AMJUM HASAN SIDDIQUI Vs. SALMA B

JUDGEMENT

(1.) An order passed by the Family Court repelling the appellant's plea regarding lack of Family Courts jurisdiction to decide respondent's application under S. 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 S. 7 thereof.

(2.) We have considered the rival submission and we are of the view that the contention of the appellant must prevail.

(3.) Admittedly the proceedings have been initiated on an application captioned under S. 3 of the 1986 Act. It is true that mere caption cannot be conclusive of the latter 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 S. 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) to (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 husband or his friends. ................"