RANA NAHID @ RESHMA @ SANA & ANR. versus SAHIDUL HAQ CHISTI
[2020] 7 S.C.R. 324, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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RANA NAHID @ RESHMA @ SANA & ANR.
v.
SAHIDUL HAQ CHISTI
(Criminal Appeal No. 192 of 2011)
JUNE 18, 2020
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973 – Chapter IX- ss.125-128
– Petition u/s.125, by divorced Muslim woman – Converted to
application u/s.3, 1986 Act by Family Court – Permissibility of –
Appellant no.1 and respondent were married as per Muslim rites –
Appellant no.2-son was born out of the wedlock – Alleging cruelty
against appellant no.1, appellants filed petition u/s.125, CrPC –
Family Court treated it as application u/s.3, 1986 Act and directed
respondent to pay maintenance – Order to the extent converting the
petition u/s.125, CrPC into application u/s.3 of the 1986 Act, set
aside by High Court – On appeal, held: Per R. Banumathi, J. Family
Court has no jurisdiction to entertain a petition u/ss.3 and 4, 1986
Act and cannot convert the petition for maintenance u/s.125, Cr.P.C.
to one u/s.3 or s.4, 1986 Act – Per Indira Banerjee, J. (Dissenting)
Family Court had jurisdiction to convert the application of appellant
u/s.125, CrPC into an application u/s.3, 1986 Act for Muslim Women
and to decide the same –Muslim Women (Protection of Rights on
Divorce) Act, 1986 – ss.2-5, 7 – Family Courts Act, 1984 – ss.3,
5-10, 12-14, 16, 18, 20 – Constitution of India – Arts.14,
15 – Interpretation of Statutes – Purposive Interpretation; Casus
Omissus – Code of Civil Procedure, 1908 – Evidence
Act, 1872 –
International Convention / Treaties – International Covenant for
Civil and Political Rights (ICCPR); Convention on the Elimination
of All Forms of Discrimination against Women 1979.
Directing the matter to be placed before Hon’ble the Chief
Justice of India for referring the matter to the Larger Bench, the
Court
Referring the matter to larger Bench, the Court
HELD: PER R. BANUMATHI, J.
1.1 Muslim Women (Protection of Rights on Divorce) Act,
1986 does not deviate itself from the purpose, object and scope
of the provisions of maintenance under Criminal Procedure Code.
[2020] 7 S.C.R. 324
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The provisions of the Act are not inconsistent with the provisions
of Chapter IX of the Code. The provision of this enactment
provides remedies beneficial to the Muslim women divorcee by
making the former husband liable to provide the divorced woman
with reasonable and fair provision in addition to providing
maintenance and where the husband fails to comply with the order
without sufficient cause, the Magistrate may issue warrant for
levying the amount of maintenance and may sentence him to
imprisonment for a term which may extend to one year. The near
relatives of the woman are also made liable under Section 4 of
the Act. In case, the relatives are not in a position to pay her, the
State Wakf Board is also made liable to provide maintenance.
While the Criminal Procedure Code provides the relief of
maintenance only, the Act of 1986 furnishes to divorced woman,
additionally, ‘a reasonable and fair provision’, the relief of
recovery of dower and return of marital gifts. [Para 11]
[334-F-H][335-A-B]
1.2 Section 3 of 1986 Act opens with the words
“notwithstanding anything contained in any other law for the time
being in force,” a divorced woman shall be entitled to rights
enumerated in clauses (a) to (d) of Section 3(1) of 1986 Act. Muslim
Women Protection Act may have conferred more rights but the
Act confers these rights notwithstanding anything contained in
Section 125 Cr.P.C. The non-obstante clause has to be understood
fairly and reasonably. The
non-obstante clause cannot be lightly
assumed to bring in the effect of supersession. It should not be
allowed to demolish or extinguish the existing right unless the
legislative intention is clear, manifest and unambiguous. Section
5 of the Muslim Women’s Protection Act gives divorced Muslim
couples “an option to be governed by the provisions of Sections
125 to 128 of the Code of Criminal Procedure, 1973” which they
could jointly exercise at the first hearing of the case under the
Act. Section 5 of the Act enables the parties at the stage of first
hearing, to withdraw from the applicability of the Muslim Women’s
Protection Act and be governed by the provisions of Criminal
Procedure Code. Otherwise, the Magistrate has to deal with the
application as per the provisions of the Muslim Women Protection
Act. Section 7 of the Muslim Women Protection Act deals with
Transitional Provisions. Only a Magistrate of the First Class
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exercising jurisdiction under the Code can dispose of the
application in accordance with the provisions of the Muslim
Women Protection Act. [Paras 15, 16][338-E-G][339-A-E]
Danial Latifi and Another v. Union of India (2001) 7
SCC 740 : [2001] 3 Suppl. SCR 419; Shabana Bano v.
Imran Khan (2010) 1 SCC 666 : [2009] 16 SCR 190 –
referred to.
1.3 The Family Courts Act, 1984 was enacted in public
interest for the establishment of Family Courts for the speedy
settlement of family disputes and it came into force on 14.09.1984.
The jurisdiction of Family Courts is provided for in Section 7 of
the Act. The provisions of the Muslim Women’s Protection Act
do not confer any jurisdiction on the Family Court. Section 3(2)
of the Muslim Women’s Protection Act provides that the
application may be made to a Magistrate; but not to the Family
Court. Since the Muslim Women’s Protection Act, 1986 does
not refer to the Family Court or does not say that an application
under Sections 3 and 4 can be filed before the Family Court, the
Family Court cannot entertain the application of divorced Muslim
woman under Sections 3 and 4 of the Muslim Women’s Protection
Act, 1986. [Paras 17, 20 and 23][339-E-F][341-F][345-B]
Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh
and Others 2000 (3) Mh.L.J. 555 – approved.
Anjum Hasan Siddiqui v. Smt. Salma B. AIR 1992 All
322 – referred to.
1.4 The application under Section 3(2) of the Act of 1986
by the
divorced wife has to be filed before the competent
Magistrate having jurisdiction if she claims maintenance beyond
the iddat period. Even if the Family Court has been established
in that area, the Family Court not having been conferred the
jurisdiction under Section 7 of the Family Courts Act, 1984 to
entertain an application filed under Section 3 of the Muslim
Women Protection Act, the Family Court shall have no jurisdiction
to entertain an application under Section 3(2) of the Act of 1986.
The Family Court, therefore, cannot convert the petition for
maintenance under Section 125 Cr.P.C. to one under Section 3
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or Section 4 of the Act of 1986. The High Court rightly held that
the Family Court has no jurisdiction to entertain the petition under
Sections 3 and 4 of the Act of 1986 and that the Family Court
cannot convert the petition for maintenance under Section 125
Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. No
reason is found warranting interference with the impugned order.
[Paras 25, 26][345-E-H]
Iqbal Bano v. State of Uttar Pradesh & Anr. (2007) 6
SCC 785 : [2007] 7 SCR 949 – distinguished.
Mohd. Ahmed Khan v. Shah Bano Begum and Others
(1985) 2 SCC 556 : [1985] 3 SCR 844; Danial Latifi
and Another v. Union of India (2001) 7 SCC 740 :
[2001] 3 Suppl. SCR 419; Shabana Bano v. Imran Khan
(2010) 1 SCC 666 : [2009] 16 SCR 190 – referred to.
