JUDGMENT
R.B. Mehrotra, J.
1. Both the aforesaid First Appeals have been been filed under Section 19 of the Family Courts Act and the common question of law involved in both the aforesaid First Appeals, is as to whether the Family Court had jurisdiction to pass orders under, The Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act) ?
2. Before appreciating the question of jurisdiction of the Family Court, it is necessary to notice the facts of the cases of both aforesaid Appeals. In First Appeal No. 642 of 1991, Smt. Rehana Begum, respondent herein, filed a petition under Section 125 of Cr.P.C. against her husband, Mohd. Sayeed with the allegation that they were married according to Muslim rites and customs on 11.4.1986and from their wedlock a daughter named Shabana, who was aged about one year at the time of the filing of the petition, was born. Mohd. Sayeed, the appellant herein, informed by a letter to his wife, Smt. Rehana that he has divorced his wife. The aforesaid divorce letter was received on 14.3.1989 and the petition filed by Smt. Rehana, under Section 125 of Cr.P.C, was converted into proceedings under the Act.
3. On a detailed consideration of pleadings of the parties and evidence led by the parties the Judge, Family Court, Bareilly vide his judgment dated 27.9.1991, directed the husband, namely, Mohd. Sayeed, the appellant herein, to pay Rs. 2500/- by way of Mehar to his wife, Smt. Rehana and Rs. 5000/- as value of the articles given to him in dower and maintenance at the rate of Rs. 400/- per month for three months being the period of Iddat and Rs. 100/- per month by way of maintenance for Shabana, the daughter of the appellant from 5.4.1989 i.e. the date of the petition.
4. In First Appeal No. 459 of 1991 Smt. Naseema Bi, filed a petition for maintenance for the period of Iddat, recovery of dower (Mehar) and the restoration of the dowry given in marriage against her husband, namely, Sri Habib Mian under Section 3(2) of the Act. The Judge, Family Court, Bareilly vide his judgment dated 20.7.1991 directed the husband, namely, Sri Habib Mian, the appellant herein, to pay to his wife a sum of Rs. 30,000/- as Mehar, Rs. 1500/-as maintenance for the period of Iddat, to restore the articles shown in the list Ex. Kha- 1 or to pay value thereof amounting to Rs. 73,720/- and also to restore the articles given in present to his wife or their value amounting to Rs. 23,000/-.
5. In both the aforesaid First Appeals we have gone into through the impugned judgments and the material evidence placed on record by the parties and we are fully satisfed that the judgments do not suffer from any error of fact or of law. On a thread bare consideration of the evidence, the Family Court in both aforesaid matters, has recorded findings of fact and having been satisfied on the basis of the material on record, have delivered the impugned judgments.
6. Learned Counsel for the appellant in both the cases has failed to point out any material on record to demonstrate that the findings recorded by the Judge, Family Court in both the aforesaid matters, is not in accordance with the evidence or any other view can be taken from the evidence on record. No question of law arises for consideration in the two impugned judgments. Before the Family Court, the appellants herein, who were respondents before the Family Court, did not raise any objection regarding the jurisdiction of the Family Court to decide the application of the respondents under Section 3(2) of the Act. In the grounds of appeal also no ground has been specifically taken to the effect that the Family Court had no jurisdiction to pass orders under Section 3(2) of the Act.
7. Learned Counsel for the appellant in support of his contention has placed reliance on two decisions of this Court wherein this Court has taken a view that the Family Courts established under 1984 Act had no jurisdiction to pass orders under Section 3 of the Act.
The judgments relied upon by the appellant’s Counsel are in the matter of Amjum Hasan Siddique v. Smt. Salma Bi (1992 Allahabad Weekly Cases page-48) and Israr Beg v. Shahnaz Begum [1995(32) Allahabad Criminal Cases Page 7]. The second decision mainly relies on the first decision. The reasoning of the Division Bench of this Court in Siddiqui case (supra) is contained in paragraph-7 of the said judgment wherein this Court has taken a view that an application under Section 3 of the Act cannot be said to be a proceeding nor such matter can be held to be cognizable by a Civil Court and on the basis of the a foresaid reasoning the Division Bench of this Court came to the conclusion that the Family Courts Act, which was enacted prior to the enactment of the Act, had no jurisdiction to try a case under the provisions of Section 3 of the Act.
