintenance and future livelihood as per Section 3 of the Muslim Women’s Protection Act, 1986.
- Appellant no. 1 was not satisfied by the quantum of maintenance granted to her by the Family Court and so she had filed a revision petition before the High Court of Rajasthan for an increase in the maintenance amount.
- A revised petition was also filed by the respondent (husband) Sahidul Haq Chisti against the Family Court’s order.
- As per the Family Court’s order, before the appeal an amount of Rs. 1,00,000/- was paid by the respondent to his wife for the matter was pending before the High Court.
- The Rajasthan High Court set aside the order of the Family Court stating that the Family Court did not have the authority/jurisdiction to convert the application under Section 125 CrPC. into an application under Section 3 of the Muslim Women’s Protection Act, 1986.
- For maintenance under Section 3 of the Muslim Women’s Protection Act, 1986, can the family court have jurisdiction to try an application filed by a divorced Muslim woman?
- Whether Section 125 of the Criminal Procedure Code can override Section 3 of the Muslim Women’s Protection Act, 1986 (personal law)?
The honourable bench comprising R. Banumathi, J. and Indira Banerjee, J. gave a split verdict on the issue of the Family Court’s decision to convert the petition filed under Section 125 of CrPC for maintenance to Section 3/Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. R. Banumathi, J. opined that the Family Court cannot change an application for maintenance under Section 125 of CrPC into Section3/Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 since it doesn’t have jurisdiction to do so. Submitting this she dismissed the appeal.
Indira Banerjee, J. allowed the appeal as she was of the view that the Family Court had the jurisdiction to convert the petition for maintenance of the Appellant no. 1 under Section 125 of CrPC into a petition under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Analysis of the Judgement
Reasoning by R. Banumathi, J.
This case had 2 different verdicts because the two-judge bench disagreed with each other. R. Banumathi, J. was quite rigid in her outlook that if a divorced Muslim woman files a petition under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 then the Family Court cannot try the case as it lacks the jurisdiction to do so. But Indira Banerjee, J. taking a more lenient and wider outlook, opined that the Family Court should be accessible to even a divorced Muslim woman seeking maintenance. Because of the split verdict in the case, the case will now be heard by a larger bench. Both of the members of the 2-judge bench justified their decision based on ample decided cases and the prevailing law in the matter.
‘Maintenance’ is an amount that a husband is required to pay under the relevant law to his wife who is neither equipped nor has the means to maintain herself, either during the existence of the marriage or upon separation, or divorce. The laws for Muslim women regarding this in our country are:
- Special Marriage Act, 1954
- Muslim Women (Protection of Rights on Divorce) Act, 1986
- Criminal Procedure Code, 1973
Section 125(1)(b) of CrPC, 1973, defines the term “Wife”. As per this section, the wife is a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried. Bhanumati, J based her judgement on the following:
- The counsel for the appellants put forth the view that the Family Court has jurisdiction under Section 3 of the Muslim Women’s Protection Act, 1986 to decide cases and that the High Court was not right in setting aside the case directing the appellant no. 1 to file a case under Section 3 of the Muslim Women’s Protection Act, 1986.
- The counsel for the respondent claimed that under Section 125 of CrPC, the appellant cannot apply for maintenance unless both the parties, that is the husband and wife agree upon being governed by Section 125 of CrPC as mentioned in Section 5 of the Muslim Women’s Protection Act.
- She said that for the proper understanding of the contentions, one must refer to the provisions of the Act and the reasons for the enactments coming into place.
So, Muslim woman’s entitlement to maintenance under CrPC was considered which is as follows:
- Under Section 125 CrPC a divorced Muslim woman has the right to claim maintenance even beyond the iddat period.
- After the Iddat period is over, then if the divorced woman can maintain herself, then the husband’s liability to maintain her stops. He is under no liability to maintain her thereafter.
- However, if the divorced Muslim woman is unable to maintain herself at the end of the Iddat period, then she can seek remedy under that section.
- In case there is a conflict between Section 125 of CrPC and the Muslim Women (Protection of Rights on Divorce) Act, 1986, then Section 125 makes the personal law ineffective by overruling it as seen in the case of Mohd. Ahmed Khan v. Shah Bano Begum case. In case a clash is to take place between any Personal Law and the CrPC, then the CrPC will reign. This position was seconded by the SC in the case of Saira Bano vs. A. M. Abdul Gafoor.
