IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 Mat.Appeal.No. 809 of 2010(D) ---------------------------- OP.815/2007 of FAMILY COURT, MALAPPURAM .................... APPELLANT/PETITIONER ----------------------------------- SHEEBA PULIKKAL, D/O. UMMER, RABEECH MANZIL, NEAR MINI INDUSTRIES, EDAVANNA P.O., MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR SMT.M.T.SHEEBA RESPONDENT : RESPONDENT ------------------------- SHOUKATH ALI, S/O. KUNHAHAMMED HAJI, ANANHIKKAL HOUSE, VAYANASALA, PATHAPIRIYAM P.O., MALAPPURAM DISTRICT. ADV. SRI.K.M.JAMALUDHEEN FOR R1 SMT.LATHA PRABHAKARAN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A No.809 of 2010-C ***************************** Dated this the 21st day of October, 2011 JUDGMENT BASANT, J. Is the jurisdiction of the civil court (and consequently the Family Court) ousted by the enactment of Muslim Women (Protection of Rights on Divorce) Act (hereinafter referred to as `the M.W Act') ? This is the question that arises for consideration before us in this appeal. 2. We shall briefly refer to the factual matrix before we advert to the question of law. The claimant is the divorced wife of the respondent. After divorce, she preferred O.P.No.815 of 2007 claiming return of 80 sovereigns of gold ornaments worth Rs.5.6 lakhs and an amount of Rs.8.7 lakhs which according to her were allegedly being retained by her divorced husband illegally. In these circumstances, she claimed return of the gold ornaments/cash by her husband and preferred the claim before the Family Court. 3. The claim was resisted. Inter alia, it was contended that the Family Court has no jurisdictional competence to entertain the petition. It was contended that such a claim by the M.A.No.809 of 2010 2 divorced wife was maintainable only before the learned Magistrate having jurisdiction under Section 3 of the M.W Act. It was prayed, in these circumstances, that the original petition may be dismissed as not maintainable. 4. The Family Court considered the original petition along with a claim under Section 125 Cr.P.C preferred by the appellant claiming maintenance for two children born in the wedlock. By a common order, the maintenance claim was allowed in part, whereas the O.P was dismissed holding that the Family Court has no jurisdictional competence to deal with the matter. The O.P was dismissed with cost. 5. Before us the learned counsel for the appellant/divorced wife and the respondent/divorced husband have advanced their arguments. The learned counsel for the appellant contends that the civil court retains the jurisdiction under Section 9 of the Code of Civil Procedure to deal with a claim by the divorced wife for return of ornaments/cash retained by her husband even after the divorce. The learned counsel for the respondent/divorced husband on the contrary supports the conclusion of the Family Court and submits that the Family Court has no jurisdiction to deal with the subject matter of the M.A.No.809 of 2010 3 claim. 6. It will be advantageous straight away to extract the provisions of Section 3 of the M.W Act. We extract the same below: “3. 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 her before or after her 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 dates of birth of such children; M.A.No.809 of 2010 4 (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 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 has 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 M.A.No.809 of 2010 5 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 provision 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 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 M.A.No.809 of 2010 6 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 (2 of 1974) 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 M.A.No.809 of 2010 7 defence and the said sentence being imposed according to the provisions of the said Code.” (emphasis supplied) 7. The learned counsel for the respondent contends that the M.W Act must be reckoned as a code in itself enumerating the rights of a muslim woman which she is entitled to receive from her husband after the divorce is effected. Section 3 prescribes the rights as also the procedure for enforcement of those rights. The learned counsel contends that in these circumstances it is impermissible to travel outside Section 3 which prescribes the right as also the procedure for enforcement to enforce the claims which fall under Section 3. 8. The learned counsel for the appellant on the contrary contends that the appellant's claim is not for any rights created or conferred under the M.W Act. A muslim woman always had and has the right to claim return of ornaments/cash retained by her husband, even after the marriage was dissolved. That is a right which is available under common law. Wives in matrimony as well as the wives of terminated matrimony do have the right under the general law to claim amounts from their divorced husbands. The husband, who keeps such properties/cash of the M.A.No.809 of 2010 8 wife entrusted to him during matrimony and does not return the same, is bound to face an action under the civil law for recovery of such ornaments/cash. 9. In short, the learned counsel contends that under Section 3 of the M.W Act, no new right is created which was not hitherto available to the divorced muslim women. Section 3 of the M.W Act only prescribes the benefits which are available to a muslim woman on her divorce which the husband is liable to pay and discharge under the personal law applicable to the muslims. It would be idle to assume that Section 3 creates or confers any new right on a divorced muslim woman, contends counsel. 