Kerala High Court
Avaran Koya vs Mariyam on 15 December, 1992
Equivalent citations: 1993CRILJ1118, I(1994)DMC205
JUDGMENT Sreedharan, J.
Counter petitioner in M.C. 196/1991 on the file of the Judicial First Class Magistrate's Court, Nadapuram is the petitioner. That petition was filed by respondent herein invoking the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, hereinafter referred to as "the 1986 Act", claiming maintenance and a reasonable and fair provision under the Act. She filed that petition on the allegation that she is residing within the territorial jurisdiction of that Court. Petitioner herein, who was the former husband, disputed the competence of that Court to take cognizance of the petition on the ground that the divorced woman has no residence within its territorial limits. By Annexure-E order dated 19.10.1992, the learned Magistrate took the view that petitioner before him resides in her maternal house, which is situated within its territorial limits and hence competent to entertain the petition. That order is under challenge.
1. In the petition filed before this Court, the former husband took up an additional ground that after the establishment of the Family Court in Kozhikode, that Court alone has the jurisdiction to entertain and continue the petition filed by the divorced woman.
2. When this petition came up for admission, a learned Single Judge opined that in view of the importance of the question involved, the petition should be posted for admission before a Division Bench. Consequently, it has come up before us. We directed notice on this petition on the divorced woman by special messenger and the Director General of Prosecution. Both appeared and extensive arguments were heard.
3. The first question that arises for consideration is whether M.C. 196/1991 filed by the divorced woman before the Judicial First Class Magistrate, Nadapuram invoking the provisions of Section 3 of the 1986 Act is maintainable or not before that Court. As per that 1986 Act, Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973 in the area where the divorced woman resides has got jurisdiction to entertain the application under Section 3. Thus if the divorced woman resides within the territorial limits of the Judicial First Class Magistrate's Court, Nadapuram, then that Court is the Court to entertain the application filed by her under Section 3 of that Act. Annexure-A is the copy of the application put in by the divorced woman before the Judicial First Class Magistrate's Court, Nadapuram. In that, she had specifically averred that she is permanently residing with her relatives at Nadapuram. She gave that address, as a resident of Kunnoth in Kummangode Amsom, Nadapuram Desom. This averment regarding the place of residence of the divorced woman was disputed by her former husband on the basis of the address given by her in a Caveat Petition No. 6 of 1988, filed in the Munsiff's Court, Quilandy. In that Caveat Petition, she gave her address as Chittaripoyil in Kinaloor Amsom Desom in Quilandy Taluk. That is a house situated outside the territorial limits of the Judicial First Class Magistrate, Nadapuram and so the Nadapuram Court has no jurisdiction to entertain the petition filed under Section 3 of the 1986 Act.
4. Before the divorce actually effected between the parties, husband tried to initiate proceedings before the Civil Court for getting an order of injunction restraining the wife from entering into his house and property. To prevent an ex-parte order being issued against her by the Munsiff, she filed Caveat O.P. 6 of 1988. In that petition, she gave the above mentioned address. Thereafter divorce was effected. After the divorce, she had to leave the place and take shelter under her mother's relatives. Her mother's relatives are at Nadapuram. So, she had come over to Nadapuram for her permanent stay. According to the learned Counsel representing the petitioner, the former husband, her visit to her relatives at Nadapuram is only a flying visit and her residence in Nadapuram during the flying visit cannot be treated as her "residence" at Nadapuram. We are not impressed with this argument, Learned Magistrate, in the impugned order, has come to the conclusion that the divorced woman has stated before Court that being a divorce she is not welcomed by her relatives at Kinaloor, that she has shifted her residence to Nadapuram, which is her maternal house and that she intends to continue her residence there. This intention of the divorced woman to continue her residence at Nadapuram makes Nadapuram her residence for the purpose of the 1986 Act. To constitute "residence" it is not necessary that the divorced woman should have her own residence within the territorial limits of the Court. So long as there is animus manendi or an intention to stay for an indefinite period at a place, that place should be treated as the "residence". In this case, according to the divorced woman, she has taken shelter under her maternal relatives at Nadapuram and she intends to reside there permanently, unlike a casual stay or a flying visit or a mere casual residence with no intention of remaining there. In order to constitute "residence" the intention of the person is of utmost importance. If the intention is to make the place that persons permanent abode or residence, then it will constitute "residence" as contemplated by the 1986 Act. The question as to whether the divorced woman has chosen to make a particular place her abode is to be gathered from the circumstances of the case. When she filed Caveat Petition 6 of 1988, she was not a divorced woman. She gave the address outside the territorial limits of the Nadapuram Court. After the divorce, she shifted her residence to Nadapuram with the intention to reside there permanently. So, the address given by her in the Caveat Petition cannot in any way be put against the divorced woman for contending that her residence outside the territorial limits of the Nadapuram Court. Further, as a matter of fact, the learned Magistrate found that the divorced woman has her residence within his territorial limits. That finding is not to be interfered within exercises of the powers under Section 482 of the Code of Criminal Procedure. The impugned order has not resulted in any abuse of process of Court; nor has resulted in any injustice. We do not find any ground to interfere with the impugned order.