- In Shabana Bano v. Imran Khan case, the Supreme Court quashed the order of the Family Court saying that under Section 125 of CrPC, even if the Muslim wife had been divorced during the Iddat period and her application for maintenance was pending, she would still be entitled to claim maintenance from her husband.
- Section 7(2)(a) of the Family Courts Act, 1984, bestows jurisdiction upon the Family Court until now and it is exercisable by a First Class Magistrate under Chapter IX ( deals with provision for maintenance of children, wife, and parents) of the CrPC, 1973.
Speaking about Muslim Women (Protection of Rights on Divorce) Act, 1986, Banumathi, J. said that it does not swerve from the rationale, object, and scope of the provisions of maintenance under CrPC. The provisions of the Act are not incongruous with the provisions of Chapter IX of the Criminal Code. The provision of this enactment provides:
- Remedies which are beneficial to the divorced Muslim woman is to make her previous husband liable to provide the divorced wife with a reasonable and fair provision in addition to providing maintenance, and ‘Mahr’ on or before the completion of the Iddat period. If the Muslim woman claims maintenance after the expiration of the Iddat period, then the petition by the divorced Muslim wife must be filed before the competent Magistrate having the authority under Section 3(2) of the Act of 1986.
- This maintenance extends to her whole life and it is not limited only for the Iddat period unless she remarries. The husband is supposed to provide this reasonable and fair amount in addition to the maintenance to meet the future needs of his ex-wife. Also, the SC said that Articles 14, 15 and 21 of the Constitution of India as seen in the case of Danial Latifi vs. Union of India are not offended or infringed by the provisions of the Muslim Women (Protection of Rights on Divorce Act, 1986).
- Where the husband doesn’t comply with the order unless he has sufficient reason not to, the Magistrate may issue a warrant for imposing the amount of maintenance. The husband may even be sentenced to imprisonment for a term which may be up to one year.
- The immediate relatives of the divorced woman are also made liable under Section 4 of the Act if they have the means and yet don’t look after her.
- The state Wakf Board can also grant maintenance to a divorced Muslim woman directly under Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, if she is not equipped for maintaining herself after the Iddat period. (T.N. Wakf Board vs. Syed Fatima Nachi)
- The Act confers exclusive jurisdiction on the Magistrate of the First Class to entertain an application under the Act by a Muslim woman where she resides.
- Remedies beneficial to the divorced Muslim woman by making her previous husband liable to provide the divorced woman with a reasonable and fair provision in addition to providing maintenance, and ‘Mahr’ on or before the expiration of the Iddat period. If the Muslim woman claims maintenance after the expiration of the Iddat period, then the petition by the divorced Muslim wife must be filed before the competent Magistrate having the authority under Section 3(2) of the Act of 1986.
- As per Section 7 of the Act, an application by a divorced woman under Section 125 and Section 127 of CrPC pending before a subject to the provisions of Section 5 of the Act, shall be disposed of by a Magistrate of the First Class exercising jurisdiction in accordance with the Act, making the legal provision clear.
- The rights of the divorced Muslim women are acknowledged under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and it backs their opportunity for redressal under it and gives the procedure for the execution or the order in that regard. The section overrides all other provisions of the existing laws at that time with a non-obstante clause.
The Bombay High Court in the case of Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh and Ors. deliberated on the issue of the Family Court’s authority for a trial of an application for the maintenance of a divorced Muslim woman after the enactment of the Muslim Women Act, 1986. Banumathi J. pronounced that since the Family Court neither has any mention in the Muslim Women (Protection of Rights on Divorce) Act, 1986 nor brings up the possibility of a petition under Section 3 and Section 4 of the Act being filed in the Family Court, therefore, as per her opinion the Family Court didn’t have the jurisdiction to accept the said application.
The appellant 1 cited the judgment in Iqbal Bano case and tendered that in the said case, the Magistrate had altered the petition for maintenance under Section 125 of the Code of Criminal Procedure to the application under Section 3 of the Muslim Women’s Protection Act, 1986 and the same was upheld by the Supreme Court. Banumathi, J. explained that the facts of the present case are clearly different from the Iqbal Bano case. In Iqbal Bano case, the application under Section 125 of the Code of Criminal Procedure was made before the Magistrate who had jurisdiction to accept application under Section 3 of the Muslim Women’s Protection Act and thus, the Supreme Court upheld the order where the application under Section 125 of CrPC was converted to an application under Section 3 of the Muslim Women’s Protection Act, 1986.
