Amirshah S/O Kadirshah And Ors. vs Salimabi W/O Amirsha
2006 Latest Caselaw 301 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Shri Kaptan, learned Counsel for the applicants. None appears for the non-applicant, though served.

2. The civil revision application is directed against the order dated 1-12-1999 passed by the Civil Judge, Senior Division, Daryapur whereby application filed by the applicants Under Section 9 of Code of Civil Procedure for dismissal of the suit for want of jurisdiction came to be dismissed.

3. Shri Kaptan, learned Counsel for the applicants, submitted that applicant No. 1 was married to non-applicant. However, marriage was dissolved by divorce on 17-8-1998. The non-applicant filed Regular Civil Suit No. 36/1998 for return of articles of Dahej. The applicants filed an application Under Section 9 of Code of Civil Procedure for dismissal of the suit for want of jurisdiction of the Civil Court in view of provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial Court dismissed the said application vide impugned order dated 1-12-1999. Hence, the present civil revision application.

4. It was contended by learned Counsel Shri Kaptan that Sub-section (2) of Section 3 of the Act of 1986 contemplates that a Muslim divorced woman shall be entitled to make an application before the Magistrate for recovery of property given to her before or at the time of marriage or after her marriage by her relatives or friends or husband or any relatives of husband or his friends and the Magistrate is required to make an order within one month from the date of filing of such application and is also entitled to issue directions to former husband to pay such reasonable and fair amount as well as for payment of such mahr or dower or delivery of such properties referred to in Clause (d) of Sub-section (1) of Section 3. It was contended that under Sub-section (4) of Section 3, the Magistrate is also vested with power, if the concerned person fails to comply with the directions issued by the Magistrate for want of sufficient cause, to sentence such person for whole or part of any amount remaining unpaid after execution of the warrant, to imprisonment for a term, which may extend to one year or till payment, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

5. learned Counsel Shri Kaptan further submitted that in view of complete procedure prescribed for recovery of dahej articles, etc. Under Section 3 of the Act of 1986, by necessary implication, jurisdiction of the Civil Court is barred and, therefore, application of the applicants Under Section 9 of the Code of Civil Procedure ought to have been allowed by the trial Court and the suit filed by the non-applicant ought to have been dismissed. In order to substantiate his contentions, reliance is placed by the learned Counsel for the applicants on the decision of the Apex Court in N.D.M.C. v. Satish Chand (deceased) by L.R. Ram Chand .

6. I have given anxious thought to the contentions canvassed by the learned Counsel for the applicants and perused the provisions of Section 3 of the Act of 1986, Section 9 of Code of Civil Procedure as well as decision of the Apex Court relied upon and cited by learned Counsel for the applicant. Before I consider the issue on merits, it will be appropriate to consider the relevant provisions of Section 3 of the Act of 1986, which read thus :

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) .....

(b) ......

(c) .....

(d) all the properties given to her before or at the time of marriage or after her 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 has 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 authorized 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 provision 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 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.

(4) If any person against whom an order has been made under Sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974) and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

Perusal of the abovereferred provisions clearly demonstrate that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to make an application for recovery of dahej articles or mahr, etc. Under Section 3 of the Act of 1986. However, the provisions of Section 3 neither expressly nor impliedly oust the jurisdiction of the Civil Court. The remedy Under Section 3 of the Act of 1986 is undoubtedly in addition to other remedies available to the Muslim divorced woman for recovery of dahej articles or mahr.

7. I cannot lose sight of the fact that if a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court's jurisdiction, then both the common law and statutory remedies are available to the concerned person and it is for such person to select the remedy available. In the instant case, non-applicant has a pre-existing right under the provisions of the Act of 1986 and the said Act also provides remedy for its enforcement without expressly excluding jurisdiction of the Civil Court. In such situation, in my considered view, both the remedies are available to the Muslim divorced woman - one under the provisions of Section 3 of the Act of 1986 and other for approaching the Civil Court. It is for such woman to select/elect the remedy, which she wants to undertake.

8. Section 9 of the Code of Civil Procedure contemplates that the Civil Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. It is, therefore, evident that Civil Court is competent to try all suits of civil nature and has jurisdiction to try these suits unless jurisdiction of the Civil Court is either expressly or impliedly barred. So far as provisions of Section 3 of the Act of 1986 are concerned, I have already observed that language of the said Section does not convey that jurisdiction of the Civil Court is either expressly or impliedly barred. 9. The relevant observations of the Apex Court in para (6) of its judgment in the case of N.D.M.C. (cited supra) read thus :

If, however, a right pre-existing in common law is recognised by the Statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court's jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving upon an element of election to the persons of inherence.

The abovereferred observations of the Apex Court need to be understood in right perspective. Right, which is pre-existing in common law, if is recognised by the statute and a statutory remedy for its enforcement is also provided, without expressly excluding Civil Court's jurisdiction, in such situation, both the remedies are available to the concerned person and, therefore, contentions canvassed by learned Counsel Shri Kaptan in this regard are misconceived and devoid of substance and the law laid down by the Apex Court, in such situation, is of no help to the applicant.

10. Even otherwise, remedy provided Under Section 3 of the Act of 1986 is before the Magistrate and the proceedings are of criminal nature and on this count also, the jurisdiction of the Civil Court for enforcement of common law rights cannot be said to be either expressly or impliedly barred.

11. In the circumstances, civil revision application suffers from lack of merit and hence, the same is dismissed. No order as to costs.