8. Learned Counsel for the appellants in both the cases has urged that since the Family Court lacks inherent jurisdiction, the judgments challenged in Appeals should be treated to be nullity and should be set aside on the said ground. For testing the reasoning of this Court in A.S. Siddiqui’s case (supra) some provisions of the Family Courts Act need be noticed.
The statement of objects and reason of Family Courts Act are necessary to appreciate the scope of the jurisdiction of the Family Courts. The same are quoted herein :
“Several associations of women, other organisations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th Report (1974) had also stressed that in dealing with disputes concerning the family Courts ought to adopt an approach redically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the Courts in adopting this conciliatory procedure and the Courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes.
2. The Bill inter alia, seeks to :
(a) provide for establishment of Family Courts by the State Government;
(b) make it obligatory on the State Governments to set up a Family Court in every city or town with a population exceeding one million;
(c) enable the State Governments to set up such Courts in areas other than those specified in (b) above;
(d) exclusively provide within the jurisdiction of the Family Courts the matters relating to:
(i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of a’ marriage or as to the matrimonial status of any person;
(ii) the property of the spouses or of either of them;
(iii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor;
(v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure;
(e) make it obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal and the rigid rules of procedure shall not apply;
(f) provide for the association of social welfare agencies, counsellors, etc., during conciliation stage and also to secure the services of medical and welfare experts;
(g) provide that the parties to a dispute before a Family Court shall not be entitled, as of right, to be represented by legal practitioner. However, the Court may, in the interest of justice seek assistance of a legal expert as amicus curiae;
(h) simplify the rules of evidence and procedure so as to enable a Family Court to deal effectually with a dispute;
(i) provide for only one right of appeal which shall lie to the High Court.
3. The Bill seeks to achieve the above objects.”
9. Statement of Objects and Reasons Clause 2(d) specifically provides for bringing in within the jurisdiction of the Family Courts the matters relating to matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights etc. matter also relating to the property of spouse or either of them, and also all issues relating to maintenance including proceeding under Chapter IX of Cr.P.C.
Some other provisions of Family Courts Act, 1984 need be noticed :
Section 3 provides for establishment of Family Court. Section 3(1) provides that the State Government in consultation with the High Court shall establish for every area in the state comprising the city or town whose population exceeds one million. The Family Court Act also provides that the State Government may establish Family Courts for such other areas as the State Government deem it necessary. Sub-section (2) of Section 3 provides that the State Government after consultation with the High Court, specify, by notification, the local limits of the area. Section 4 provides that the State Government shall appoint one or more persons to be Judge or Judges of the Family Court with the concurrence of the High Court. Section 4(3) provides qualification for appointment of the Judge of the Family Court wherein it is stated that a person should have atleast seven years’ experience of holding a judicial office or should have an experience of seven years as an Advocate in the High Court. Section 4(4) provides that preference shall be given to women in appointment of Family Court Judge.
Section 7 provides for the jurisdiction of the Family Court. Section 7(1) provides that Family Court shall exercise jurisdiction exercisable by any District Court or by any Subordinate Civil Court under any law for the time being in force in respect of the suits and proceedings of the nature referred to in the explanation and also provides that the Family Court shall be deemed 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 to Section 7 gives details of the proceedings in which the Family Court will have jurisdiction. Explanations (a), (b), (c) and (f) are relevant which may be taken note of:
“(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 of either of them;
(f) a suit or proceeding for maintenance.”
Section 7(2) provides that the jurisdiction exercisable by the Magistrate of First Class under Chapter IX of the Code of Criminal Procedure, 1973 and any other jurisdiction which may be conferred on the Court by such Act will also be within the jurisdiction of the Family Court.
Section 8 excludes the jurisdiction of other Courts in the matters provided under Section 7 of the Act and also provides of proceedings covered by Section 7 of the Act shall stand transferred to the Family Court on the establishment of the said Courts in the area.