PER INDIRA BANERJEE, J. (DISSENTING)
1.1 The Family Courts Act is a secular statute, which applies
to matters contemplated therein, irrespective of the religion of
the litigating parties. Section 3 of the Family Courts Act provides
for establishment of Family Courts, after consultation with the
High Court. On a reading of Section 7(1) along with explanation
(f) to Section 7(1) of the Family Courts Act, it is patently clear
that the Family Court, established under Section 3 of the Family
Courts Act, is clothed with the jurisdiction and powers exercisable
by a District Court or any Subordinate Civil Court, under any law
for the time being in force, to entertain and decide any suit or
proceeding for
maintenance, which would include an application
under Section 3 of the 1986 Act for Muslim Women. [Paras 7,
10][347-C][349-C-D]
1.2 Section 20 of the Family Courts Act, with its non-
obstante clause gives the provisions of the Family Courts Act
overriding effect, over any other law, which would include the
1986 Act for Muslim Women. The Family Courts Act is to have
effect, notwithstanding anything inconsistent therewith, contained
in any other law, for the time being in force, or in any instrument
having effect, by virtue of any law other than the Family Courts
Act. The Family Courts have jurisdiction in respect of the matters
specified in the Explanation (f) of Section 7(1), irrespective of
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religion or faith of the parties to the litigation. Wherever a Family
Court is constituted, such Family Court not only exercises the
jurisdiction and powers of any District Court or Subordinate Civil
Court in respect of suits and other proceedings of the nature
referred to in the Explanation (f) to Section 7(1), that is, suits and
other proceedings for maintenance, it also exercises the
jurisdiction and powers of a Magistrate of the First Class under
Chapter IX of the Cr.P.C. [Paras 24, 27][351-F-G][352-D-E]
1.3 Section 125 of the Cr.P.C. is a beneficial piece of
legislation, specially enacted as a measure of social justice, the
dominant purpose whereof is to ensure that a wife including a
divorced wife, a child or a parent is not driven to penury and
vagrancy. The Section provides a simple speedy remedy, inter
alia, for a wife including a divorced wife, who is neglected by her
husband/ex husband, even though he has sufficient means to
maintain her. Such a wife or divorced wife can obtain an order of
maintenance from a Magistrate. The 1986 Act for Muslim Women
has been enacted to protect the rights of Muslim women who
have been divorced by, or have obtained divorce from, their
husbands and to provide for matters connected therewith or
incidental thereto. [Paras 35, 39][355-E-G][356-D-E]
Vijay Kumar Prasad v. State of Bihar (2004) 5 SCC
196; Zohara Khatoon and Anr. v. Mohd. Ibrahim  (1981)
2 SCC 509 : [1981] 2 SCR 910;
Md. Ahmed Khan v.
Shah Bano Begum and Others (1985) 2 SCC 556 :
[1985] 3 SCR 844 – referred to.
1.4 There can be no dispute that the Family Court alone
has jurisdiction in respect of personal and family matters relating
to women and men, irrespective of their religion. Family matters
of Muslim women pertaining inter alia to marriage, divorce etc.
are decided by Family Courts, as also claims of Muslim wives to
maintenance under Section 125 of the Cr.P.C. There could be no
reason to single out divorced Muslim wives to deny them access
to the Family Courts, and that was never the legislative intent of
the 1986 Act for Muslim Women. Equality before the law and
equal protection of the laws envisaged in Article 14 of the
Constitution of India applies as much to procedural laws as to
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substantive laws. The non-obstante Clause in Section 3(1) of the
1986 Act for Muslim Women provides, in effect and substance,
that a divorced Muslim woman would only be entitled to
maintenance as provided in Section 3(1) of the 1986 Act for
Muslim Women, notwithstanding any other law including Section
125 of the Cr.PC. [Paras 48, 49 and 55][359-G-H][360-A-B]
[362-E-F]
State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC
75 : [1952] SCR 284; D.K. Yadav v. J. M. A. Industries
Ltd. (1993) 3 SCC 259 : [1993] 3 SCR 930; Lachhman
Dass v. State of Punjab AIR 1963 SC 222 : [1963] 2
SCR 353; Meenakshi Mills v. Vishvanatha Sastri AIR
1955 SC 13 : [1955] 1 SCR 787; Budhan Choudhry v.
State of Bihar AIR 1955 SC 191 : [1955] 1 SCR 1045
– followed.
1.5 A divorced Muslim woman cannot claim maintenance
under Section 125 of the Cr.P.C. from her husband after the
enactment of the 1986 Act for Muslim Women. However, under
Section 3 read with Section 4 of the 1986 Act for Muslim Women,
a divorced Muslim woman is entitled to an order of maintenance,
if she is unable to maintain herself after the Iddat period and has
not remarried. Section 5 of the 1986 Act for Muslim Women
provides that a divorced woman and her former husband might
decide by an affidavit or any other declaration in writing, that
they would prefer to be governed by the provisions of Section
125 to 128 of the Cr.P.C. Section 7 of the Family Courts Act
expressly confers jurisdiction to a Family Court to exercise
all
jurisdiction exercisable by any District Court or any Subordinate
Civil Court, under any law for the time being in force, in respect
inter alia of all suits and proceedings for maintenance. The Family
Court has also expressly been conferred with jurisdiction
exercisable by a Magistrate of the First Class under Chapter IX
of the Cr.P.C relating to maintenance. Under Section 7(2)(b) of
the Family Courts Act, the Family Court may exercise such other
jurisdiction as may be conferred on it by any other enactment.
The Family Courts Act, enacted long before enactment of the
1986 Act for Muslim Women, obviously did not contemplate the
later legislation. There is, therefore, no specific mention of the
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1986 Act for Muslim Women in the Family Courts Act.
[Paras 56, 58 and 59][362-G-H][363-B-D]
1.6 The 1986 Act for Muslim Women is essentially a civil
law, which makes provisions for maintenance for divorced Muslim
women and not a criminal statute. The 1986 Act for Muslim
women does not contain any penal provision for any default which
enables a divorced Muslim Woman to apply for maintenance under
the said Act. The penal provision of the 1986 Act for Muslim
Women is only to enforce compliance with an order under Section
31 of the said Act. The punishment of imprisonment is only for
non-compliance with the order of maintenance. The Magistrate
referred to in Section 3(2) and other Sections of the 1986 Act, is,
for all practical purposes, to be deemed to be a Civil Court
subordinate to the District Court. [Para 66][365-B-D]
1.7 It was never the intention of the 1986 Act for Muslim
Women to deprive divorced Muslim Women from the litigant
friendly procedures of the Family Courts Act and denude Family
Courts of jurisdiction to decide applications for maintenance of
divorced Muslim women. The Family Court would have
jurisdiction under Section 7 of the Family Courts Act to entertain
an application under Section 3 and 4 of 1986 Act for Muslim
Women, since the Court of Magistrate dealing with such an
application is to be deemed to be a Civil Court subordinate to
the District Court. A literal and rigid interpretation of the
expression “Subordinate Civil Court” to single out divorced
Muslim Women seeking maintenance from their husbands, access
to Family Courts when all other women whether divorced or not
and even Muslim Women not divorced can approach Family
Courts would be violative of Article 14 of the Constitution. The
Family Court had the jurisdiction to convert the application of
the Appellant under Section 125 of the Cr.P.C into an application
under Section 3 of the 1986 Act for Muslim Women and to decide
the same. [Paras 68-71, 79][365-G-H][366-B-D][368-B]
Bangalore Water Supply v. A. Rajappa AIR 1978 SC
548 : [1978] 3 SCR 207 – followed.
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Iqbal Bano v. State of UP and Another (2007) 6 SCC
785 : [2007] 7 SCR 949; Tirath Singh v. Bachittar Singh
AIR 1955 SC 830 : [1955] 2 SCR 457 – relied on.
Modern School v. Union of India (2004) 9 SCC 741 :
[2004] 3 SCR 1161 – referred to.
Seaford Court Estates Ltd. v. Asher (1949) 2 All ER
155 – referred to.
In the Judgment of R. Banumathi, J.
[2007] 7 SCR 949
distinguished
Para 3
[1985] 3 SCR 844
referred to
Para 9
[2001] 3 Suppl. SCR 419
referred to
Para 13
[2009] 16 SCR 190
referred to
Para 15
In the Judgment of Indira Banerjee, J. (Dissenting)
(2004) 5 SCC 196
referred to
Para 36
[1981] 2 SCR 910
referred to
Para 36
[1985] 3 SCR 844
referred to
Para 37
[1952] SCR 284
followed
Para 49
[1993] 3 SCR 930
followed
Para 49
[1963] 2 SCR 353
followed
Para 50
[1955] 1 SCR 787
followed
Para 53
[1955] 1 SCR 1045
followed
Para 54
[2007] 7 SCR 949
relied on
Para 63
[1978] 3 SCR 207
followed
Para 74
[1955] 2 SCR 457
relied on
Para 77
[2004] 3 SCR 1161
referred to
Para 78
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
192 of 2011.
From the Judgment and Order dated 28.07.2010 of the High Court
of Judicature for Rajasthan, Bench at Jaipur, Jaipur in S.B. Criminal
Revision Petition No. 295 of 2009.
RANA NAHID @ RESHMA @ SANA & ANR. v. SAHIDUL
HAQ CHISTI
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Sunil Kumar Singh, Rameshwar Prasad Goyal, Puneet Jain, Harsh
Jain, Abhinav Gupta, and Ms. Pratibha Jain, Advs. for the appearing
parties.
The Judgments/Order of the Court were delivered/passed by
R. BANUMATHI, J.
1. This appeal arises out of the judgment dated 28.07.2010 passed
by the High Court of Rajasthan Bench at Jaipur in S.B. Criminal Revision
Petition No. 295 of 2009 in and by which High Court allowed the revision
petition filed by the respondent thereby setting aside the order passed by
the Family Court which has converted the application for maintenance
under Section 125 Cr.P.C. into Section 3 of the Muslim Women (Protection
of Rights on Divorce) Act, 1986 and also setting aside the maintenance
amount awarded to appellant No.1.