The High Court, in her view, rightly held that the Family Court had no jurisdiction to entertain the petition under Sections 3 and 4 of the Muslim Women Act of 1986 and that the Family Court could not convert the petition for maintenance under Section 125 of the Code of Criminal Procedure to one under Section 3 or Section 4 of the Muslim Women’s Protection Act of 1986. Based on this reasoning Banumathi, J. said that she did not find any cause that necessitates changing the impugned order. She, therefore, dismissed the appeal and said that the High Court had given a choice to appellant No. 1 to apply under Section 3 of the Muslim Women’s Protection Act, 1986 before the competent Magistrate.
Reasoning by Indira Banerjee, J.
Disagreeing with Justice Banumathi’s opinion, Banerjee, J. said that:
- All matters irrespective of the party’s religion shall be matters which the family court can address as the Family Court Act, 1984 is an unbiased secular statute.
- Despite Section 10(1) and Section 10(2) of The Family Courts Act, 1984, which makes it possible to apply the Code of Civil Procedure to suits and proceedings before the Family Court except those which fall under Chapter IX of the Code of the Criminal Procedure, 1973, also make the provisions of the Code of the Criminal Procedure applicable to the proceedings under Chapter IX, giving liberty to the family court to have its procedure so that a settlement can be arrived at on the subject matter of the suit or proceeding.
- With respect to the jurisdiction of the family courts, as per Section 7(1a), in whichever area they have been established, any suit or proceedings of nature referred to in the explanation of the subsection, exercise any jurisdiction in respect of any suit/proceedings as per Section 8 of the Family Courts Act, 1984. Section 7 and Section 8 of the Family Courts Act, 1984 read together only clothe the Family Court with the jurisdiction of the First-Class Magistrate in matters of proceedings for maintenance under Chapter IX of the Cr.P.C.
- Section 20 of the Family Court Act, 1984 has a non-obstante clause which gives it an overriding effect over other laws which includes the 1986 Act for Muslim women. So, the family court would now affect other laws until it is in force or has another instrument of law that affects any other law besides that of the Family Court Act. The meaning of the term “in any other law, for the time being in force,” is that the instrument of law would affect another law other than the Family Court Act, 1984.
- There is no clash between the Family Court Act, 1984, and Section 3(2) of the 1986 Act for Muslim women. It is important to note that an overriding effect is given by Section 20 of the Family Court Act, 1984 and the court exercises all the powers which are exercised by the district and subordinate court for maintenance proceedings.
- Banerjee, J. further said that Article 2 of CEDAW urges all State Parties to conform to the practice of a woman-friendly legal system, policies, and practices. The Muslim Women (Protection of Rights on Divorce) Act, 1986 is a law that came in place after CEDAW (The Convention on the Elimination of All Forms of Discrimination against Women 1979) land so the Court is obliged to interpret the provisions of the said Act substantively, liberally, and purposefully to benefit women of the Muslim community.”
- Corresponding to the right to equality under Article 14, it was seen that Muslim personal laws which is represented by the Shariat laws, are secured behind the right to religious freedom and hence insusceptible from a challenge on the ground of infringement of the fundamental right. Procedural laws would not, in any case, enjoy the same fate when challenged, which Muslim personal laws get. Equal protection of the laws and equality before the law envisioned in Article 14 of the Constitution of India applies both substantive and procedural laws equally as seen in the State of West Bengal v. Anwar Ali Sarkar.
- The court in the case of Iqbal Bano vs. State of UP and Another, said that only divorced Muslim Women can seek redressal under the Muslim Women (Protection of Rights on Divorce) Act, 1986 and it does not apply to women who are not divorced. The proceedings in this case under Section 125 of the Cr.P.C. were therefore civil in nature.
- Also, it was open to the court when noticed that there was a divorced Muslim woman who applied for maintenance under Section 125 of Cr.P.C to accept the same as a petition under the Muslim Women (Protection of Rights on Divorce) Act, 1986, because of the favourable nature of the legislation. Despite divorced Muslim women being excluded from the purview of Section 125 of the Cr.PC by the 1986 Act for Muslim Women, the Parliament still deemed fit to make provisions for speedy orders in applications for maintenance filed by divorced Muslim women. This is the motive behind the Muslim women being given the choice of turning to the Magistrate who is then within 1 month from the date of filing of the application required to make an order executable in the same manner for imposing fines under the Cr.PC.
