V.K. Shukla, J. - (1.) PRESENT writ petition in question has been filed questioning the validity of the decision dated 19.1.2010 wherein orders have been passed on the objection moved on behalf of Petitioner that matter should be transferred to the Family Judge as Magistrate has no competence or jurisdiction to try the same.
(2.) BRIEF background of the case as is reflected that Smt. Taliya Fatima @ Shama Parveen has filed case No. 2230 of 2008 under Sections / of the Muslim Women (Protection of Rights on Divorce) Act, 1986. On presentation of the aforesaid case in question objection had been filed on behalf of Petitioner contending therein that proceedings before Magistrate were not at all competent and maintainable and matter should be transferred to Family Judge. Said application in question has been considered and rejected. At this juncture present writ petition has been filed. Pleadings inter se parties have been exchanged and thereafter present writ petition has been taken up for final hearing and disposal with the consent of the parties. Mr. Vijay Prakash Pandey, Advocate appearing with Bimal Prasad, Advocate on behalf of Petitioner contended with vehemence that entire proceedings so undertaken before concerned Court are altogether void and with jurisdiction by Magistrate and in term of provision as contained under Sections , and of the Family Courts Act, 1984 it is only the Family Court which is entitled to adjudicate the matter as such usurpation of the jurisdiction by Magistrate is unjustifiable, as such proceedings are liable to be transferred to the Family Judge. Countering the said submission Mr. Ashish Kumar Dwivedi, Advocate on the other hand contended that proceedings under Muslim Women (Protection of Rights on Divorce) Act, 1986 are not at all cognizable by Family Judge as they do not fall within the scope and ambit of Sections , and of the Family Courts Act, 1984, as such writ petition as it has been framed and drawn is liable to be dismissed.
(3.) IN order to appreciate controversy which has been sought to be raised the provision of Sections , and of the Family Courts Act, 1984 are being looked into: Section . Jurisdiction - -(1) Subject to the other provisions of this Act, a Family Court shall - - (a) have and exercise all the jurisdiction exercisable by any district Court or 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 explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, 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 - -The suits and proceedings referred to in this Sub -section are suits and proceedings of the following nature, namely: (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; (d) a Suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise - - (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children ant parents) of the Code of Criminal Procedure, 1973 (2 of 1974); (b) such other jurisdiction as may be conferred on it by any other enactment." The Section consists of two parts. The first relates to civil jurisdiction and the other to the criminal jurisdiction but this too is limited to Chapter IX of Code of Criminal Procedure Besides this under Section a provision has been made for conferment of jurisdiction on the Family Court by any other enactment also. According to the Respondent her case would be covered by Explanation (c) of Section of the Act. The contention must unhesitatingly be rejected. Section . Exclusion of jurisdiction and pending proceedings - -Where a Family Court has been established for any area - (a) no district Court or any subordinate civil Court referred to in Sub -section (1) of Section shall, in relation to such area have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in Explanation to that Sub -section. (b) no Magistrate shall, in relation to such area have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973: (c) every suit or proceeding of the nature referred to in the Explanation to Sub -section (1) of Section and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 - - (i) which is pending immediately before the establishment of such Family Court before any Magistrate under the said Code, and (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established. shall stand transferred to such Family Court on the date on which it is established. Section . Act to have overriding effect - -The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Provision of Sections and of the Muslim Women (Protection of Rights on Divorce) Act, 1986 are also looked into. Section : Mahr or other properties of Muslim woman 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 before or after he 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 date 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 or her marriage or at any time thereafter according to Muslim Law; and (d) all the properties given to her before or at the time or marriage or after the 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 had not been made or paid or the properties referred to in Clause (d) of Sub -section (1) have not been delivered to a divorced woman on her divorce, she or any one 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 provisions 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 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 the 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 levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973, 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. 4. Order for payment of maintenance - -(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re -married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine 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 such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order: Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her: Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may thin fit to order. (2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in Sub -section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to Sub -section (1), the Magistrate may, by order direct the State of Wakf Board established under Section 9 of the Wakf Act, 1954, or under any other law for the time being in force in a State functioning in the area in which the woman resides, to pay such maintenance as determined by him under Sub -section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.;