2. Brief facts of the case which led to the filing of this appeal are
that the marriage between appellant No.1-Rana Nahid @ Reshma @
Sana and respondent Sahidul Haq Chisti was solemnized on 08-03-1998
as per the Muslim rites and appellant No.2-son was born out of the
wedlock. Alleging that appellant No.1 was subjected to cruelty and
harassment for additional dowry and that she was thrown out of
matrimonial home, appellants filed a petition under Section 125 Cr.P.C
against the respondent. Thereafter, on 24-03-2008, appellant No.1
amended the petition on the basis of divorce given on 23-04-2008 by the
respondent-Sahidul. The appellants averred that the respondent is working
as a
lecturer in Rajkiya Moiniya Senior Secondary School, Ajmer and
has been earning a sum of Rs.20,000/- per month approximately and he
also serves in “Mehmani ki Dargah” from where he earns Rs.20,000/-
per month and thus claimed a maintenance of Rs.6,000/- per month
towards her maintenance and Rs.2,500/- per month towards maintenance
of her son-appellant No.2 herein. The respondent has admitted that he is
a lecturer in Govt. Job and receives a salary of Rs.18,500/- per month.
3. The Family Court held that as the appellant No.1 is a Muslim
divorced woman, her petition for maintenance under Section 125 Cr.P.C.
is not maintainable. The Family Court treated the said application under
Section 125 Cr.P.C. as application under Section 3 of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (Muslim Women’s Protection
Act) in the light of the judgment of this Court in Iqbal Bano v. State of
Uttar Pradesh & Anr. (2007) 6 SCC 785. The Family Court ordered
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respondent-Sahidul Haq to pay rupees three lakh in lump sum to appellant
No.1 towards her maintenance and future livelihood. The application of
appellant No.2 claiming maintenance has been accepted under Section
125 Cr.P.C. and the respondent has been ordered to pay Rs. 2,000/- per
month towards his maintenance till he attains majority.
4. Being aggrieved by the quantum of maintenance, the appellants
filed Revision Petition No. 295 of 2009 before the High Court of Rajasthan
at Jaipur for enhancement of maintenance. The respondent also filed
Revision Petition No. 221 of 2009 against the order of the Family Court.
While the matter was pending before the High Court, a sum of Rs.
1,00,000/- was paid by the respondent to appellant No.1. The High Court
held that the application under Section 125 Cr.P.C. was made before the
Family Court which does not have jurisdiction to entertain an application
under Section 3 of the Muslim Women’s Protection Act. The High Court
held that the order of the Family Court converting the application under
Section 125 Cr.P.C. into an application under Section 3 of the Act is
without jurisdiction and on those findings, set aside the order of the Family
Court to that extent and allowed the revision preferred by the respondent.
However, liberty was given to appellant No.1 to file an application under
Section 3 of the Act of 1986 before the Court of competent Magistrate.
So far as the amount of rupees one lakh already paid to appellant
No.1,
she was allowed to retain it, subject to the final outcome of the application
under Section 3 of the Act. The High Court, however, maintained the
maintenance amount awarded to appellant No.2.
5. It is submitted by the learned counsel for the appellants that the
Family Court has jurisdiction to decide cases under Section 3 of the
Muslim Women’s Protection Act and the High Court was not right in
setting aside the same and erred in directing the appellant No.1 to file
application under Section 3 of Muslim Women’s Protection Act.
6. Refuting the contentions, learned counsel for the respondent
submitted that an application under Section 125 Cr.P.C. cannot be
maintained by a Divorced Muslim Wife unless there is a consent of both
that the Husband and the divorced Wife to be governed by Section 125
Cr.P.C as per Section 5 of the Muslim Women’s Protection Act. It was
further submitted that the Family Court has no jurisdiction to entertain
applications under Section 3 of the Act as the jurisdiction to file the case
under Muslim Women’s Protection Act has not been conferred on the
family courts under Section 7(2)(b) of the Family Courts Act, 1984.
RANA NAHID @ RESHMA @ SANA & ANR. v. SAHIDUL
HAQ CHISTI [R. BANUMATHI, J.]
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7. Having regard to the rival contentions, the question falling for
consideration is whether the family court has jurisdiction to try application
filed by Muslim divorced woman for maintenance under Section 3 of
Muslim Women (Protection of Rights on Divorce) Act, 1986.
8. For proper appreciation of the contentions, we may usefully
refer to the provisions of the Act and the genesis of the enactments that
are under consideration before us.
9. Under the Muslim personal law, a divorced woman could be
awarded maintenance only during the iddat period and not later. In Mohd.
Ahmed Khan v. Shah Bano Begum and others (1985) 2 SCC 556, the
Supreme Court upheld the right of Muslim divorced wife under Section
125 Cr.P.C. because Explanation (b) of Section 125 (1) Cr.P.C. includes
a divorced wife till she remarries. In Shah Bano case, the Supreme
Court has held that a Muslim divorced woman unable to maintain herself
is entitled to claim maintenance under Section 125 Cr.P.C. even after
the iddat period was over.
10. After Shah Bano case, the Muslim Women (Protection of
Rights on Divorce) Act (For short ‘Muslim Women Protection Act’)
was enacted with effect from 19.05.1986 as per which a divorced Muslim
woman is not only entitled to maintenance for the iddat period from her
former husband but also to a reasonable and fair provision for the future.
The preamble of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 reads as
under:-
“An Act to protect the rights of Muslim Women who have been
divorced by, or have obtained divorce from, their husbands and to
provide for matters connected therewith or incidental thereto.”
11. Muslim Women (Protection of Rights on Divorce) Act, 1986
does not deviate itself from the purpose, object and scope of the provisions
of maintenance under Criminal Procedure Code. The provisions of the
Act are not inconsistent with the provisions of Chapter IX of the Code.
The provision of this enactment provides remedies beneficial to the Muslim
women divorcee by making the former husband liable to provide the
divorced woman with reasonable and fair provision in addition to providing
maintenance and where the husband fails to comply with the order without
sufficient cause, the Magistrate may issue warrant for levying the amount
of maintenance and may sentence him to imprisonment for a term which
may extend to one year. The near relatives of the woman are also made
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liable under Section 4 of the Act. In case, the relatives are not in a
position to pay her, the State Wakf Board is also made liable to provide
maintenance. While the Criminal Procedure Code provides the relief of
maintenance only, the Act of 1986 furnishes to divorced woman,
additionally, ‘a reasonable and fair provision’, the relief of recovery of
dower and return of marital gifts.
12. The important Section in the Act, 1986 is Section 3 which
provides that a divorced woman is entitled to obtain from her former
husband “maintenance”, “reasonable and fair Provision” and “Mahr”
etc. Section 3(1)(a) and Section 3(2) of the Muslim Women’s Protection
Act read as under:-
“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;
(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.”
After the enforcement of the Muslim Women’s Protection Act, a
divorced Muslim woman is entitled to maintenance not only for the period
of iddat from her former husband but also to a reasonable and fair
provision for her future.The wordings of Section 3 of the Act indicate
that the husband has two separate and distinct obligations: (1) to make a
“reasonable and fair provision” for his divorced wife; and (2) to provide
“maintenance” for her. Section 3 of the Act prescribes forum for redress
and the manner in which the order is to be executed. The Act confers
exclusive jurisdiction on the Magistrate of the First Class to entertain an
application under the Act by a Muslim woman where she resides.
13. In Danial Latifi and another v. Union of India, (2001) 7
SCC 740, the Constitution Bench of the Supreme Court considered the
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constitutional validity of the provisions of the Muslim Women (Protection
of Rights on Divorce) Act, 1986 and upheld the validity of the provisions
of the Act and held as under:-
“27. Section 3(1) of the Act provides that a divorced woman
shall be entitled to have from her husband, a reasonable and fair
maintenance which is to be made and paid to her within the iddat
period. Under Section 3(2) the Muslim divorcee can file an
application before a Magistrate if the former husband has not
paid to her a reasonable and fair provision and maintenance or
mahr due to her or has not delivered the properties given to her
before or at the time of marriage by her relatives, or friends, or
the husband or any of his relatives or friends. Section 3(3) provides
for procedure wherein the Magistrate can pass an order directing
the former husband to pay such reasonable and fair provision and
maintenance to the divorced woman as he may think fit and proper
having regard to the needs of the divorced woman, standard of
life enjoyed by her during her marriage and means of her former
husband. The judicial enforceability of the Muslim divorced
woman’s right to provision and maintenance under Section 3(1)(a)
of the Act has been subjected to the condition of the husband
having sufficient means which, strictly speaking, is contrary to
the principles of Muslim law as the liability to pay maintenance
during the iddat period is unconditional and
cannot be circumscribed
by the financial means of the husband. The purpose of the Act
appears to be to allow the Muslim husband to retain his freedom
of avoiding payment of maintenance to his erstwhile wife after
divorce and the period of iddat.”