5. The second and more vital contention that was raised by the learned Counsel representing the petitioner herein, the former husband, is that the Court below has no jurisdiction to entertain the petition under the 1986 Act in view of the establishment of the Family Court under the Family Courts Act of 1984, hereinafter referred to as "the 1984 Act". The argument is that after the establishment of the Family Court, no other Court can entertain proceedings relating to maintenance of those in respect of properties belonging to the divorced woman. A petition under Section 3 of the 1986 Act being one relating to maintenance and a reasonable and fair provision for the divorced woman, can be entertained only by a Family Court. In this view, even if the finding arrived at by the learned Magistrate that the divorced woman has got residence within his territorial limits, that Court ceases to have jurisdiction to entertain the application because of the establishment of the Family Court at Kazhikode. For understanding this contention, it is necessary to know the jurisdiction of the Family Court. Jurisdiction of the Family Court is dealt with in Section 7 of 1984 Act. It reads as follows :
"7. Jurisdiction--(1) Subject to the other provisions of this Act, a family Court shall--
(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes 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 Family Court extends.
Explanation--The suits and proceedings referred to in this Sub-section are suits and proceedings of the following nature, namely :
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding or maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise--
(a) 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 (2 of 1974) and
(b) such other jurisdiction as may be conferred on it by any other enactment".
7. According to the learned Counsel representing the petitioner, an application filed by the divorced woman under Section 3 of the 1986 Act is maintainable only before the Family Court because it relates to property of parties to the marriage. Can this plea be accepted ? Section 7(1) of the 1984 Act states that the Family Court shall have and exercise all the jurisdiction exercisable by any District Court on any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. The various proceedings made mention of in Explanation (a) to (g) of Clause (1) exercisable by any District Court or any subordinate Civil Court falls within the jurisdiction of the Family Court. When the Family Court exercises jurisdiction over such a proceeding, that Court will be deemed to be a District Court or subordinate Civil Court, as the case may be. From this provision, it is abundantly clear that proceedings falling within the various Explanations to Clause (1) which, were to be entertained by the District Court or subordinate Civil Courts alone are taken over by the Family Court. In other words, Clause (1) of Section 7 deals with matters which were to be dealt with by District Court or subordinate Civil Courts. It has nothing to do with the proceedings before any Criminal Court.
8. As per Clause (2)(a) of Section 7, the Family Court shall have and exercise jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order of maintenance of wife, children and parents) of the Code of Criminal Procedure. But for this specific provision, the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure would not have been vested in the Family Court. Section 7(2)(b) states that the Family Court shall also have and exercise such other jurisdiction as may be conferred on it by any other enactment. According to the learned Counsel representing the petitioner, this provision takes within its ambit such other jurisdiction as may be conferred on the Magistrate of the First Class by any other enactment. It is his argument that if by any other enactment jurisdiction similar to those falling within Chapter IX of the Code of Criminal Procedure is conferred on the Magistrate must also be transferred to the Family Court. We do not find out way to countenance this argument. According to us Sub-clauses (a) and (b) of Clause (2) deals with two different aspects. Sub-clause (a) deals with the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure. Over and above the jurisdiction of the Civil Court that has been transferred on matters mentioned in Section 7(1), the jurisdiction of the Judicial First Class Magistrate in matters coming under Chapter IX are also transferred to the Family Court under Section 7(2)(a). Apart from these two provisions if the legislature in future wants to confer jurisdiction on any other matter on Family Court, then that power is protected other jurisdiction as may be conferred on it by any other enactment. Thus, Sub-clause (b) of Clause (2) of Section 7 cannot be considered as dealing with other jurisdiction as may be conferred on Judicial First Glass Magistrate by any other enactment. The words "conferred on it" in Sub-clause (2)(b) can refer to only conferment of jurisdiction on the Family Court by any other enactment. If by any other enactment jurisdiction is specifically conferred on the Family Court, that Court can exercise that jurisdiction. In other words, Family Court can exercise jurisdiction only if it is specifically conferred on it and it cannot assume any jurisdiction which is conferred on any other Court.
