Rana Nahid & Another v. Shahidul Haq Chisti

By – Mayank Chamoli

In the Supreme Court of India

NAME OF THE CASERana Nahid & Another v. Shahidul Haq Chisti
CITATIONCriminal Appeal No.192 Of 2011
DATE OF THE CASE28th July 2010
APPELLANTRana Nahid & Another
RESPONDENTShahidul Haq Chisti
BREACH / JUDGER. Banumathi, J. and Indira Banerjee, J.
STATUTES / CONSTITUTION INVOLVEDThe Code of Criminal Procedure (CrPC); Muslim Women (Protection of Rights on Divorce) Act, 1986
IMPORTANT SECTONS / ARTICLESSection 125 of The Code of Criminal Procedure (CrPC); Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986

ABSTRACT

The case, Rana Nahid & Another v. Shahidul Haq Chisti deals with the living expenses of a divorced Muslim wife who petitioned under Section 125 of The Code of Criminal Procedure (CrPC). In this case, the question raised before the court was that if the family court has jurisdiction to try the application for living expenses/maintenance by a divorced Muslim wife under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Maintenance law applied to women regardless of their religion under Section 125 of CrPC before 1985. In the year 1985, the Supreme Court of India gave a landmark judgement in the case of Mohd. Ahmed Khan v. Shah Bano Begum, advocating maintenance to a divorced Muslim woman under Section 125 CrPC. In the wake of this decision by the Supreme Court, the political situation in the country had gone bad. The ruling party to preserve its face, passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which made the Supreme Court’s judgment (Shah Bano Begum Case) to be worthless. The right of divorced Muslim women got confined by this Act. Now, the divorced Muslim woman is eligible for maintenance only during the ‘Iddat’ period which extends to 90 days after the divorce.

INTRODUCTION

Rana Nahid, appellant number 1 and Shahidul Haq Chisti, respondent got married according to the Muslim Religion and appellant 2 (son) was born out of wedlock.  On 23rd April 2008, divorce was given and a case for maintenance was filed under Section 125 of The Code of Criminal Procedure (CrPC). The Family Court held that the application is not maintainable under Section 125 of The Code of Criminal Procedure (CrPC) as the applicant and her application should be treated under Section 3 of the Muslim Women (Protection of Rights on Diverse) Act, 1986. Respondent was ordered to pay an amount of 3 lakh rupees in a lump sum to appellant number 1 and an amount of rupees 2,000 per month to appellant number 2 (son) till he attains the age of majority. Being resented by the quantum of maintenance, both the appellants and the respondent filed a revision petition in the High Court of Rajasthan against the order of the Family Court. The High Court held that the Family Court does not have the jurisdiction to entertain an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and also converting the application under the Section 125 of The Code of Criminal Procedure (CrPC) into an application under Section 3 of the Act is outside the jurisdiction and as a consequence, the order was put aside. Nonetheless, liberty was given to appellant number 1 to file an application before the court of Competent Magistrate and the maintenance amount given to appellant number 2 was retained.