………
“29.The important section in the Act is Section 3 which provides
that a divorced woman is entitled to obtain from her former husband
“maintenance”, “provision” and “mahr”, and to recover from his
possession her wedding presents and dowry and authorizes the
Magistrate to order payment or restoration of these sums or
properties. The crux of the matter is that the divorced woman
shall be entitled to a reasonable and fair provision and maintenance
to be made and paid to her within the iddat period by her former
husband. The wordings of Section 3 of the Act appear to indicate
that the husband has two separate and distinct obligations: (1) to
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make a “reasonable and fair provision” for his divorced wife; and
(2) to provide “maintenance” for her. The emphasis of this section
is not on the nature or duration of any such “provision” or
“maintenance”, but on the time by which an arrangement for
payment of provision and maintenance should be concluded,
namely, “within the iddat period”. If the provisions are so read,
the Act would exclude from liability for post-iddat period
maintenance to a man who has already discharged his obligations
of both “reasonable and fair provision” and “maintenance” by
paying these amounts in a lump sum to his wife, in addition to
having paid his wife’s mahr and restored her dowry as per Sections
3(1)(c) and 3(1)(d) of the Act. ……..”
30. A comparison of these provisions with Section 125 CrPC will
make it clear that requirements provided in Section 125 and the
purpose, object and scope thereof being to prevent vagrancy by
compelling those who can do so to support those who are unable
to support themselves and who have a normal and legitimate claim
to support are satisfied. If that is so, the argument of the petitioners
that a different scheme being provided under the Act which is
equally or more beneficial on the interpretation placed by us from
the one provided under the Code of Criminal Procedure deprive
them of their right, loses its significance. The object and scope of
Section 125 CrPC is to prevent vagrancy by compelling those
who are under an obligation to support
those who are unable to
support themselves and that object being fulfilled, we find it difficult
to accept the contention urged on behalf of the petitioners.”
[Underlining added]
The Constitution Bench upheld the provisions of the Act. But the
Constitution Bench did not authoritatively decide on the question whether
the Family Court would have jurisdiction to entertain an application filed
by a divorced Muslim Woman for maintenance under the provisions of
the Muslim Women Protection Act.
14. Under Section 3(1)(a) of the 1986 Act, a divorcee is entitled
to get a reasonable and fair provision and maintenance to be made and
paid to her within the iddat period. On construing the expression, “a fair
and reasonable provision and maintenance” as used in Section 3(1)(a)
of the 1986 Act, the Supreme Court in Danial Latifi case has summed
up its conclusion as under:-
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“36. While upholding the validity of the Act, we may sum up our
conclusions:
(1)
A Muslim husband is liable to make reasonable and fair
provision for the future of the divorced wife which obviously
includes her maintenance as well. Such a reasonable and
fair provision extending beyond the iddat period must be
made by the husband within the iddat period in terms of
Section 3(1)(a) of the Act.
(2)
Liability of a Muslim husband to his divorced wife arising
under Section 3(1)(a) of the Act to pay maintenance is not
confined to the iddat period.
(3)
 A divorced Muslim woman who has not remarried and who
is not able to maintain herself after the iddat period can
proceed as provided under Section 4 of the Act against her
relatives who are liable to maintain her in proportion to the
properties which they inherit on her death according to
Muslim law from such divorced woman including her
children and parents. If any of the relatives being unable to
pay maintenance, the Magistrate may direct the State Wakf
Board established under the Act to pay such maintenance.
(4)
The provisions of the Act do not offend Articles 14, 15 and
21 of the Constitution of India.”
15. Section 3 of 1986 Act opens with the words “notwithstanding
anything contained in any other law for the time being in force,” a divorced
woman shall be entitled to rights enumerated in clauses (a) to (d) of
Section 3(1) of 1986 Act. Muslim Women Protection Act may have
conferred more rights but the Act confers these rights notwithstanding
anything contained in Section 125 Cr.P.C. The non-obstante clause has
to be understood fairly and reasonably. The non-obstante clause cannot
be lightly assumed to bring in the effect of supersession. It should not be
allowed to demolish or extinguish the existing right unless the legislative
intention is clear, manifest and unambiguous. In Shabana Bano v. Imran
Khan (2010) 1 SCC 666, the Supreme Court quashed the order of the
Family Court holding that even if the Muslim wife had been divorced
during the period her application for maintenance is pending, she would
be entitled to claim maintenance from her husband under Section 125
Cr.P.C. So, the case has been remanded to Family Court for disposal of
the case on its merits in accordance with law.
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16. We may also refer to Section 5 of the Muslim Women’s
Protection Act which gives divorced Muslim couples “an option to be
governed by the provisions of Sections 125 to 128 of the Code of Criminal
Procedure, 1973” which they could jointly exercise at the first hearing
of the case under the Act. Section 5 of the Act enables the parties at
the stage of first hearing, to withdraw from the applicability of the
Muslim Women’s Protection Act and be governed by the provisions
of Criminal Procedure Code. Under Section 5 of the Muslim Women
Protection Act, on the date of the first hearing, a divorced woman
and her former husband can declare that they prefer to be governed
by Sections 125 to 128 of the Code and then the Magistrate has to
dispose of the application accordingly. Otherwise, the Magistrate
has to deal with the application as per the provisions of the Muslim
Women Protection Act. Section 7 of the Muslim Women Protection
Act deals with Transitional Provisions. As per Section 7 of the Act,
an application by a divorced woman under Section 125 or under
Section 127 of the Code pending before a Magistrate on the
commencement of Muslim Women Protection Act, shall,
notwithstanding anything contained in that Code, subject to the
provisions of Section 5 of the Act, shall be disposed of by such
Magistrate in accordance with the provisions of the Muslim Women
Protection Act. This makes the legal provision very clear. That is
only a Magistrate of the First Class
exercising jurisdiction under
the Code can dispose of the application in accordance with the
provisions of the Muslim Women Protection Act.
17. The Family Courts Act, 1984 was enacted in public interest
for the establishment of Family Courts for the speedy settlement of family
disputes and it came into force on 14.09.1984. The jurisdiction of Family
Courts is provided for in Section 7 of the Act. Sections 7 and 8 of the
Act read as under:-
“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,
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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 maintenance;
(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.
18. Section 7(1)(a) of the Family Courts Act 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. Sub-clause (b) creates a legal fiction
endowing upon the Family Courts the status of the District Court or
subordinate Civil Court. Section 7(1) can apply only when:- (i) the suit or
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proceeding is of the nature envisaged by clauses (a) to (g) of the
Explanation; and (ii) concerning the matter where the jurisdictions are
exercisable by any District Court or Subordinate Court. On these counts,
the application under Section 3 of Muslim Women’s Protection Act cannot
be said to be covered by Section 7(1) of the Act. As provided in Section
3(2) of Muslim Women’s Protection Act, application can be moved only
before the First Class Magistrate having jurisdiction in the area under
Criminal Procedure Code. Thus, an application under Section 3 of the
Act cannot be maintained before the Family Court under Section 7(1) of
the Family Courts Act.
19. Section 7(2)(a) confers jurisdiction upon the Family Court
hitherto exercisable by a First Class Magistrate under Chapter IX (relating
to order for maintenance of wife, children and parents) of the Criminal
Procedure Code. Sub-section (2)(a) of Section 7 of the Family Courts
Act confers limited jurisdiction upon the Family Court relating to those
matters only as are covered under Chapter IX of Criminal Procedure
Code. 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 Court’s jurisdiction by conferring additional jurisdiction.
20. The expression “conferred on it” occurring in sub-clause (b)
of Section 7(2) speaks of conferment of the
jurisdiction on the Family
Court by an enactment. Thus, under Section 7(2)(b), the jurisdiction must
be specifically conferred and cannot be assumed or deemed to have
been conferred. The provisions of the Muslim Women’s Protection Act
do not confer any jurisdiction on the Family Court. As pointed out earlier,
Section 3(2) of the Muslim Women’s Protection Act provides that the
application may be made to a Magistrate; but not to the Family Court.
