HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- FIRST APPEAL No. - 1158 of 2004 Appellant :- Mohammad Yaseen Respondent :- Smt. Mehrajunnisha Counsel for Appellant :- T.A.Khan Counsel for Respondent :- Shesh Kumar Hon'ble Sudhir Agarwal,J.
Hon'ble Dinesh Gupta,J.
1. Heard Sri T.A. Khan, learned counsel for appellant and Sri Shesh Kumar learned counsel for respondent.
2. The present First Appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as "Act 1984") is arising from the judgement and order dated 2.11.2002 passed by Principal Judge, Family Court Moradabad in Civil Misc. Case No.206 of 1999 under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986 (hereinafter referred to as "Act of 1986), which reads as under "3. Mahr or other properties of Muslim woman to be given to her at the time of divorce. - (1) Notwithstanding anything contained in any other law for the time being in force,a divorced woman shall be entitled to-
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to before or after he divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective date of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time or her marriage or at any time thereafter according to Muslim Law; and
(d) all the properties given to her before or at the time or marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due had not been made or paid or the properties referred to in clause (d) of sub-section(1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.
(3) Where an application has been made under sub-section (2) by a divorced woman,the Magistrate may, if he is satisfied that-
(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provisions and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application,directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period."
3. From a perusal of Section 3 of Act of 1986, it is clear that the application thereunder can be filed before the Magistrate under the Code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C.1973)
4. In the present case, application has been filed before the Judge Family Court, Moradabad. It is contended that application under Section 3 of Act of 1986 is not admissible before the family Court, as it is not attracted by virtue of Section 7 of Family Court Act, 1984 (hereinafter referred to as "Act 1984"), which reads as under:
"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 the Family Court extends.
Explanation -The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely:
a. a suit or proceeding between the parties to a marriage for decree of a nullity 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 of 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 for 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."
5.From a perusal of Section 7 of Act, 1984 and in particular, sub Section (2), it can not be doubted that application under Act, 1986 was not maintainable before Family Court.
6.This very question came to be considered by a Division Bench of this Court in Anjum Hasan Siddiqui V Smt. Salma B AIR 1992 Allahabad 322 Bombay High Court in Noor Jamaal V Haseena (1992) 2 Crimes 46 and Orissa High Court in Sk. Allauddin V Shamima Akhtari , 1995, Cr.L.J. 228.
7. In Anjum Hasan Siddiqui (supra), after considering Section 3 of Act 1986 and Section 7 of Act 1984 this Court held as under :
"10. Thus , we have seen that neither under sub Section (1) nor under Sub Section (2) of Section 7 of Family Court Act has any jurisdiction to entertain an application of the nature contemplated by Section 3 of 1986 Act .
"13. Having considered the matter therefore we are of the view that an application under Section 3 of `1986 Act can liee only before the Magistrate concerned and the Family Court established under the 1984 Act can not exercise jurisdiction unless the same had been specifically conferred upon the Family Court under the provisions of Section 2(b) . The family Court in this Case was therefore ,not competent to deal with the application moved the respondent for want of jurisdiction.
8. A Division Bench of Bombay High Court in Noor Jamaal V Haseena (Supra) and a single Judge (Hon'ble Arijeet Pasayat ,J as his lordship then was) in S.k. Allauddin (Supra) have also taken similar view.
9. This Court finds in respectful concurrence of the aforesaid view in absence of anything argued at the bar to pursue, this court to take a different view. Since the power was possessed by Magistrate and not Family Court, the order passed by Principal Judge,family Court lacked patent jurisdiction, hence illegal and void ab initio.
10. In the result the appeal is allowed The order dated 2.11.2002 passed by the Principal Judge, Moradabad is hereby set aside.
11. No costs.
Order Date :- 7.5.2015 cps