Bombay High Court
Noor Jamaal S/O Habib Momin vs Haseena W/O Noor Jamaal on 23 March, 1992
Equivalent citations: 1992(1)BOMCR607, (1992)94BOMLR201
JUDGMENT V.A. Mohta, J.
1. This is an appeal under section 19 of the Family Courts Act, 1984 (the F.C. Act). The appellant is the husband - Noor Jamaal. The respondent is the divorced wife - Haseena Bano. Impugned order passed by the Family Court is for payment of reasonable and fair provision and maintenance to the wife and minor daughter Jasmeen, payment of mehr amount to the wife and for delivery of properties, under section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (the MW Act).
2. Crux of the matter is whether the Family Court has jurisdiction to entertain proceedings under the MW Act.
3. The point arises against the following backdrop :
The marriage took place on 25th December, 1983. A female child was born on 5th October 1987. Divorce took place on 25th March, 1988. Wife Haseena Bano filed an application under section 3(2) of the MW Act claiming several reliefs including maintenance for the child on 5th October, 1988 before the Additional Chief Metropolitan Magistrate, Borivli, Bombay. It was registered as Special Application No. 90/MN of 1988. On 16th November, 1988 she filed Misc. Application in the said proceedings repeating her prayer for maintenance for minor daughter Jasmeen. It was styled as an application under section 125, Cri.P.C. The learned Magistrate suo motu transferred the proceedings to the Family Court at Bombay established on 7th October, 1989. The Family Court by its order dated 22nd December, 1989 transferred back the proceedings to the Magistrate. On 11th April, 1990 husband - Noor Jamaal made an application before the Magistrate for transfer of the proceedings to the Family Court, in view of the recent decision rendered on 9th March, 1990 by the learned Single Judge of this Court Kamal V. M. Allaudin v. Raja Shaikh, 1990(2) Bom.C.R. 335, inter alia, observing that the Family Court has jurisdiction even to entertain and try proceedings under the MW Act. The wife Haseena Bano did not object to the prayer obviously because she could not in view of the aforesaid decision of this Court. The proceedings were transferred to the Family Court by order dated 22nd August, 1990. Impugned order was passed by the Family Court on 11th January, 1991.
4. Section 7(1) of the FC Act confers upon the Family Court jurisdiction exercisable by the District Court or subordinate Civil Court in respect of suits and proceedings of the nature mentioned in the Explanation. Under section 7(2)(a) the Family Court is vested with the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Cri. P.C. and under section 7(2)(b) with such other jurisdiction as my be conferred on it by any other enactment. Section 8 provides that where a Family Court is established, no Court or Magistrate mentioned in section 7 shall have or exercise jurisdiction mentioned therein and all pending matters shall stand transferred to the Family Court.
5. Section 3 of the MW Act creates certain rights in favour of the divorced Muslim wife and also provides for complete machinery to get the reliefs conferred under the Act. First Class Magistrate under the Cri. P.C. is the adjudicating as well as the executing authority. The short MW Act containing only 7 sections, is a complete Code into itself in respect of rights of divorced Muslim wife conferred under section 3. Rule 4 of the Muslim Women (Protection of Rights on Divorce) Rules, 1986 made under section 6 of the MW Act, provides for recording of evidence in a manner specified for summary trials under the Cri.P.C. The content and width of Jurisdiction of the First Class Magistrate under Chapter IX of Cri.P.C. relating to the order for maintenance of wife, children and parents is quite distinct from the jurisdiction of the First Class Magistrate under the MW Act. Even the procedure is different.
6. Proceedings under the MW Act, therefore, do not fall either under section 7(1) or section 7(2)(a) of the FC Act. Sub-section (2)(b) of section 7 provides for conferral of other jurisdiction by any other enactment upon the Family Court. Despite existence of such provision, the MW Act (which is a latter enactment by the very legislative body which made the FC Act) has not conferred jurisdiction to adjudicate rights under the said Act upon the Family Court. The jurisdiction is conferred on the First Class Magistrate. There is, therefore, no scope whatsoever to infer any legislative intention to confer upon the Family Court jurisdiction to entertain and try applications under the MW Act. It is, therefore, apparent that the impugned order is without jurisdiction.
7. The learned Counsel for the respondent invited our attention to the inconsistent stands taken by the appellant on the jurisdictional issue and submitted that for that reason we should not interfere in this case, even though the order is without jurisdiction. The submission cannot be accepted for variety of reasons. The appellant's prayer for transfer of the case from the Court of the Metropolitan Magistrate was based upon a judgment rendered by this Court. Even the respondent for obvious reasons did not oppose the prayer. The followed a decision by the Division Bench of this Court, Kanak Vinod Mehta v. Vinod Dulerai Mehta, which expressly overruled the Single Bench decision in Kamal Allaudin (supra). It is true that the Single Bench decision was overruled on an altogether different point. The learned Single Judge had taken a view that the term "District Court" in section 7(1) of the FC Act would include even the Original Side of Bombay High Court. The Division Bench held that the said view was wrong. But that aspect would make no difference. Point is whether this is a matter where the appellant before us could be faulted or accused of intentionally blowing hot as well as cold simultaneously or could he be estopped from raising a purely jurisdictional issue, under the circumstances noticed earlier. We do not think so. Only one factor is responsible for his inconsistent stand. It is the uncertainty of law for which no party can be blamed.
8. It is worthwhile noticing that in the matter before the learned Single Judge point relating to jurisdiction under the MW Act was not even indirectly involved. While examining the scheme of the FC Act, passing reference was made also to the MW Act. The observations on that aspect are, therefore, obiter dicta. Moreover, no reasons whatsoever are given in support of the said observations. With respect, we are unable to endorse the view taken in the said decision.
9. In the result, the appeal will have to be and is hereby allowed. The impugned order is quashed and set aside and the matter is remanded to the Additional Chief Metropolitan Magistrate for fresh trial in accordance with law.
10. In view of the order of remand for fresh trial, the debate as to whether there was justification to proceed ex parte against the appellant is rendered purely academic.
11. One point needs clarification. Application for maintenance for minor dated 6th November 1988 was filed in proceedings under section 3(2) of the MW act and not separately. Under section 3, maintenance for minor child can be claimed for a period of two years from the date of his birth. The said application specifically does not refer to the period beyond two years. Hence the said application in truth and substance will have to be considered as one under section 3(2) of the MW Act. Needless, therefore, to mention that right of the minor to claim maintenance under section 125, Cr.P.C. is in no way affected by this order.
12. The matter is very old. It has a chequered career. We, therefore, direct the Additional Chief Metropolitan Magistrate, Borivli, Bombay, to give such priority to this matter as it deserves.
13. Parties undertake to appear before the learned Magistrate, on 16th April 1992, by which time the Office to despatch the R & P to the said Court.
14. To conclude, appeal is allowed. No costs.