The Muslim Women’s Protection Act was enacted in 1986 subsequent
to the Family Courts Act, 1984. In the light of the provisions, under
Section 3(2) of the Muslim Women’s Protection Act especially conferring
jurisdiction upon the First Class Judicial Magistrate, the application under
Section 3 can lie only to the Magistrate having jurisdiction in the area.
21. Considering the provisions of Section 3 of Muslim Women’s
Protection Act vis-à-vis the provisions of the Family Courts Act in Anjum
Hasan Siddiqui v. Smt. Salma B. AIR 1992 All 322, the learned Single
Judge of the Allahabad High Court held as under:-
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“8. Apart from the above no application under Section 3 lies to the
district court or sub-ordinate civil court. As provided in Section
3(2) of 1986 Act, the application can be moved before the first
class Magistrate having jurisdiction in the area under the Cr.P.C.
Thus, Section 7(1) does not help the respondent at all.
9. Sub-clause (2) of Section 7 of the Family Court Act is also of
no help to the respondent since the Act confers only a limited
jurisdiction relating to those maters only as are covered by Chapter
IX of the Criminal P.C. Only this limited jurisdiction has been
transferred to the Family Court. To this extent alone, the first
Class Magistrate having jurisdiction in the area for which Family
Court has been established loses his jurisdiction which is thence
forth exercisable by the Family Court only.
10. Thus, we have seen that neither under sub-section (1) nor
under sub-section (2) of Section 7 the Family Court’s Act has any
jurisdiction to entertain an application of the nature contemplated
by Section 3 of the 1986 Act.
11. Faced with such a situation the learned counsel for the
respondent turned to sub-sec. (2)(b). He urged that jurisdiction
may be deemed to have been conferred on the Family Court under
this provision. We are afraid, the learned counsel is again on a
weak ground. The words ‘conferred on it’ in sub-clause (b) speaks
of conferment of jurisdiction on the Family Court by an enactment.
The
jurisdiction must be specifically conferred and cannot be
assumed to have been conferred. No provisions of 1986 Act
however, confers any such jurisdiction on the Family Court. On
the other hand Section 3(2) of the 1986 Act provides that the
application may be made to a Magistrate and not to the Family
Court. Apart from this the 1986 Act was enacted subsequent to
the Family Court Act and its provisions supersedes all earlier
enactments. Hence this section must prevail over the Family Courts
Act, 1984. Thus an application under Section 3 can lie only to the
Magistrate having jurisdiction in the area.
12. Section 3 of the 1986 Act itself recognises rights of divorced
Muslim Woman, prescribes a forum for rederess thereof and
prescribes the manner of execution of the order made in that
behalf. This makes the Act complete in itself and does not depend
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for support on any other enactment. The section begins with a
non-obstante clause and it overrides all other provisions of the
then existing laws. Alt provisions contrary to what is contained in
S-. 3 of 1986 Act, including the Family Courts Act, 1984, shall
stand superseded by its provision. A comparison of the provisions
of 1984 and 1986 Acts would also show that the purpose and
scope of the two Acts is somewhat different. Section 3 is only
limited to certain claims enumerated therein which alone can be
put forward by a divorced Muslim Woman under the Act in the
manner prescribed…...”
(Underlining added)
22. The question whether the Family Court has jurisdiction to try
application of the Muslim divorced woman for maintenance after coming
into force the Muslim Women’s Protection Act, was considered by the
Full Bench of Bombay High Court in Karim Abdul Rehman Shaikh v.
Shehnaz Karim Shaikh and others 2000 (3) Mh.L.J. 555 which also
took the same view that a Muslim woman can apply under Sections 3
and 4 of the Muslim Women’s Protection Act only to the First Class
Magistrate having jurisdiction under the Code and the Family Court cannot
deal with such applications and held as under:-
“61. It is important to note that there is no enactment containing
an express provision that the Family Court shall have jurisdiction
to deal with applications made by a divorced Muslim women under
sections 3 and 4 of the Muslim Women Act. On the contrary, the
scheme of the
Muslim Women Act shows that such application
can be made only to the Magistrate of First Class exercising
jurisdiction under the Code. The Family Court’s Act is a prior
enactment. Muslim Women Act does not even refer to the Family
Court’s Act. If it was the intention of the legislature to see that a
Muslim women can file application before a Family Court an
express provision to that effect would have been found in the
Muslim Women Act. On the contrary, under section 5 of the
Muslim Women Act, a divorced women and her former husband
can declare that they prefer to be governed by sections 125 to
128 of the Code and then the Magistrate has to dispose of the
application accordingly. Otherwise, the Magistrate has to deal with
it as per the provisions of the Muslim Women Act. There is no
provision under which a Muslim women can prefer to go to a
Family Court by making a joint declaration with her husband.
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Section 7 says that application by a divorced women under section
125 or under section 127 of the Code pending before a Magistrate
on the commencement of the Muslim Women Act shall
notwithstanding anything contained in that Code and subject to
the provisions of section 5 of the Muslim Women Act shall be
disposed of by such Magistrate in accordance with the provisions
of the Muslim Women Act. This makes the legal provision very
clear. It is only a Magistrate of the First Class exercising jurisdiction
under the Code who can dispose of even the pending applications
and that too in accordance with the provisions of the Muslim
Women Act. Therefore, there is nothing in the provisions of the
Muslim Women Act to suggest that the Family Court has
jurisdiction to entertain applications under sections 3 and 4 of the
Muslim Women Act.
62. Similar view has been taken by Division Bench of this Court
in Noor Jamaal’s case (supra) and we respectfully concur with
the said view. We do not concur with decision of the Division
Bench of this Court in Allabuksh’s case (supra) which holds that,
where a Family Court has been established, the power and
jurisdiction of the Family Court to entertain an application by a
divorced Muslim wife is not taken away expressly or by necessary
implication by the Muslim Women Act and the remedy under the
Muslim Women Act is an additional remedy. In our opinion, the
fact that the Muslim Women Act does not
refer to a Family Court
or does not say that application under sections 3 and 4 can be
filed before the Family Court is very material. If the jurisdiction of
the Family Court was sought to be protected, there would have
been an express provision making it clear that the Family Court
has jurisdiction to entertain applications of divorced Muslim women
under sections 3 and 4 of the Muslim Women Act. We therefore
hold that after coming into force of the Muslim Women Act, a
Muslim women can apply under sections 3 and 4 of the said Act
only to the First Class Magistrate having jurisdiction under the
Code. The Family Court cannot deal with such applications.”
[Underlining added]
23. In the present case, we are concerned with the question
whether the application under Section 3(2) of the Act of 1986 can be
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filed before the Family Court or whether the Family Court can convert
the petition for maintenance under Section 125 Cr.P.C. to one under
Section 3 or Section 4 of the Act of 1986. I fully agree with the view
taken by the Full Bench of the Bombay High Court in Karim Abdul
Rehman Sheikh case. Since the Muslim Women’s Protection Act, 1986
does not refer to the Family Court or does not say that an application
under Sections 3 and 4 can be filed before the Family Court, in my view,
the Family Court cannot entertain the application of divorced Muslim
woman under Sections 3 and 4 of the Muslim Women’s Protection Act,
1986.
24. The learned counsel for the appellant placed reliance upon
the judgment in Iqbal Bano case and submitted that in the said case,
the Magistrate has converted the petition for maintenance under Section
125 Cr.P.C. to the application under Section 3 of the Muslim Women’s
Protection Act, 1986 and the same was upheld by the Supreme Court.
The facts of the Iqbal Bano case are clearly distinguishable from the
facts of the present case. In Iqbal Bano case, the application under
Section 125 Cr.P.C. was made before the Magistrate which also had
jurisdiction to entertain application under Section 3 of the Muslim
Women’s Protection Act. In that context, the Supreme Court upheld the
order converting the application under Section 125 Cr.P.C. as the one
under Section 3 of the Muslim Women’s Protection Act.
25. Therefore, the application under Section
3(2) of the Act of
1986 by the divorced wife has to be filed before the competent Magistrate
having jurisdiction if she claims maintenance beyond the iddat period.
Even if the Family Court has been established in that area, the Family
Court not having been conferred the jurisdiction under Section 7 of the
Family Courts Act, 1984 to entertain an application filed under Section 3
of the Muslim Women Protection Act, the Family Court shall have no
jurisdiction to entertain an application under Section 3(2) of the Act of
1986. The Family Court, therefore, cannot convert the petition for
maintenance under Section 125 Cr.P.C. to one under Section 3 or Section
4 of the Act of 1986. The High Court, in my view, rightly held that the
Family Court has no jurisdiction to entertain the petition under Sections 3
and 4 of the Act of 1986 and that the Family Court cannot convert the
petition for maintenance under Section 125 Cr.P.C. to one under Section
3 or Section 4 of the Act of 1986. I do not find any reason warranting
interference with the impugned order.