She explained the position of the court by raising a question whether Sections 3(2), 3(3), 3(4), 4(c), 4(2) and 7 thereof read with the definition of “Magistrate” in Section 2(c) in the 1986 Act for Muslim Women, restricts the jurisdiction of the Family Court to proceed/decide an application filed by a divorced Muslim Woman for maintenance. She elaborated that a rigid, constricted, and shrunken understanding of the 1986 Act for Muslim women, makes the Family Courts almost powerless which were established under the Family Courts Act, 1984 with the jurisdiction to decide an application thereby, is not what the law is there for.
Banerjee, J., hence concluded that Family Courts alone have jurisdiction on family and personal matters which include both men and women irrespective of which religion they belong to. The matters relating to Muslim women’s marriage, divorce, etc are to be decided by the family court and the Muslim women can claim maintenance under Section 125 of Cr.P.C as there is no cause to single them out and deny them access to family courts which was never the intention of the 1986 act for Muslim women in her view.
Given the ever-volatile scenario of the social, religious, cultural, and political situation in our country, it is a herculean task to bring about progressive legislative amendments without conflicting with the personal laws, especially the ones favouring Muslim women. It could also lead to finding similar lacunae in other secular legislations. As it stands, the fate of the Muslim women of our country cannot hang at the hands of the legislature which after the case of Rana Nahid went to a larger bench for hearing and it may or may not result in the correction of the lacunae in the law which it has showcased. The judiciary of this country has, however, tried to uphold the equality of women in this country and there are many instances of the same such as the Shabana Bano case, Danial Laitifi case, Shamim Bano case, etc to name a few. The case at hand involves procedural equality and has nothing to do with disputes pertaining to substantive equality. It is the right of every woman, which includes the Muslim women as well, to have equal access to a woman-friendly family court.
In my opinion, any understanding, construing or interpretation of the law that desists divorced Muslim women from equal access to Family Courts, unlike the women of other religions would be discriminating against them and also violating their rights under Article 14, 15 and Article 21 of the Indian Constitution, 1949 as well as the different international conventions, that India is a part of. The constitutional provisions we have may shield the personal laws of the different religious communities, however, this doesn’t mean that people belonging to them are also immune to uniform procedural law. Precedence should not be set on referring the cases to the Chief Justice of India on a regular basis. Now that the case has been referred to the Chief Justice of India, should he refer the case to a larger bench? Should the referral by the bench be made with deliberation, due care, and only in the “rarest of rare situations” and not mechanically? That being so, the need of the hour is an extensive and purposeful interpretation by the Apex Court. Given the situation, in this case, it is now upon the judiciary to use its wisdom of interpretation to do complete justice in cases like this or else there will be many Rana Nahids waiting for years to get justice and the very purpose of the law in this regard would have failed. Justice not given timely is no justice.
There have been numerous occasions when a 2-judge bench has disagreed giving a split verdict and referred the case to the Chief Justice of India (CJI), however, what makes this case different is the elaborate justification given by both the senior judges who are otherwise known for their insightful decision-making. The moot point for disagreement was on the basic issues of justice and jurisdiction. In my opinion, the judgements by the different courts on the question of jurisdiction of the Family Courts to entertain applications under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 have been divergent, differing and even controversial at times. The unembellished view taken by Banumathi, J. is in agreement with many High Court judgements, and on occasion, the apex court has also held that view. On the other hand, Indira Banerjee, J. viewed the Section 7(f) of the Family Court Act, 1984, as a complete answer to any argument which suggested that matters of maintenance are not within the Family Court’s jurisdiction since that clause explicitly refers to “any suit or proceeding for maintenance, which would include an application under Section 3 of the 1986 Act for Muslim Women.”
Now the case is being referred to a larger bench because of the split verdict and we don’t know which side the needle will swing in such a case where both the judges have presented views with enough support to back them up. This case will be a landmark case that may be the catalyst to bring forth the critical gaps and lacuna in the Family Courts Act, 1984, and its conflict with the Muslim Women (Protection of Rights on Divorce) Act, 1986 which if exposed shows the prejudiced views against the rights of equality of divorced Muslim women. Lastly, it has taken 9 years to hear a reappear of this case, and nowhere did the bench try to ensure a speedy redressal to the maintenance enhancement of appellant 2 and the maintenance to appellant 1.
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