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This post concerns the Supreme Court’s 18.6.2020 dual judgments in Rana Nahid alias Reshma alias Sana & Anr. v. Sahidul Haq Chisti. The division bench composed of R. Banumathi and Indira Banerjee JJ. had to decide an important question concerning the jurisdiction of family courts. Particularly, whether family courts established under the 1984 Family Courts Act have jurisdiction to try applications filed by divorced Muslim women under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 [“Muslim Women Act”].
Section 3, as shall be explained, contains the rights (such as maintenance) that a divorced Muslim woman is entitled to seek from her former husband. The question of jurisdiction arises since Section 3(2) of the Muslim Women Act provides that in case of a failure to pay maintenance and other sums, a woman may make an application to a Magistrate of first class for an order of payment.
In contrast, the provisions of Section 7 of the Family Courts Act, enacted two years before the Muslim women Act, are to the effect that a Family Court has the jurisdiction to hear all proceedings concerning maintenance.
Seemingly, while the Muslim Women Act vests jurisdiction in courts of Magistrates, the Family Courts Act instead designates family courts as the correct forum for such proceedings. In this case, the two judges of the bench reached conflicting views. While Banumathi J. held that Magistrates of first class have exclusive jurisdiction over such proceedings, Banerjee, J. instead held that family courts have exclusive jurisdiction. The matter was finally referred for review by a larger bench.
In this post, I explain that the larger bench must uphold Banerjee, J. ’s opinion, since it better accords to legislative intent with a harmonious reading of the two statutes. It is a much more enriching, comprehensive, and well-founded purposive interpretation, which addresses the shortcomings of Banumathi J.’s opinion. However, before proceeding, let us first understand importance of the reliefs that a Muslim woman can seek in this context.
The Rights of Divorced Muslim Women
Section 3 of the Muslim Women Act is a special provision meant for the benefit and protection of divorced Muslim women specifically. Under Section 3(1)(a), a divorced woman is entitled to a “reasonable and fair” provision as well as maintenance, which are to be made within the iddat period by her former husband. The former husband, therefore, has two distinct and separate obligations: first, to pay maintenance, and second, an additional “reasonable and fair” provision.
Further, the amount of maintenance to be paid also contemplates the woman’s needs in the future beyond the iddat period, as held in Danial Latifi & Anr. v. Union of India). This means that her former husband is required to make preparatory arrangements for her future in advance, while being obligated to pay it as a lump sum within the iddat period.
Moreover, a similar provision and maintenance has to be paid where the women herself maintains the children under Section 3(1)(b). She is also entitled to the payment of her mahr/dower and all the properties given to her before, during, and after her marriage (by her/her husband’s friends/relatives) under Section3(1)(c) and Section 3(1)(d).
Should the former husband be unable to make these payments, the onus then falls on his relatives, and thereafter, on the State Wakf Board under Section 4. Visibly, divorced Muslim women have extensive and detailed rights in this scheme. This makes the question of which court has jurisdiction especially significant, since rights are meaningless without knowing the right forum for their enforcement.
Banumathi J.’s judgment: narrow, textualist views
Section 7(1)(a) of the Family Courts Act states that a family court shall have all the jurisdiction exercisable by any district court or any subordinate civil court, provided that the dispute is of a nature enumerated in its Explanation. As mentioned earlier, the Explanation includes proceedings concerning maintenance. However, Banumathi J.’s judgment emphasises the bare text of Section 3(2) of the Muslim Women Act, which clearly provides that applications can be made only to a Magistrate of first class (¶20). Accordingly, she holds that no application under Section 3 of the act is maintainable before family courts.
Further, Section 7(2)(b) provides for the conferment of additional jurisdiction on family courts by other enactments. This is an enabling provision by which the legislature can enlarge the jurisdiction of family courts (¶21). However, to do so, Banumathi J. observes that the jurisdiction must be specifically conferred and cannot be assumed to be conferred (¶22).
The judgment notes that the Muslim Women Act was enacted two years after the Family Courts Act. This indicates that the legislature could have, but consciously abstained from enlarging the family courts’ jurisdiction by limiting it to First Class Magistrates in the former act. Therefore, she held that First Class Magistrates have exclusive jurisdiction for such applications (¶27).
The crux of this judgment is that had the legislature intended to confer such jurisdiction on family courts, it would have done so explicitly. This view no doubt has its merits. In fact, identical conclusions have been previously reached, for instance, by the Allahabad High Court in Anjum Hasan Siddiqui v. Smt. Salma B., AIR 1992 All 322 (¶9) and by the Bombay High Court in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh, 2000 (3) Mh.L.J. 555 (¶61). Regardless, this view has certain noteworthy omissions and shortcomings which Banerjee, J. ’s judgment addresses.
Banerjee, J. ’s judgment: purposive interpretation
First and most importantly, Banerjee, J. ’s judgment acknowledges the non-obstante clause contained in Section 20 of the Family Courts Act (¶52). Section 20 provides that the provisions of the Family Courts Act shall have effect notwithstanding anything inconsistent contained in other enactments “for the time being in force”.
Banerjee, J. observes that such non-obstante clauses cannot be construed narrowly to refer to only those statutes which were in force when the Family Courts Act was enacted (¶53). Rather, it also contemplates subsequently enacted statutes such as the Muslim Women Act, as long as Section 20 is in operation.
