[Difference of opinions] SC refers to larger bench legal question, "Does Family Court have jurisdiction in maintenance application under Muslim Women Act, 1986?"

The SC on June 18, 2020 {RANA NAHID @ RESHMA @ SANA & ANR. vs SAHIDUL HAQ CHISTI} was considering vexed, but interesting question of law i.e. whether the family court has jurisdiction to try application filed by Muslim divorced woman for maintenance under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.

However, as the question was vexed one, two Judges on the Bench did not concur,  Justice R. Banumathi and Justice Indira Banerjee had divergent opinions in the appeal.

Per Justice R. Banumathi

Justice R. Banumathi held that since the Muslim Women’s Protection Act, 1986 does not refer to the Family Court or does not say that an application under Sections 3 and 4 can be filed before the Family Court, in her lordship's view, the Family Court cannot entertain the application of divorced Muslim woman under Sections 3 and 4 of the Muslim Women’s Protection Act, 1986.

Justice R. Banumathi further held that the application under Section 3(2) of the Act of 1986 by the divorced wife has to be filed before the competent Magistrate having jurisdiction if she claims maintenance beyond the iddat period. It was held even if the Family Court has been established in that area, the Family Court not having been conferred the jurisdiction under Section 7 of the Family Courts Act, 1984 to entertain an application filed under Section 3 of the Muslim Women Protection Act, the Family Court shall have no jurisdiction to entertain an application under Section 3(2) of the Act of 1986. It was held that the Family Court, therefore, cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. It was concluded by her lordship that the High Court rightly held that the Family Court has no jurisdiction to entertain the petition under Sections 3 and 4 of the Act of 1986 and that the Family Court cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. Justice R. Banumathi does not find any reason warranting interference with the impugned order.

Per Justice Indira Banerjee

Whereas, Justice Indira Banerjee held that it was never the intention of the 1986 Act for Muslim Women to deprive divorced Muslim Women from the litigant friendly procedures of the Family Courts Act and denude Family Courts of jurisdiction to decide applications for maintenance of divorced Muslim women. 

It was further held by Justice Indira Banerjee that if proceedings under Section 125 Cr.P.C. are civil in nature as held earlier by Supreme Court in Iqbal Bano v. State of UP and Another (2007) 6 SCC 785,  the Court of the Magistrate dealing with an application under Section 125 Cr.P.C. is to be deemed a Civil Court for the purpose of deciding the  application under Section 125 Cr.P.C. It was held that on a parity of reasoning, an application under Section 3/4 of the 1986 Act for Muslim Women is also civil in nature. It was held that the Court deciding an application under Section 3/4 of the 1986 Act for Muslim Women is to be deemed to be a Civil Court.

Thus, it was concluded by Justice Indira Banerjee that the Family Court would have jurisdiction under Section 7 of the Family Courts Act to entertain an application under Section 3 and 4 of 1986 Act for Muslim Women, since the Court of Magistrate dealing with such an application is to be deemed to be a Civil Court subordinate to the District Court.

Resultantly, in view of difference of opinions and the distinguishing judgments (Justice R. Banumathi dismissed the appeal and Justice Indira Banerjee  allowed the appeal), the matter was placed before the Chief Justice of India for referring the matter to the Larger Bench.