My Lord, Jurisdiction of Family Court for Application of Divorced Muslim Woman for Maintenance under Section 3 of The Muslim Women (Protection of Rights on Divorce) Act, 1986?
After Shah Bano, (1985) 2 SCC 556 The Muslim Women’s Protection Act, 1986 was enacted with effect from 19.05.1986 as per which a divorced Muslim woman is not only entitled to maintenance for the iddat period but also to a reasonable and fair provision for the future.
In Danial Latifi, (2001) 7 SCC 740 the Constitution Bench upheld the constitutional validity of the Act. But, the Constitution Bench did not authoritatively decide on the question whether the Family Court would have jurisdiction to entertain an application filed by a divorced Muslim Woman for maintenance under the provisions of the Act. Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh, 2000 (3) Mh.L.J. 555 took the view, a Muslim woman can apply under Sections 3 and 4 of the Act only to the First Class Magistrate having jurisdiction under the Code and the Family Court cannot deal with such applications.
I fully agree with the view taken by the Full Bench of the Bombay High Court in Karim Abdul Rehman Shaikh. Since the Act does not refer to the Family Court or does not say that an application under Section 3 and 4 can be filed before the Family Court, in my view, Family Courts cannot entertain the application of a divorced Muslim woman.
– Hon’ble Justice R. Banumathi, Reshma v. Sahidul Haq Chisti, [Criminal Appeal No. 192 of 2011].
I have not been able to persuade myself to agree that Family Courts lack jurisdiction to convert an application for maintenance filed by a Muslim woman under Section 125, CrPC to an application under Section 3 of the 1986 Act, and decide the same.
There could be no reason to single out divorced Muslim wives to deny them access to Family Courts, and that in my view, was never the legislative intent of the 1986 Act.
The constitutional validity of the 1986 Act has been upheld by this Court in Danial Latifi, (2001) 7 SCC 740. There is however, no authoritative decision of this Court on the question of whether Family Courts have jurisdiction to decide an application of a Muslim woman for maintenance under the provisions of the 1986 Act.
In my view, it was never the intention of the 1986 Act to denude Family Courts of jurisdiction to decide applications for maintenance of divorced Muslim women.
– Hon’ble Justice Indira Banerjee, Reshma v. Sahidul Haq Chisti, [Criminal Appeal No. 192 of 2011].