BACKGROUND OF THE CASE

Rana Nahid (petitioner in revision No. 295/2009 and respondent in revision No. 221/2009) petitioned under Section 125 of The Code of Criminal Procedure (CrPC) in an attempt to obtain maintenance. While hearing the application, the Family Court found that application under Section 125 of The Code of Criminal Procedure (CrPC) is not maintainable and as a consequence, invoked the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and granted a number of rupees 3 lakh to Rana Nahid towards the maintenance aside from the maintenance to the son. Learned counsel for petitioner Shahidul Haq Chisti, in other revision petition set upon the order mainly on the ground that according to the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, an application can be maintained before the Competent Magistrate, but contradictory to the aftermentioned, Family Court entertained the application treating it to be under the Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and passed the disputed order which inherently illegal being without the jurisdiction. The prayer is, accordingly, to set aside the disputed order to the extent of awarding maintenance to Rana Nahid. Learned counsel for respondent Rana Nahid submits that the ground taken by the learned counsel for the petitioner is pedantic as it would defeat the very purpose for which the Muslim Women (Protection of Rights on Divorce) Act, 1986 has been brought. The Family Court exercised its jurisdiction under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 considering the judgment of the Apex Court in the case of “Iqbal Bano v. State of Uttar Pradesh” 2007 CrLR (SC) 554. In that respect, it was held that while hearing an application under Section 125 of The Code of Criminal Procedure (CrPC), if it appears to be not maintainable then a Magistrate can exercise jurisdiction under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the view of the judgment of the Apex Court, there is no error in the order. It is prayed that maintenance allowed to Rana Nahid is on the lower side hence, the same may be increased. Alternatively, if it is found that an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 can be maintained before the Competent Magistrate and as a consequence, the Family Court had no jurisdiction to pass the disputed order then Rana Nihid may be given liberty to file an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 before the Competent Magistrate within two months.

FACTS OF THE CASE

  • The marriage between Rana Nahid and Shahidul Haq Chisti was according to the Muslim marriage customs and a child was born out of the wedlock.
  • It was alleged by Rana Nahid that she was harassed for dowry, subjected to cruelty, and was dismissed of her marital home. After this, a petition was filed by her under the Section 125 of The Code of Criminal Procedure (CrPC) against Shaidul Haq Chisti, her husband in the family court.
  • The appellant number 1, claimed maintenance of rupees 6,000/- per month for herself and rupees 2,500/- per month as maintenance for her son as she asserted that her husband was a lecturer in a school from where he earned an amount of rupees 20,000 as his salary, he also served in a Darga where he earned an amount of rupees 20,000 per month.
  • The family court didn’t allow the maintenance to the wife under the Section 125 of The Code of Criminal Procedure (CrPC) as the appellant was a divorced Muslim wife. However, the son was granted maintenance under Section 125 of The Code of Criminal Procedure (CrPC), and Shahidul Haq Chisti was ordered to pay an amount of Rs 2,000/- per month for the son’s maintenance until he attains the age of majority.
  • Nevertheless, the Family Court treated the petition under the Section 125 of The Code of Criminal Procedure (CrPC) as a petition under the Muslim Women (Protection of Rights on Divorce) Act, 1986.
  • The Family Court ordered Sahidul Haq Chisti (the husband) to pay an amount of rupees 3 lakh in a lump sum to the appellant number 1 for her maintenance and for the future living as per the Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
  • However, the appellant number 1 was not satisfied by the quantum of maintenance allowed to her by the Family Court and therefore, she had filed a revision petition before the High Court of Rajasthan for an expand in the amount of maintenance.
  • The respondent also filed a revised petetion.
  • According to the Family Court’s decision, before the appeal an amount of rupees 1 lakh was paid to the wife by the respondent for the matter which was pending before the High Court.
  • The Rajasthan High Court put aside the order of the Family Court expressing that the Family Court did not have the jurisdiction to convert the application under the Section 125 of The Code of Criminal Procedure (CrPC) into an application under the Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

ISSUES RAISED BEFORE THE COURT

  • Can the family court have jurisdiction to try an application filed by a divorced Muslim woman for maintenance under the Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986
  • If the Section 125 of The Code of Criminal Procedure (CrPC) can overrule Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (personal law)?

ARGUMENTS FROM THE APPELLANT SIDE

Learned counsel for petitioner Shahidul Haq Chisti, in other revision petition set upon the order mainly on the ground that according to the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, an application can be maintained before the Competent Magistrate, but contradictory to the aftermentioned, Family Court entertained the application treating it to be under the Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and passed the disputed order which inherently illegal being without the jurisdiction. The prayer is, accordingly, to set aside the disputed order to the extent of awarding maintenance to Rana Nahid.

