N. N. Mithal, J. - (1.) AN order passed by the Family Court repelling the appellant plea regarding lack of Family Court's jurisdiction to decide respondent's application under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act hereafter) is under challenge in this appeal. The appellant (husband) before us has urged that such an application was not entertainable by the Family Court and the impugned order was illegal for want of jurisdiction. This submission is countered by the respondent on the plea that the Family Court had jurisdiction in the matter under section 7 thereof.
(2.) WE have considered the rival submission and we are of the view that the contention of the appellant must prevail. Admittedly the proceedings have been initiated on an application captioned under section 3 of the 1986 Act. It is true that mere caption cannot be conclusive of the matter and substance of the applications is more material and important. The allegations made in the application are that the parties were married on 4-10-83 and the appellant had divorced her on 25-2-91 but she had neither been paid the dower money nor the articles given to her on the occasion of her marriage had been returned back to her and in the alternative the price thereof has also not been paid by the appellant These allegations leave no room for doubt that the application was essentially one under section 3 of the 1986 Act, relevant portion of clause (i) whereof reads as under : 3. Mahr or other properties of Muslim woman to be given to her at the time of divorce-(i) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to. (a)........ (b)........ (c) An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and (d) all the properties given to her- before or at the time of marriage or after her marriage by her relatives; or friends or the husband or any relatives of the bu*bar.d or his friends. The point that remains to be seen is whether an application under section 3, 1986 Act can be entertained by the Family Court or whether it lies within the exclusive jurisdiction of She concerned Magistrate as provided by the Act itself. The respondent vehemently urged that the application could be entertained only by the Family Court in view of section 7 of the 1984 Act. We may therefore first consider section 7 of the Family Courts Act 1984. "7. 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 maintmance; (g) a suit or proceeding in relati?n 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 and 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 CrPC. Besides this under section 7 (2) (b) 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 7 (i) of the Act. The contention must unhesitatingly be rejected.
(3.) SECTION 7 (1) (a) confers the entire jurisdiction hitherto exercised by any district court or any subordinate civil court in suits or proceedings relating to matters mentioned in clauses (a) to (g) of the explanation. Subclause (b) creates a legal fiction endowing upon the family courts the status of the district court or subordinate civil court. Similarly section 7 (2) (a) confers the powers and jurisdiction hither to exercisable by a first class Magistrate on the Family Court in relation to chapter IX of the Criminal Procedure Code, 1973. Section 7 (2) (b) however relates to conferment of any additional jurisdiction on the Family Courts 'by other enactments. This provision is in the nature of an enabling provision by which legislature can enlarge the Courts jurisdiction.;