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26. In the result, the appeal is dismissed. The High Court has
given liberty to appellant No.1 to file application under Section 3 of the
Act of 1986 before the competent Magistrate. The application if any
already filed by the appellant No.1 or any application to be filed before
the competent Magistrate of the First Class shall be heard and disposed
of as expeditiously as possible. The Magistrate of the First Class shall
not be influenced by any of the views expressed by this Court or by the
High Court and shall consider the matter on its own merits.
INDIRA BANERJEE, J.
1. I have gone through the judgment prepared by my esteemed
sister, but I have not been able to persuade myself to agree that a Family
Court constituted under the Family Courts Act, 1984, lacks jurisdiction
to convert an application for maintenance filed by a Muslim woman
under Section 125 of the Code of Criminal Procedure 1973 (hereinafter
referred to as “Cr.P.C”) to an application under Section 3 of the Muslim
Women (Protection of Rights on Divorce) Act, 1986, (hereinafter referred
to as the “1986 Act for Muslim Women”), and decide the same.
2. The facts giving rise to this appeal, have been narrated by my
esteemed sister and are not repeated to avoid prolixity.
3. The Family Courts Act, 1984 has been enacted to provide for
the establishment of Family Courts inter alia with a view to secure
speedy settlement of disputes relating to marriage and
family affairs and
for matters connected therewith.
4. The Statement of Objects and Reasons for enactment of the
Family Courts Act records that several associations of women, other
organizations and individuals from time to time, demanded that Family
Courts be set up for the settlement of family disputes, where emphasis
should be laid on conciliation and achieving socially desirable results and
adherence to rigid rules of procedure and evidence should be eliminated.
5. The Law Commission had, in its 59th Report submitted in 1974,
stressed that in dealing with disputes concerning the family, the Court
ought to adopt an approach, radically different from that adopted in
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ordinary civil proceedings, and that it should make reasonable efforts at
settlement before the commencement of the trial.  In 1976, the Code of
Civil Procedure was amended to provide for a special procedure to be
adopted in suits and proceedings relating to matters concerning the family.
6. Parliament enacted the Family Courts Act to provide for
establishment of Family Courts with a view to promote conciliation in,
and secure speedy settlement of disputes relating to marriage and family
affairs, and matters connected therewith.
7. The Family Courts Act is a secular statute, which applies to
matters contemplated therein, irrespective of the religion of the litigating
parties. Section 3 of the Family Courts Act provides for establishment of
Family Courts, after consultation with the High Court.
8. The Family Courts established under Section 3 of the Family
Courts Act, derive jurisdiction from Section 7 of the said Act which is
set out hereinbelow for convenience:-
“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
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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
circumstance 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.”
9.   Section 8 of the Family Courts Act provides :-
‘Exclusion of jurisdiction and pending proceedings.
Where a Family Court has been established for any area,—
(a) no district court or any subordinate civil court referred to
in sub-section (1) of section 7 shall, in relation to such area,
have or exercise any jurisdiction in respect of any suit or
proceeding of the nature referred to in the Explanation to
that sub-section;
(b) no magistrate shall, in relation to such area, have or
exercise any jurisdiction or powers under Chapter IX of the
Code of
Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the
Explanation to sub-section (1) of section 7 and every
proceeding under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974),—
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(i) which is pending immediately before the establishment of
such Family Court before any district court or subordinate
court referred to in that sub-section or, as the case may be,
before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken
before such Family Court if, before the date on which such
suit or proceeding was instituted or taken, this Act had come
into force and such Family Court had been established,
shall stand transferred to such Family Court on the date on
which it is established.”
10. On a reading of Section 7(1) along with explanation (f) to
Section 7(1) of the Family Courts Act, it is patently clear that the Family
Court, established under Section 3 of the Family Courts Act, is clothed
with the jurisdiction and powers exercisable by a District Court or any
Subordinate Civil Court, under any law for the time being in force, to
entertain and decide any suit or proceeding for maintenance, which
would include an application under Section 3 of the 1986 Act for Muslim
Women.
11. A Family Court, constituted for adjudication of family disputes,
is quite different from the regular Criminal and Civil Courts. The
atmosphere in these Courts is much more informal and far less intimidating
than the atmosphere in regular Civil and Criminal Courts. These Courts
are not bound by rules of evidence and rules of procedure. The Family
Courts have the power to devise their own procedure for adjudication of
family disputes.
12. Section 5 of the Family Courts Act contemplates association
with Family Courts, of social welfare organizations, persons professionally
engaged in promoting welfare of the family, persons working in the field
of social welfare and any other persons, whose association with the
Family Court, would enable it to exercise its jurisdiction more effectively,
in accordance with the purposes of the Family Courts Act.
13. Section 6 of the Family Courts Act provides for appointment,
inter alia, of counsellors to assist a Family Court, in the discharge of its
functions, and Section 9 of the Family Courts Act casts a duty on the
Family Courts to endeavour, wherever it is possible, to assist and persuade
the parties in arriving at a settlement in respect of the subject matter of
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the suit or proceeding, and for this purpose a Family Court may, subject
to any rules made by the High Court, follow such procedure as it may
deem fit. Unlike a Criminal Court or a Civil Court, a Family Court is
obliged to adjourn proceedings, whenever there is reasonable possibility
of settlement between the parties.
14. The Family Court is to be deemed to be a Civil Court and
have all the powers of such Court under Section 10 of the Family Courts
Act, and subject to the other provisions of the Family Courts Act and the
Rules made thereunder, the provisions of the Civil Procedure Code, 1908
(hereinafter referred to as ‘CPC’) apply to suits and proceedings before
the Family Court, except for proceedings under Chapter IX of the Cr.P.C.
15. Notwithstanding sub-section (1) and sub-section (2) of Section
10 of the Family Courts Act, which makes the provisions of the CPC
applicable to suits and proceedings before the Family Court, other than
those under Chapter IX of the Cr.P.C., and the provisions of the Cr.P.C.
applicable to all the proceedings under Chapter IX of that Code, it is
open to the Family Court to lay down its own procedure with a view to
arrive at a settlement in respect of the subject matter of the suit or
proceeding.
16. Section 12 of the Family Courts Act envisages the assistance
inter alia of professional experts in the field of family welfare, whether
or not related to the parties, to assist the Family
Courts in discharging
their functions imposed by the Family Courts Act.
17. An important facet of the Family Courts Act is Section 13 of
the said Act, which provides that notwithstanding anything contained in
any law, no party to any suit or proceedings before a Family Court, shall
be entitled as of right, to be represented by a legal practitioner. If the
Family Court considers it necessary in the interest of justice, it may seek
the assistance of a legal expert as amicus curiae. In this country, women
are, by and large, economically weaker. In the regular Civil and Criminal
Courts, economically weak applicants, unable to afford lawyers of
standing could be pitted against the best legal brains hired by financially
strong opponents. However, in proceedings for maintenance in the Family
Court, the parties are equally poised, with the same standard of legal
representation.
18. Another significant feature of the Family Courts Act is Section
14, which enables a Family Court to receive as evidence, any report,
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statement, document, information or matter that may in its opinion help
to deal effectively with a dispute, whether or not the same would be
otherwise relevant or admissible under the Indian Evidence Act, 1872.
19. Under Section 16 of the Family Courts Act, the evidence of
any person which is of a formal character, may be given by affidavit,
and subject to just exceptions, be read in evidence in any suit or
proceedings before a Family Court.
20. Therefore, in proceedings for maintenance, in a Family Court,
Certificates, Documents etc. issued by Authorities/Employers etc. may
be proved by affidavits, without requiring presence in Court of
disinterested witnesses, whose failure and/or inability to appear in Court
on the dates of hearing often delays the proceedings.
21. Section 18 of the Family Courts Act makes a decree or order
other than an order under Chapter IX of the Cr.P.C. executable in the
same manner as a decree of a Civil Court, as prescribed by the CPC.
An order under Chapter IX of the Cr.PC may be executed in the manner
prescribed for the execution of such order by the Cr.PC
22. Where a Family Court has been established for any area,
Section 8 of the Family Courts Act denudes the District Court or any
Subordinate Civil Court referred to in sub-section (1) of Section 7 of
jurisdiction in respect of any suit or proceeding of the nature referred to
in the Explanation to that sub-section.
23. Section 8(b) of the Family Courts Act prohibits any
Magistrate
from exercising jurisdiction or powers under Chapter IX of the CR.P.C.
in relation to any area for which a Family Court has been established.
