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1994 DIGILAW 103 (ORI)

ALLAUDDIN v. SHAMIMA AKHTARI

1994-04-26

ARIJIT PASAYAT

body1994
ARIJIT PASAYAT, J. ( 1 ) THE petitioner questions jurisdiction of the Family Court set up under the Family Courts Act, 1984 (in short, the 'act') to deal with an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short, the 'divorce Act' ). ( 2 ) BACKGROUND facts giving rise to the application before this Court are as follows : an application was filed by Shamima Akhtari (opposite party No. 1 in this application) under Section 3 of the Divorce Act claiming maintenance from petitioner for dower due, reasonable provisions for maintenance as part of dower due, return of gifts and for maintenance of a child born to them for the period between date of complaint, i. e. , 28-12-1990 and July, 1991, the expected date of delivery of the baby. It was alleged in the petition that on 28-12-1990 the petitioner divorced opp. party No. 1 in the presence of Choukidar of the locality, who informed opp. party No. 1 regarding the said divorce. Due to such irrevocable divorce opp. party No. 1 was no more wife of the petitioner. Since the dower, articles given and maintenance during the period of iddat after the period of divorce was not paid, the application was filed in the court of subdivisional Judicial Magistrate, Panposh (in short, 'sdjm') which was subsequently transferred to the court of Judge, Family Court Rourkela. The petitioner appeared before the latter court, filed his show-cause and while admitting the divorce inter alia refuted the other allegations. The maintainability of the proceeding before Family Court was challenged. However, subsequently the petitioner did not appear in the proceeding, and the learned Judge decided the matter ex parte and directed payment of Rs. 500. 00 as cost of litigation, Rs. 2500. 00 per month for the period of Iddat from 28-12-1990, and maintenance to the child at the rate of Rs. 150. 00 per month for a period of two years with effect from the date of divorce, i. e. , 28-12-1990, and also payment of maintenance for a period of two years to the said child with effect from 9-7-1991. Since the petitioner did not pay, non-bailable warrant of arrest was issued by the learned Judge, Family Court. 150. 00 per month for a period of two years with effect from the date of divorce, i. e. , 28-12-1990, and also payment of maintenance for a period of two years to the said child with effect from 9-7-1991. Since the petitioner did not pay, non-bailable warrant of arrest was issued by the learned Judge, Family Court. ( 3 ) THE petitioner assails legality of the proceeding before the Family Court on the ground that the Divorce Act being a special statute providing jurisdiction to a Judicial Magistrate of the first class, the Family Courts Act has no application, and it has no jurisdiction to entertain the application under Section 3 of the Divorce Act. ( 4 ) ACCORDING to Mr. N. C. Dey, learned counsel appearing for the petitioner, jurisdiction of the Judicial Magistrate, first class under Section 7 of the Divorce Act does not fall within any of the categories provided in Section 7 of the Act. Even though the jurisdiction of the Judicial Magistrate, first class while entertaining an application under Section 3 of the Divorce Act is civil in nature, that jurisdiction will not stand transferred to the Family Court. This has been specifically conferred on the Judicial Magistrate, first class and does not come within Chapter IX of the Code of Criminal Procedure, 1973 (in short, the 'crpc' ). ( 5 ) ACCORDING to Mr. R. K. Mohanty, learned counsel for opp. party No. 1, Section 7 of the Act deals with the jurisdiction of the Family Court. The suits or proceedings referred to in Sub-Section (1) are suits or proceedings of different nature, included in which is a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them (Explanation (c) ). It is further submitted that in Sub-Section (2) it is provided that the Family Court shall also have and exercise jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Crpc. ( 6 ) SECTION 7 of the Act is the pivotal provision for determination of controversy. The same reads as follows : "7. ( 6 ) SECTION 7 of the Act is the pivotal provision for determination of controversy. The same reads as follows : "7. Jurisdiction - (1) Subject to 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 proceedings 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 or 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. "section 7 (1) (a) provides that the Family Court shall 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. Section 7 consists of two parts. The first related to civil jurisdiction and the other relates to criminal jurisdiction. The latter is limited in its operation to Chapter IX of Cr. P. C. Section 7 (1) (a) confers the entire 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 clauses (a) to (g) of the Explanation by operation of a deeming provision in Clause (b) of Sub-Section (1) of Section 7, the Family Court is deemed 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, for the purpose of exercising such jurisdiction under such law as referred to in clause (a) of Sub-Section (1) of Section 7. Similarly clause (a) of Sub-Section (2) provides that Family Court shall have and exercise jurisdiction exercisable by a Judicial Magistrate, first class or Family Court in regard to Chapter IX, Cr. P. C. An application under Section 3 of the Divorce Act cannot be said to be covered by Section 7 as Sub-Section (1) of the said provision has application only when a suit or proceeding is of the nature envisaged in clauses (a) to (g) of the Explanation, and the matter was adjudicable by the District Court or any subordinate civil court. An application under Section 3 of the Divorce Act is neither a suit nor a proceeding, nor is a matter adjudicable by the civil court. ( 7 ) IT is urged by learned counsel for the opposite parties that the expression 'proceeding' is wide enough to engulf an application under Section 3. Though the submission is attractive, it is clearly unacceptable, because the context in which the word 'proceeding' has been used in juxta position to the word 'suit' indicates that the proceeding also has to be one akin in a suit, or related to a suit. It cannot extend to a proceeding of a criminal nature. Though the submission is attractive, it is clearly unacceptable, because the context in which the word 'proceeding' has been used in juxta position to the word 'suit' indicates that the proceeding also has to be one akin in a suit, or related to a suit. It cannot extend to a proceeding of a criminal nature. Similarly no application under Section 3 lies to the District Court or subordinate civil court. The expression 'district Court or subordinate civil court' clearly indicates that legislature wanted that the disputes of civil nature are encompassed by Sub-Section (1) of Section 7. So far as Section 7, Sub-Section (2) is concerned, it has to be noticed that clauses (a) and (b) of Sub-Section (2) deal with two different aspects. The first deals with the jurisdiction exercisable by a Magistrate of the first class under Chapter IX, Cr. P. C. while the latter deals with such other jurisdiction as may be conferred with it by any other enactment. ( 8 ) IT is submitted by the learned counsel for the opposite parties that the jurisdiction can be deemed to have been conferred by Section 3 of the Divorce Act. The plea is unsound. The expression 'conferred on it' used in clause (b) of Section 2 of the Act has to be read along with the expression 'by any other enactment'. The jurisdiction has to be specifically conferred and cannot be deemed to have been conferred. There is no provision in the Divorcee Act which lends support to the plea. On the other hand, the Divorce Act enacted subsequent to the Act has by Sub-Section (2) of Section 3 provides for an application to be made to a Magistrate. The Family Court, therefore, has no jurisdiction to deal with the matter, and the proceeding before it is misconceived. The orders passed in the proceeding are without jurisdiction. The matter shall be dealt with by the learned SDJM, Panposh. ( 9 ) THE application is allowed. Application allowed. .