ARGUMENTS FROM THE RESPONDENT SIDE

Learned counsel for respondent Rana Nahid submits that the ground taken by the learned counsel for the petitioner is pedantic as it would defeat the very purpose for which the Muslim Women (Protection of Rights on Divorce) Act, 1986 has been made. The Family Court exercised its jurisdiction under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 considering the judgment of the Apex Court in the case of “Iqbal Bano v. State of Uttar Pradesh” 2007 CrLR (SC) 554. In that respect, it was held that while hearing an application under Section 125 of The Code of Criminal Procedure (CrPC), if it appears to be not maintainable then a Magistrate can exercise jurisdiction under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the view of the judgment of the Apex Court, there is no error in the order. It is prayed that maintenance allowed to Rana Nahid is on lower side hence, the same may be increased. Alternatively, if it is found that an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 can be maintained before the Competent Magistrate and as a consequence, the Family Court had no jurisdiction to pass the disputed order then Rana Nihid may be given liberty to file an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 before the Competent Magistrate within two months.

RELATED PROVISIONS

  • Section 125 of The Code of Criminal Procedure (CrPC): Section 125 of The Code of Criminal Procedure (CrPC) is one of the most invoked and talked through provisions of the code. The Section 125 of The Code of Criminal Procedure (CrPC) provides that any person who has adequate means to maintain himself shall not refute the maintenance to the wife, children, and parents if they are incapable to maintain themselves.
  • Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986: Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 says that “a reasonable and a fair provision and maintenance to be made and paid to the wife within the iddah period (the period which a women should observe after a divorce, during which she may not marry someone else) by her former husband”.The Court held this provision means that a reasonable and a fair provision and maintenance is not restricted for the iddah period. It extends for the whole life of the divorced wife up till she marries again.

JUDGEMENT

The honourable bench consisting of R. Banumathi, J. and Indira Banerjee, J. gave a split verdict on the issue of the Family Court’s decision to convert the petition filed under Section 125 of The Code of Criminal Procedure (CrPC) for maintenance into Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 

  • R. Banumathi, J. put forward that the Family Court can’t change an application for maintenance under Section 125 of The Code of Criminal Procedure (CrPC) into Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 as it does not have jurisdiction to do so. Submitting this she dismissed the appeal.
  • Indira Banerjee, J. allowed the appeal as she was of the opinion that the Family Court had the jurisdiction to convert the petition for maintenance of the Appellant no. 1 under Section 125 of The Code of Criminal Procedure (CrPC) into a petition under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

CONCLUSION

There have been innumerable instances when a 2-judge bench has disagreed by giving a split verdict and referred the case to the Chief Justice of India (CJI), anyhow, what makes this case different is the detailed justification given by both the senior judges who are always recognized for their insightful decision-making. The subject for disagreement was on the basic matters of justice and jurisdiction. The judgements by the different courts on the question of jurisdiction of the Family Courts to entertain applications under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 have been unalike, differing and even disputed at times. The unembellished view taken by R. Banumathi, J. is in agreement with many High Court judgements, and for the instance, the apex court has also held that opinion. On the contrary, Indira Banerjee, J. viewed the Section 7(f) of the Family Court Act, 1984, as an absolute answer to any argument which suggested that matters of maintenance are not within the Family Court’s jurisdiction as that clause clearly mentions that “any suit or proceeding for maintenance, which would include an application under the Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.”

Now due to this, the case is being referred to a larger bench of the split verdict and we do not know what will happen in such a case wherein both the judges have presented opinions with adequate support to back them up. This case will be a landmark case that may be the catalyst to bring forward the critical gaps in the Family Courts Act, 1984, and its conflict with the Muslim Women (Protection of Rights on Divorce) Act, 1986 which if discovered shows the biased views against the rights of equality of divorced Muslim women. In winding up, it has taken 9 years to hear a reappear of this case, and in no place did the bench trying to make sure a speedy remedy to the maintenance enhancement of appellant number 2 and the maintenance to appellant number.