24. It is important to note that Section 20 of the Family Courts
Act, with its non-obstante clause gives the provisions of the Family Courts
Act overriding effect, over any other law, which would include the 1986
Act for Muslim Women. The Family Courts Act is to have effect,
notwithstanding anything inconsistent therewith, contained in any
other law, for the time being in force, or in any instrument having
effect, by virtue of any law other than the Family Courts Act.
25. The non-obstante clause in Section 20 makes the legislative
intent in enacting the Family Courts Act absolutely clear. The provisions
of the Act are to have effect, notwithstanding anything inconsistent in
any other law for the time being in force. In my view, the expression “in
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any other law, for the time being in force”, cannot be construed narrowly
to mean a law which was in force on the date of enactment and/or
enforcement of the Family Courts Act, as sought to be argued by Counsel
appearing on behalf of the respondent. The expression “any other law
for the time being in force” would include subsequently enacted laws, in
force, as long as Section 20 of the Family Courts Act is in operation.
26. On a reading of Sections 7(1) and 7(2) of the Family Courts
Act, it is patently clear that a Family Court is deemed to be a District
Court, or as the case may be Subordinate Civil Court, in the area to
which the jurisdiction of the Family Court extends, in respect of
proceedings of the nature, referred to in the Explanation to Section 7(1)
and is to be deemed to be the Court of a Magistrate of the First class for
the purpose of exercising jurisdiction under Chapter IX of the Cr.P.C.
Proceedings for maintenance are essentially civil proceedings.
27. As observed above, the Family Courts have jurisdiction in
respect of the matters specified in the Explanation (f) of Section 7(1),
irrespective of religion or faith of the parties to the litigation. Wherever
a Family Court is constituted, such Family Court not only exercises the
jurisdiction and powers of any District Court or Subordinate Civil Court
in respect of suits and other proceedings of the nature referred to in the
Explanation (f) to Section
7(1), that is, suits and other proceedings for
maintenance, it also exercises the jurisdiction and powers of a Magistrate
of the First Class under Chapter IX of the Cr.P.C.
28. The relevant provisions of Chapter IX of the Cr.P.C. are set
out hereinbelow for convenience:
“CHAPTER IX
ORDER FOR MAINTENANCE OF WIVES, CHILDREN
AND PARENTS
125. Order for maintenance of wives, children and
parents.- (1) If any person having sufficient means
neglects or refuses to maintain-
(a)
his wife, unable to maintain herself, or
(b)
his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c)
his legitimate or illegitimate child (not being a
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married daughter) who has attained majority, where such
child, is, by reason of any physical or mental abnormality or
injury unable to maintain itself, or
(d)
his father or mother, unable to maintain himself or
herself, a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child, father
or mother, at such monthly rate, as such Magistrate thinks fit,
and to pay the same to such person as the Magistrate may
from time to time direct;
…
Explanation.- For the purposes of this Chapter,-
(a)
“minor” means a person who, under the provisions of
the Indian Majority Act, 1875 (9 of 1875) is deemed not to
have attained his majority;
(b)
“wife includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried.
….
126. Procedure.- (1) Proceedings under section 125 may be
taken against any person in any district-
(a) where he is, or
(b) where he or his wife, resides, or
(c) where he last resided with his wife, or as the case may
be, with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the
presence of the person against whom an order for payment
of maintenance is proceeded to be made, or, when his personal
attendance is dispensed with, in the presence of his pleader,
and shall be recorded in the manner prescribed for summons-
cases:
Provided that if the Magistrate is satisfied
that the person
against whom an order for payment of maintenance is
proposed to be made is wilfully avoiding service, or wilfully
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neglecting to attend the Court, the Magistrate may proceed
to hear and determine the case ex parte and any order so
made may be set aside for good cause shown on an application
made within three months from the date thereof subject to
such terms including terms at to payment of costs to the
opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125
shall have power to make such order as to costs as may be
just.
127. Alteration in allowance.-…….
128. Enforcement of order of maintenance.- A copy of the
order of [maintenance or interim maintenance and expenses
of proceeding, as the case may be,] shall be given without
payment to the person in whose favour it is made, or to his
guardian, if any or to the person to [whom the allowance for
the maintenance or the allowance for the interim maintenance
and expenses of proceeding, as the case may be,] is to be
paid; and such order may be enforced by any Magistrate in
any place where the person against whom it is made may be,
on such Magistrate being satisfied as to the identity of the
parties and the non- payment of the [allowance, or as the
case may be, expenses, due].”
29. The right to equality, irrespective of religion, is a basic human
right, recognized, reaffirmed and reiterated in the Universal Declaration
of Human Rights adopted by the United Nations on December 10, 1948.
Article 2 of the declaration reads:
“Article 2 : Everyone is entitled to all the rights and freedoms
set forth in the declaration, without distinction of any kind,
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other
status.”
30. The International Covenant for Civil and Political Rights
(ICCPR) obligates the state parties to ensure equal right of women to
enjoyment of all rights mentioned in each of the covenants. This right is
irrespective of religion. Article 14 of the ICCPR mandates “All persons
shall be equal before the Courts and Tribunals” and Article 26 declares
that “all persons are equal under the law and are entitled without any
discrimination, to equal protection of the law…”.
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31. The Convention on the Elimination of All Forms of
Discrimination against Women 1979, commonly referred to as CEDAW,
recognizes amongst others, the right of women to equality irrespective
of religion, as a basic human right. Article 2 of CEDAW exhorts State
Parties to ensure adoption of a woman friendly legal system and woman
friendly policies and practices.
32. As a signatory to the CEDAW, India is committed to adopt a
woman friendly legal system and woman friendly policies and practices.
The 1986 Act for Muslim Women, being a post CEDAW law, this Court
is duty bound to interpret the provisions of the said Act substantively,
liberally, and purposefully, in such a manner as would benefit women of
the Muslim community.
33. Under the Indian Constitution, the right to equality is a
fundamental right. All persons are equal before the law and are entitled
to equal protection of the laws, be it substantive law or procedural law.
Article 15 of the Constitution of India clearly prohibits discrimination on
grounds, inter alia, of religion or sex.
34. The competing and conflicting principles of religious freedom
of citizens and gender equality for women, has posed a major challenge
to the judiciary in India. Personal laws of the Muslims, which are governed
by the Shariat law, are protected under the umbrella of religious freedom
and therefore immune from challenge on the ground of violation of any
fundamental right or other constitutional right. Procedural laws
would
not, however, enjoy the same immunity to challenge which substantive
Muslim Personal Laws enjoy.
35. Section 125 of the Cr.P.C. is a beneficial piece of legislation,
specially enacted as a measure of social justice, the dominant purpose
whereof is to ensure that a wife including a divorced wife, a child or a
parent is not driven to penury and vagrancy. The Section provides a
simple speedy remedy, inter alia, for a wife including a divorced wife,
who is neglected by her husband/ex husband, even though he has sufficient
means to maintain her. Such a wife or divorced wife can obtain an order
of maintenance from a Magistrate.
36. Proceedings under Section 125 of the Cr.P.C. are of a civil
nature, as held by this Court in Vijay Kumar Prasad v. State of Bihar1.
There is no penal provision for neglect and/or failure to maintain a wife
or a divorced wife. However, non compliance of an order of maintenance
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attracts the penal provisions of the Cr.P.C. In Zohara Khatoon and
Anr. v. Mohd. Ibrahim2, this Court held that wife includes a woman
who has obtained a decree for dissolution of marriage under the Dissolution
of Muslim Marriages Act, 1939.
37. In Md. Ahmed Khan v. Shah Bano Begum and Others3,
this Court held that Section 125 of the Cr.P.C, which obliges a husband
to pay maintenance to his wife, including a divorced wife, cannot be
overridden by the personal laws of the Muslims.
38. This Court held that although Muslim law limits the husband’s
liability to provide for maintenance of the divorced wife to the period of
iddat, it would be unjust to extend this principle of Muslim law to a case,
where a divorced wife is unable to maintain herself, in which case she
could have recourse to Section 125 of the Cr.PC. Unfortunately, the
aforesaid judgment led to protests, from a section of the Muslim
community, after which Parliament enacted the 1986 Act for Muslim
Women, which nullified the effect of the judgment of this Court in the
Shah Bano Case (supra).
39. The 1986 Act for Muslim Women has been enacted to protect
the rights of Muslim women who have been divorced by, or have obtained
divorce from, their husbands and to provide for matters connected
therewith or incidental thereto.