10. Provisions of The Muslim Women (Protection of Rights on Divorce) Act (referred to as ‘Act’) need be scanned.
Section 3 of the Act is reproduced for convenience:
“3. Mahr or other properties of Muslim Women 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 her before or after her 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 dates 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 of her marriage or at any time thereafter according to Muslim Law; and
(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 Caluse (d) of Sub-section (1) have not been delivered to a divorced woman on her divorce, she or any only 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 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 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 having 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.”
11. Under Section 3 of the Act it is provided that notwithstanding anything contained in any other law the divorced woman shall be entitled to a reasonable and fair provision and main tenance to be made and paid to her during the Iddat period by her former husband. Clause (b) of Section 3 provides that where she herself maintains the children born to her before or after her 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 dates of birth of such children, Clause (c) of the aforesaid section provides that an amount equal to the sum of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law. Clause (d) of the aforesaid section provides that 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. Sub-section (3) of the aforesaid section provides procedure for making application wherein it is contemplated that an application is to be made by a divorced woman to the Magistrate and the Magistrate being satisfied that 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 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, will make an order directing her former husband to pay maintenance to the divorced wife for the period of Iddat and also may direct for payment of such Mahr or dower or delivery of such properties referred to in Clause (d) of Sub-section (1) to the divorced woman.
12. A bare perusal of Section 3 of the Act demonstrates that the dispute relates to a proceedings between the parties to the marriage for a divorce and for maintenance as well as in respect of the properties of the parties to the marriage. Under Mohammedan Law Mahr and dower are the properties of the wife. Under Section 3 of the Act, the petitioner is to be made claiming maintenance for the period of Iddat after divorce, claiming maintenance for the child born from the former husband and claiming Mahr and dower or a sum equivalent thereto which are admittedly the properties between the parties to the marriage. All the aforesaid claims, which a divorced wife under the Act is supposed to make before a Magistrate are squarely covered by the Explanations of Section 7 of the Family Courts Act.
It was realised that the family disputes should either be settled or should be amicably resolved and it was also realised that since the Courts are over- burdened with their arrears, the dispute between the husband and wife, the two important constituents of a family and also many times the plight of the minor children require special and urgent attention and for giving special attention to the disputes of the family and for resolution of the same expeditiously, the Family Court, Act was enacted.
13. Section 20 of the Family Courts Act gives an over-riding effect to the provisions of the Act over all other enactments. The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are settled by the Family Courts. It cannot be doubted for a minute that the dispute contemplated by Section 3 of the Act is within the purview and four corners of the Family Courts Act, as the dispute under Section 3 of the Act also relates to matrimonial relations between the parties and as a consequence of this matrimonial relations having been broken, entitlement of divorced wife after breaking of the matrimonial relations with her husband begins.
14. The first question which requires consideration is whether an application contemplated under Section 3 of the Act can be termed as proceedings in terms of explanations provided to Section 7 of the Family Courts Act. The second question arises for consideration is as to whether an application to be moved under Section 3 of the Family Courts Act before a Magistrate can be brought within the purview of Section 7(1)(a) of the Family Courts Act i.e. jurisdiction exercisable by any District Court or by 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 explanations.
The words ‘proceedings’, ‘District Court’ or ‘any Subordinate Civil Court’ are not defined under the Family Courts Act.
Section 2(c) of the Act defines ‘Magistrate’ which reads as under :
” ‘ Magistrate’ means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the divorced woman resides.”
General Clauses Act also does not define the words ‘proceedings’, ‘District Court’ or’ Civil Court’. The word ‘proceedings’ originates from the word’ proceed’. The word ‘proceed’ is defined in the New Laxicon Websters Dictionary (Delux Encyclopedic Edition). The definition of the words ‘proceed’ inter alia means” to take legal measures”. Word ‘proceedings’ have also been defined in the said Dictionary “as legal measures”. Moving an application under Section 3 of the Act is definitely a legal action for the redress of the divorced wife in accordance with the provisions of the Act. The proceedings as contemplated by explanation of Section 7 of the Family Courts Act thus brings in within its purview an application under Section 3 of the ‘Act’.
