LexRANA NAHID @ RESHMA @ SANA & ANR. versus SAHIDUL HAQ CHISTI
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A B C D E F G H 324 SUPREME COURT REPORTS [2020] 7 S.C.R. RANA NAHID @ RESHMA @ SANA & ANR. v. SAHIDUL HAQ CHISTI (Criminal Appeal No. 192 of 2011) JUNE 18, 2020 [R. BANUMATHI AND INDIRA BANERJEE, JJ.] Code of Criminal Procedure, 1973 – Chapter IX- ss.125-128 – Petition u/s.125, by divorced Muslim woman – Converted to application u/s.3, 1986 Act by Family Court – Permissibility of – Appellant no.1 and respondent were married as per Muslim rites – Appellant no.2-son was born out of the wedlock – Alleging cruelty against appellant no.1, appellants filed petition u/s.125, CrPC – Family Court treated it as application u/s.3, 1986 Act and directed respondent to pay maintenance – Order to the extent converting the petition u/s.125, CrPC into application u/s.3 of the 1986 Act, set aside by High Court – On appeal, held: Per R. Banumathi, J. Family Court has no jurisdiction to entertain a petition u/ss.3 and 4, 1986 Act and cannot convert the petition for maintenance u/s.125, Cr.P.C. to one u/s.3 or s.4, 1986 Act – Per Indira Banerjee, J. (Dissenting) Family Court had jurisdiction to convert the application of appellant u/s.125, CrPC into an application u/s.3, 1986 Act for Muslim Women and to decide the same –Muslim Women (Protection of Rights on Divorce) Act, 1986 – ss.2-5, 7 – Family Courts Act, 1984 – ss.3, 5-10, 12-14, 16, 18, 20 – Constitution of India – Arts.14, 15 – Interpretation of Statutes – Purposive Interpretation; Casus Omissus – Code of Civil Procedure, 1908 – Evidence Act, 1872 – International Convention / Treaties – International Covenant for Civil and Political Rights (ICCPR); Convention on the Elimination of All Forms of Discrimination against Women 1979. Directing the matter to be placed before Hon’ble the Chief Justice of India for referring the matter to the Larger Bench, the Court Referring the matter to larger Bench, the Court HELD: PER R. BANUMATHI, J. 1.1 Muslim Women (Protection of Rights on Divorce) Act, 1986 does not deviate itself from the purpose, object and scope of the provisions of maintenance under Criminal Procedure Code. [2020] 7 S.C.R. 324 324 A B C D E F G H 325 The provisions of the Act are not inconsistent with the provisions of Chapter IX of the Code. The provision of this enactment provides remedies beneficial to the Muslim women divorcee by making the former husband liable to provide the divorced woman with reasonable and fair provision in addition to providing maintenance and where the husband fails to comply with the order without sufficient cause, the Magistrate may issue warrant for levying the amount of maintenance and may sentence him to imprisonment for a term which may extend to one year. The near relatives of the woman are also made liable under Section 4 of the Act. In case, the relatives are not in a position to pay her, the State Wakf Board is also made liable to provide maintenance. While the Criminal Procedure Code provides the relief of maintenance only, the Act of 1986 furnishes to divorced woman, additionally, ‘a reasonable and fair provision’, the relief of recovery of dower and return of marital gifts. [Para 11] [334-F-H][335-A-B] 1.2 Section 3 of 1986 Act opens with the words “notwithstanding anything contained in any other law for the time being in force,” a divorced woman shall be entitled to rights enumerated in clauses (a) to (d) of Section 3(1) of 1986 Act. Muslim Women Protection Act may have conferred more rights but the Act confers these rights notwithstanding anything contained in Section 125 Cr.P.C. The non-obstante clause has to be understood fairly and reasonably. The non-obstante clause cannot be lightly assumed to bring in the effect of supersession. It should not be allowed to demolish or extinguish the existing right unless the legislative intention is clear, manifest and unambiguous. Section 5 of the Muslim Women’s Protection Act gives divorced Muslim couples “an option to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973” which they could jointly exercise at the first hearing of the case under the Act. Section 5 of the Act enables the parties at the stage of first hearing, to withdraw from the applicability of the Muslim Women’s Protection Act and be governed by the provisions of Criminal Procedure Code. Otherwise, the Magistrate has to deal with the application as per the provisions of the Muslim Women Protection Act. Section 7 of the Muslim Women Protection Act deals with Transitional Provisions. Only
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