10. The learned counsel for the appellant first of all places reliance on Section 9 of the C.P.C and contends that under Section 9, the civil courts do have jurisdiction undoubtedly to try all suits of a civil nature except suits the cognizance of which is expressly or impliedly barred. We extract below Section 9 of C.P.C. “9. Courts to try all civil suits unless barred-- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits M.A.No.809 of 2010 9 of which their cognizance is either expressly or impliedly barred.” (emphasis supplied) 11. There is no dispute on the proposition that all suits of a civil nature can be entertained by the civil courts unless cognizance of such suits is either expressly or impliedly barred. That the claim is one of civil nature is not disputed. It is also accepted unambiguously that but for the M.W Act, the claim indisputably was maintainable before the civil Court. The question therefore is only whether cognizance of the suit by a civil court is expressly or impliedly barred. 12. There is no dispute and it is virtually accepted that there is no express provision in the M.W Act ousting the civil courts of their jurisdiction under Section 9 of the C.P.C. All that remains to be considered is whether there is any implied bar. We have been taken through the provisions of the M.W Act, particularly Sections 3 and 4. It is true that Section 3 opens with the words “Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to .......”. The non obstante clause according to us does not extinguish rights if any which were existing on the date of M.A.No.809 of 2010 10 enactment of the M.W Act. It only states that notwithstanding anything contained in any other law, the muslim women shall have the option made available under Section 3 to receive from her husband the benefits enumerated in clauses (a) to (d). There is also a mechanism, procedure and forum prescribed under Section 3 for enforcement of those rights. We are unable to understand the non obstante clause extracted above as amounting to an implied bar on the jurisdiction of the civil court. We have been taken through Sections 3 and 4 in detail. It is true that a muslim divorced woman is given the advantage of summary and expeditious procedure prescribed under Section 3 to recover the amounts/benefits enumerated under clauses (a) to (d) of Section 3(1). But there is no indication to suggest an implied bar which can be spelt out from the provisions of Section 3. 13. It is trite and it is not necessary for us to specifically advert to and quote precedents that a Court must be slow to see or infer any implied bar of the jurisdiction of the civil courts under Section 9 of the C.P.C. Satisfactory and compelling indications must be shown to be available to justify such exclusion/ouster of the jurisdiction of the civil courts. Suffice it M.A.No.809 of 2010 11 to say that we are unable to locate any such indications to suggest such an implied ouster of the jurisdiction of the civil court. 14. What we are really concerned about is whether there is exclusion of the jurisdiction of the civil courts. If the civil courts have jurisdiction to deal with the subject matter, certainly the Family Courts and not the conventional civil courts can entertain jurisdiction now after the enactment of the Family Courts Act. Sections 7 and 8 of the Family Courts Act conclude that question clearly. 15. We may advantageously extract and refer to Section 7 of the Family Courts Act: “Section 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 M.A.No.809 of 2010 12 (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 M.A.No.809 of 2010 13 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 and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment.” 16. Section 7(1) along with its explanations (a) to (g) clearly lays down that the jurisdiction of the district courts and subordinate civil courts to deal with the enumerated disputes is M.A.No.809 of 2010 14 taken over and vested in the Family Courts constituted under the Act. It is not disputed that but for the enactment of the Family Courts Act and the M.W Act civil court does have jurisdiction to deal with the subject matter of the instant suit/proceedings. What the Family Court exercises under Section 7(1) is nothing but the jurisdiction of ordinary civil courts and such jurisdiction of the Family Courts to deal with the jurisdiction which civil courts were exercising hitherto is clearly spelt out in Section 7 (1). 17. There cannot possibly be a dispute that the claim in the instant case would fall within the sweep of explanations (a) to (g) of Section 7. To be precise, Explanations (c) and (d) of 7 cover the instant dispute clearly. 18. The learned counsel for the respondent contends that the objects and reasons of the M.W Act have got to be considered in detail. To decide whether there is implied ouster/exclusive jurisdiction of the Family Courts, counsel contends that it is essential to advert to the objects and reasons of the M.W Act. The counsel has taken us in detail through the statement of objects and reasons published in the gazette of India dated 25.02.1986. This Bench on an earlier occasion had M.A.No.809 of 2010 15 to deal with the circumstances under which the M.W Act was born., in para.18 and 19 of the decision in Kunhimohammed V. Ayishakutty [2010(2) KLT 71], that question was considered in detail. We extract the said paragraphs 18 and 19 below: “18. This pronouncement of the Supreme Court (ie.Ahmed Khan V. Shah Bano Begum & Ors. [AIR 1985 SC 945]) led to a furore across the length and breadth of India. There was criticism that the interpretation of 'Mata' as maintenance by the Supreme Court is not correct and there was no obligation for the Muslim husband to pay any amount as maintenance under the personal and customary laws to claim extinguishment of liability under Sec.127(3)(b) of the Code. Mata had to be paid. There was no controversy on that at all. What ought to be the quantum of payment due as Mata was the only controversy. 