15. The Division Bench decision referred to and relied upon by the learned Counsel for the appellants does not give any reasoning whatsoever for taking a view that an application under Section 3 of the Act cannot be brought in within the meaning of proceedings referred to in explanation of Section 7 of the Family Courts Act.
The other question requires for consideration is whether an application before the Magistrate contemplated by Section 3 of the Act can be held to be an application under District Court or Civil Court to bring it within the purview of Section 7 of the Family Courts Act.
This needs a reference to the defiinition of ‘Magistrate’ referred to in Section 2(c) of the Act. The definition provides that the ‘Magistrate’ means a Magistrate of the First class exercising jurisdiction under the Code of Criminal procedure, 1973. Since initially an application under Section 125 of Cr.P.C. was moved by the respondent’s wife in the aforesaid appeal and the Court was seized of the jurisdiction of the matter, during the pendency of the proceedings the appellant decided to divorce his wife in the aforesaid circumstance the Family Court which was seized of die jurisdiction of 125 Cr.P.C, passed order under Section 3 of the Act.
16. The appellant never raised any objection in the Court below that the Family Court had no jurisdiction to decide the application, no infirmity has been pointed out before us in the impugned order, except that the Family Court had no jurisdiction in the present matter. In the present appeal it cannot be doubted when the proceedings were initiated under Section 125 of Cr.P.C. the appellant did not divorce the respondent. The divorce has taken place during the course of proceedings to trustrate the application under Section 135 of Cr.P.C. The Court was alreadyiseized of the jurisdiction and the appellant having not objected to the said jurisdiction, he cannot be permitted to agitate the said issue for the first time during the course of argument.
17. In First Appeal No. 459/91 the petition under Section 3(2) of the Act was filed before the Family Court, the appellant, who was respondent therein, did not file objection regarding jurisdiction of the Court and acceded to such jurisdiction. As stated earlier, he has also not taken any ground in the present first appeal regarding jurisdiction of the Court. For the first time this objection has been raised during the course of argument on the basis of Division Bench decision of this Court referred to earlier.
in Muslim @ Bhoora v. State of U.P. and Another,1995 A.L.J. page 1644, while construing the provisions of Section 3(3) of the Act Hon’ble Mr. Justice C. A. Rahim held :
“…If the Magistrate is unable to dispose of the application within one month as provided in Sub-section (3) of Section 3 of the Act and for that matter if he does not record any reason a divorced lady is out of ground for no fault of her own. For granting relief to a lady she is to file an application with necessary details and allegations if any, and it is the duty of the Court to take speedy recourse to make available to the petitioner the relief granted by the Legislature under the special legislation and if he cannot do it within the period which was provided in the Act the lady should not suffer.”
18. The entire purpose of the Act is to provide speedy and expeditious remedy to the destitute lady. The said object of the Act will be defeated if the appellants are permitted to agitate the issue jurisdiction at the appellate stage in the background of the specific provisions of the Act that the application of the destitute lady should be decided within one month from the date of the application. This speedy remedy cannot be permitted to be defeated on the basis of the ground which was never agitated before the Court below. Taking into account the entire circumstances and also taking into account that in case the appellants are permitted to Magistrate the issue of jurisdiction for the first time in the present appeal, the cause of justice will be defeated and considering the entire provision of Family Courts Act we are of the view that the Family Court did not lack inherent jurisdiction to deride an application under Section 3(2) of the Act.
19. However, assuming that Family Court lacks such jurisdiction, we have ourselves examined the impugned judgment and we are of the view that the . impugned judgment does not suffer from any error of law or of fact. We have affirmed the judgment of the Trial Court. In the extraordinary circumstance of the , case we approve the judgment in exercise of our jurisdiction under Article 227 of the Constitution of India. On the aforesaid analysis we are satisfied that both the appeals deserve to be dismissed with costs. Accordingly, both the F.A. are dismissed with costs. The interim order passed by this Court stands discharged.
The copy of the judgment alongwith the record of the case is directed to be sent forthwith to the Court below. We further direct the Court below to ensure expeditious exercitation of the impugned judgment within two months from the date of the receipt of the record of this case and compliance thereof should be reported back to this Court.