With this backdrop, it is important to consider Section 8(c) of the Family Courts Act, by virtue of which any proceedings that are pending before any court (including Magistrates) shall be transferred to a family court established in that area. These proceedings include any dispute instituted under Chapter IX of the CrPC (concerning maintenance) and proceedings of the nature enumerated in Explanation to Section 7(1).
Banerjee, J. observes that since the Family Courts Act is a secular act, this Explanation contemplates any and all maintenance proceedings regardless of one’s religion (¶¶35, 38).
For this reason alone, in my view, an application for maintenance under Section 3 of the Muslim Women Act can indeed be brought before a family court. Even if one subscribes to an overwhelmingly textualist interpretation, the omission of this important non-obstante clause in Banumathi J.’s judgment is regrettable. Interestingly, while this isn’t noted by Banerjee, J., the Muslim Women Act does not contain a similar non-obstante clause. This further strengthens her conclusion that the Family Courts Act’s provisions will supersede the Muslim Women Act’s provisions, wherever they are inconsistent.
However, Banerjee, J. ’s opinion is much more enriching in two inter-linked aspects. First, in locating legislative intent in the entire scheme of the Family Court’s Act instead of a few provisions. Second, in her consideration of alternative interpretations akin to Banumathi J.’s as violative of Article 14.
The Special Nature Of Family Courts
Banerjee, J. observes that the Family Courts Act was primarily enacted to facilitate the speedy resolution of disputes related to marital affairs or matters related thereto (¶31). To ensure this, proceedings in family courts depart from rigid rules of procedure and evidence (¶32) and emphasise conciliation between the parties.
This makes proceedings before family courts radically different from ordinary civil proceedings (¶33) as family courts have the power to devise their own procedure for adjudicating disputes. Indeed, she observes that the atmospheres in family courts is much more informal and less intimidating than regular civil and criminal courts (¶39).
Section 5 of the Family Courts Act enables social organisations and persons specialising in family matters to assist a family court wherever this results in a more effective exercise of the court’s jurisdiction (¶40). Similarly, Section 6 provides for counsellors and Section 12 for professional experts to assist the court in discharging its duties (¶44).
Furthermore, Section 9 obliges the court to persuade the parties to reach settlements wherever possible. Unlike ordinary courts, family courts are also obliged to adjourn proceedings wherever such settlements are possible (¶41).
In fact, Section 13 of the act provides that no party to a dispute will be entitled to legal representation as a right. Family courts may seek the assistance of an amicus curae if needed. This ensures, unlike in ordinary proceedings, that the parties are equally poised and that an underprivileged party’s interests are not jeopardised if the other party is able to afford the “best brains” of the legal fraternity (¶45).
Noting many similar considerations in this secular act’s scheme that benefit women in such disputes, Banerjee, J. proceeds to prove that any interpretation that deprives a Muslim woman of this special scheme is unconstitutional insofar it violates Article 14.
Banumathi J.’s interpretation as violative of equality
First, Banerjee, J. acknowledges India’s international obligations contained in international law and India’s international attitude towards adopting a woman friendly legal system and ensuring basic rights without religious discrimination (¶¶57-60).
She notes that Muslim personal laws governed by Shariat law are indeed protected under religious freedom from challenges of unconstitutionality. However, she observes that procedural laws, including the Muslim Women Act clauses on jurisdiction, do not enjoy the same immunity as such substantive personal laws (¶62).
Thereafter, she cites an impressive catena of cases (¶¶77-82) to the effect that procedural laws are as open to challenge on the ground of constitutional invalidity as substantive laws. Accordingly, she holds that a rigid and constrained reading of the two acts that constricts a divorced Muslim woman from applying to a family court for maintenance is impermissible in law (¶75).
This is since it offends Article 14 by singling out Muslim women and denying them equal access to the friendly family courts as women from other religions (¶¶96 & 99).
Banerjee, J.’s then recalls Venkatarma Aiyar, J.’s views in Titarth Singh v. Bachittar Singh, AIR 1955 SC 830, which have frequently been quoted with approval by the Supreme Court since. Specifically, Aiyar, J. observed that where an interpretation leads to an absurdity, unintended hardship or injustice not intended by the enactment, or a manifest contradiction with its purpose, then courts may construct the statute’s language, even if it modifies it.
For these reasons, she finally concluded that a family court has exclusive jurisdiction to hear maintenance applications by divorced Muslim women under the Muslim Women act (¶107).
Banerjee J.’s reasonings and holdings are far more comprehensive than Banumathi J.’s judgment and previous judgments of different high courts. From a textualist view, it is correct since it puts effect to the non-obstante clause of the Family Courts Act.
From a purposive view, it ensures that Muslim women are not denied access to the friendly and speedy proceedings of family courts. And from a constitutional view, it ensures that the right to equality of divorced Muslim women is not offended.
For these reasons, it deserves to be upheld by whichever larger bench reviews this decision with finality. One hopes that the Supreme Court eases the difficulties of divorced Muslim women, especially since a speedy resolution of such disputes is the need of the hour.
(The author is a third-year law student at Jindal Global Law School)