19. The Act was born in this legal and factual background. The purpose of the M.A.No.809 of 2010 16 statute was very clear. What is the amount payable under Sec.127(3)(b) of the Code under the personal and customary law of the Muslims to claim absolution from liability under Sec.125 of the Code had to be clarified. The statement of objects and reasons of the Act makes it clear that the Parliament had only seized the opportunity to specify the rights which a divorced woman is entitled to at the time of divorce to protect her interest. We would like to clarify that in Shah Bano (supra) the controversy was only about the amount payable under Sec.127(3)(b) of the Code to justify the claim for absolution of the liability under Sec.125 of the Code. There was no controversy at all as to whether Sec.125 of the Code was applicable to the divorced Muslim wife or not. What payment was to be made under Sec.127 (3)(b) of the Code by a divorced Muslim husband to his divorced Muslim wife to avoid liability under Sec.125 of the Code was the only M.A.No.809 of 2010 17 question in Shah Bano (supra). The Parliament seized the opportunity to authentically resolve that controversy”. We are unable to agree that the M.W Act was enacted with the intention of creating or conferring any new rights on the divorced muslim women. It was not at any rate intended to extinguish any right which the muslim divorced women had prior to this Act. In 1973 when the amended Cr.P.C came into force, divorced wives of all religious denominations became entitled to the benefit of the provisions of the secular law to claim maintenance from their divorced husbands on proof that the divorced wives are unable to maintain themselves and their divorced husbands do have sufficient means. An exception was carved out in Section 127(3)(b) of Cr.P.C which declared that such liability to pay maintenance to the divorced wife shall cease if the whole of the sum payable under customary or personal law applicable to the parties was paid on such divorce. Subsequently there were a spate of litigations in various courts in India as to what would be the amount payable under the customary and personal law applicable to muslims on divorce. It is thereafter that the decisions in Bai Tahira V. Ali Hussain [AIR 1979 SC M.A.No.809 of 2010 18 362], Fuzlunbi V. Khader Vali [AIR 1980 SC 1730] and Ahmed Khan V. Shah Bano Begum & Ors. [AIR 1985 SC 945] were delivered by the Supreme Court. We repeat that the controversy was not whether maintenance should be paid or not under Section 125 Cr.P.C. The dispute was as to what were the amounts payable under customary and personal law [as intended by Section 127 (3)(b)] to claim absolution from the liability under Section 125 Cr.P.C. It is in this context that we again visit Section 3 of the M.W Act and note that the M.W Act does not create any new right or liability for muslim divorced couple. It only enumerates the amounts that are payable under customary and personal law which must be paid to claim absolution from liability under Section 127(3)(b). In the objects and reasons it has clearly been stated that the Parliament is seizing the opportunity to specify the right which a muslim divorced woman is entitled to at the time of divorce. We have no hesitation to agree that return of cash and ornaments retained by a divorced husband is not a new right created or conferred under Section 3. That right was always available to the muslim wives like other wives. The purpose and the object of the M.W Act was to prescribe the payments, discharge of which alone M.A.No.809 of 2010 19 would entitle the muslim husbands to claim absolution from the liability to pay maintenance to his divorced wife under Section 125 Cr.P.C. Return of properties of the divorced wife was prescribed under the M.W Act to be a responsibility of the divorced husband. 19. The right to claim return of the gold ornaments and cash from the husband was preexisting even prior to the enactment of the M.W Act in 1986. It is unnecessary to delve deeper into that undisputed question. It is agreed and conceded that even prior to the enactment of Section 3, the divorced muslim women like all other divorced women were entitled to claim return of such gold ornaments and cash illegally retained by their husbands. Principles of the law relating to trusts and analogous relationship would come into operation and even without resort to the personal law, under the general law of the land also such right was always available with the muslim women also. The intention of Section 3 was only to prescribe what payments must necessarily be made at the time of divorce to entitle a muslim divorced husband to claim absolution from the liability for payment of maintenance under Section 125 Cr.P.C. We reiterate that at the risk of repetition. We have M.A.No.809 of 2010 20 adverted to this aspect in detail in Kunhimohammed (supra). 20. The special excludes the general, it is contended. The learned counsel for the respondent advances detailed arguments pressing into service this general principle that the special would exclude the general. We have already referred to the scheme of the M.W Act. We are unable to locate any indications which suggest that the stipulations of Section 3 were intended to override the provisions of the general law entitling the wives to claim return of amounts/ornaments retained by their divorced husbands. 21. The learned counsel for the appellant places reliance on the decision of the Supreme Court in Raja Ram Kumar Bhai V. Union of India [AIR 1988 S.C 752]. The relevant observations appear in para.10 of the judgment. Justice M.N.Venkatachaliah speaking for the Bench makes the following lucid observations about the jurisdiction of the civil court in a situation like the instant one. “Para.10:“..................................................... ................................................ Generally M.A.No.809 of 2010 21 speaking, the broad guiding considerations are that wherever a right, not pre-existing in common-law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil court's jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil courts' jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence.” (emphasis supplied) M.A.No.809 of 2010 22 22. This passage in Rajaram (Supra) is extracted and followed by a subsequent decision of the Supreme Court in N.D.M.C. v. Satish Chand [AIR 2003 SC 3187]. Following the principle lucidly enumerated in the above decision of the Supreme Court, we find it absolutely safe to conclude that Section 3 does not create or confer any new