9. As per Section 7(1) of the 1984 Act, a family Court gets the jurisdiction of the District Court or any subordinate Civil Court on matters referred to in the Explanation to that clause. Under Section 7(2)(a), the Family Court can exercise the jurisdiction of Judicial First Class Magistrate under Chapter IX of the Code of Criminal Procedure. Family Court can also exercise jurisdiction that may be conferred on it by any other enactment as well.
10. The jurisdiction of the Judicial First Class Magistrate under Section 3 of the 1986 Act does not fall within any of the categories comprehended by Section 7 of the 1984 Act. Eventhough the jurisdiction of the Judicial First Class Magistrate while entertaining a petition under Section 3 of the 1986 Act is quasi-civil in nature, that jurisdiction will not stand transferred to the Family Court. That jurisdiction is one specifically conferred on the Judicial First Class Magistrate, It is not one coming within Chapter IX of the Code. So, the jurisdiction of the Judicial First Class Magistrate under Section 3 of the 1986 Act cannot in any way be affected by the establishment of the Family Court.
11. The Family Courts Act was enacted in 1984. That Act was published in the Gazette of India dated 14.9.1984. No provision of the 1986 Act confers any jurisdiction under that Act on the Family Court. On the other hand, Section 3(2) of the 1986 Act provides that the application is to be made, to a Magistrate as defined under the and not to the Family Court. Apart from that, Section 3 of the 1986 Act, which was enacted subsequent to the Family Courts Act, begins with a non-obstante clause.
"Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to."
This makes the provision contained in that Section complete in itself. It does not depend on any other enactment for its enforcement. This makes it clear that the provision contained in the 1986 Act shall have over-riding effect on all provisions contained in the earlier enactments, including the Family Courts Act of 1984.
12. Learned Counsel representing the petitioner brought to our notice the following observation made by a learned Single Judge of the Bombay High Court in Kamal V.M. Allaudin v. Raja Shaikh (AIR 1990 Bombay 299) in support of his argument that the petition under Section 3 of the 1986 Act must also be transferred to the Family Court :
"It would, therefore, be seen on reading Section 7 of the Act that the Family Court now has and exercises all the jurisdiction that was exercisable till the establishment of the Family Court, by any District Court or any subordinate Civil and Criminal Court in respect of suits and proceedings of the nature referred to in the Explanation to the said Section."
The above observation was made by the learned Judge in a matter arising under the 1986 Act pending before it. Learned Judge took the view that the matter pending before it under the 1986 Act should also be transferred to the Family Court. Since the matter under the 1986 Act was pending before the High Court itself, it cannot be said that it was a matter dealt with by the Judicial First Class Magistrate. Further, the learned Single Judge proceeded as if Explanation to Clause (1) of Section 7 applies to proceedings pending before Criminal Court as well. This assumption made by the learned Single Judge is not warranted by the provision. So, we, with due respect, dissent from the above observation made by the learned Judge.
13. Identical question as the one raised in this proceeding came up for consideration before a Division Bench of the Allahabad High Court in Amjum Hasan Siddiqui v. Salma B, (AIR 1992 Allahabad 322). The learned Judges of the Division Bench took the view that the Family Court was not competent to deal with a petition moved under Section 3 of the 1986 Act for want of jurisdiction. We are in respectful agreement with that decision.
In view of what has been stated above, we find no substance in this petition. It is accordingly dismissed.