40. Section 3 of the 1986 Act for Muslim Women provides:-
“Section 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;
2 (1981) 2 SCC 509
3 (1985) 2 SCC 556
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(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.
(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 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, 3
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 it 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 payment of
such mahr or dower or the delivery of such properties referred
to in clause (d) of sub-section (1) 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
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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 defence and the said
sentence being imposed according to the provisions of the
said Code.
41. Under Section 3(1) of the 1986 Act for Muslim Women, a
divorced Muslim woman would 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;
(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) to 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.
42. Section 3(1) of the 1986 Act for Muslim Women, starts with a
non-obstante clause. The non-obstante clause in Section 3(1) gives
overriding effect to the substantive provisions of Section 3(1) of 1986
Act for a Muslim women. A divorced Muslim woman would be entitled
to maintenance in accordance with Section 3(1) of the 1986 Act for
Muslim Women, notwithstanding anything contained in any other law in
force, including Sections 125 to 128 of the Cr.P.C. The non-obstante
clause is restricted in its application to sub section (1) of Section 3. It
does not apply to sub-Sections (2) and (3) of the 1986 Act for Muslim
Women.
43. Section 2(c) of the 1986 Act for Muslim women defines
“Magistrate to mean Magistrate of the First Class, exercising jurisdiction
under the Code of Criminal Procedure, 1973 in the area where the
divorced woman resides”.
44. Section 4 of the 1986 Act for Muslim Women, enabling the
Magistrate to direct relatives to pay maintenance in certain circumstances,
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is not relevant for the purpose of this application. Section 5 which gives
the option to the divorced woman and her husband to be governed by
the provisions of Section 125 to 128 of the Cr.P.C., provided they give a
declaration by affidavit, is also not attracted in this case, since the
Respondent has not agreed to be governed by the provisions of Sections
125 to 128 of the Cr.P.C.
45. Section 7 provides that every application by a divorced Muslim
woman under Section 125 or Section 127 of the Cr.P.C., pending before
a Magistrate at the time of commencement of the 1986 Act for Muslim
Women shall, notwithstanding anything contained in that Code, and subject
to the provisions of Section 5 of the 1986 Act for Muslim Women, of
exercising option to be governed by the aforesaid provisions of the Code,
be disposed by the Magistrate in accordance with the provisions of 1986
Act for Muslim women.
46. In this case, the appellant made an application under Section
125 of Cr.P.C. claiming maintenance as wife. In course of the proceedings,
it transpired that the appellant’s husband had divorced her by the ‘Triple
Talaq’ method, after which the application of the appellant was treated
as an application under Section 3 of the 1986 Act for Muslim Women. It
may be pertinent to note that divorce by the ‘Triple Talaq’ is no longer
valid, after enactment of the Muslim Women (Protection of Rights on
Marriage) Act, 2019.
47. The question which arises for determination of this
Court is,
whether the 1986 Act for Muslim Women, particularly Section 3(2), 3(3),
3(4), 4(c), 4(2) and 7 thereof read with the definition of “Magistrate” in
Section 2(c), impliedly bars the jurisdiction of the Family Court to entertain
or decide an application filed by a divorced Muslim Woman for
maintenance. A rigid, constricted reading of the 1986 Act for Muslim
Women, to denude the Family Courts constituted under the Family Courts
Act of jurisdiction to decide an application thereunder, is in my view
impermissible in law.
48. There can be no dispute that the Family Court alone has
jurisdiction in respect of personal and family matters relating to women
and men, irrespective of their religion. Family matters of Muslim women
pertaining inter alia to marriage, divorce etc. are decided by Family
Courts, as also claims of Muslim wives to maintenance under Section
125 of the Cr.P.C. There could be no reason to single out divorced Muslim
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wives to deny them access to the Family Courts, and that in my view,
was never the legislative intent of the 1986 Act for Muslim Women.
49. Equality before the law and equal protection of the laws
envisaged in Article 14 of the Constitution of India applies as much to
procedural laws as to substantive laws. This proposition finds support
from the judgment of this Court in State of West Bengal v. Anwar Ali
Sarkar reported in AIR 1952 SC 75. Reference may also be made to
the judgment of this Court in D.K. Yadav v. J. M. A. Industries Ltd.
reported in (1993) 3 SCC 259 where this Court held:
“10. In State of W.B. v. Anwar Ali Sarkar per majority, a seven-
Judge Bench held that the rule of procedure laid down by
law comes as much within the purview of Article 14 of the
Constitution as any rule of substantive law...”
50. In Lachhman Dass v. State of Punjab reported in AIR 1963
SC 222, a Constitution Bench of this Court accepted that Article 14
prohibited discriminatory legislation whether substantive or procedural.
However, the majority found that Article 14 did not forbid reasonable
classification and accordingly rejected a challenge to a law which provided
a special procedure for the recovery of dues from the customers of
State Bank. In Lachhman Dass(supra)the majority held:
“22….The law is now well settled that while Art.14 prohibits
discriminatory legislation directed against one individual or
class of individuals, it
does not forbid reasonable
classification, and that for this purpose even one person or
group of persons can be a class. Professor Willis says in his
Constitutional Law p.580 “a law applying to one person or
one class of persons is constitutional if there is sufficient basis
or reason for it…
23. On the principles stated above we are of the opinion that
the Patiala State Bank is a class by itself and it will be within
the power of the State to enact a law with respect to it. We are
also of the opinion that the differentia between the Patiala
State Bank and the other Banks has a rational bearing on
the object of the legislation. If the Funds of the Patiala State
Bank are State Funds, a law which assimilates the procedure
for the determination and recovery of amounts due to the Bank
from its customers to that prescribed for the determination
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and recovery of arrears of revenue must be held to have a
just and reasonable relation to the purpose of the legislation.
A law which provides for State funds being advanced to
customers through State Bank can also provide for its being
recovered in the same manner as revenue….”
51. Subba Rao J., delivering a separate dissenting judgment held:
“51. It is also well settled that the guarantee of equal
protection applies against substantive as well as procedural
laws. Jennings in his “Law of the Constitution”, 3rd Edn.,
p.49 describes the idea of equality of treatment thus:..’
52. It is true that the view of Subba Rao J. was the minority view.
However, there was no difference between the majority and the minority
with the proposition of law summarized by Subba J. as quoted above.
53. In Meenakshi Mills v. Vishvanatha Sastri reported in AIR
1955 SC 13, a Constitution Bench of this Court held:
“6. …. Article 14 of this Part guarantees to all persons the
right of equality before the law and equal protection of the
laws within the territory of India. This article not only
guarantees equal protection as regards substantive laws but
procedural laws also come within its ambit. The implication
of the article is that all litigants similarly situated are entitled
to avail themselves of the same procedural rights for relief,
and for defence with like protection and without
discrimination. The procedural provisions of Act 30 of 1947
had therefore to stand the challenge
of Article 14 and could
only be upheld provided they withstood that challenge.”
54. In Budhan Choudhry v. State of Bihar reported in AIR 1955
SC 191, a seven Judge Constitution Bench of this Court decided a
challenge to Section 30 of the Cr.P.C observing that:
“5. The provisions of Article 14 of the Constitution have come
up for discussion before this Court in a number of cases,
namely, Chiranjit Lal Chowdhuri v. Union of India [AIR 1951
SC 41], State of Bombay v. F.N. Balsara [AIR 1951 SC 318],
State of West Bengal v. Anwar Ali Sarkar [AIR 1952 SC 75],
Kathi Raning Rawat v. State of Saurashtra[AIR 1952 SC 123],
Lachmandas Kewalram Ahuja v. State of Bombay [AIR 1952
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SC 235] and Qasim Razvi v. State of Hyderabad [AIR 1953
SC 156] and Habeeb Mohamad v. State of Hyderabad [AIR
1953 SC 287]. It is, therefore, not necessary to enter upon
any lengthy discussion as to the meaning, scope and effect of
the article in question. It is now well established that while
Article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation. In
order, however, to pass the test of permissible classification
two conditions must be fulfilled, namely, (i) that the
classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped
together from others left out of the group and (ii) that
differentia must have a rational relation to the object sought
to be achieved by the statute in question. The classification
may be founded on different bases; namely, geographical, or
according to objects or occupations or the like. What is
necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration.
It is also well established by the decisions of this Court that
Article 14 condemns discrimination not only by a substantive
law but also by a law of procedure. The contention now put
forward as to the invalidity of the trial of the appellants has,
therefore to be tested in the light of the principles so laid down
in the decisions of this Court.”
55. The non-obstante
Clause in Section 3(1) of the 1986 Act for
Muslim Women provides, in effect and substance, that a divorced Muslim
woman would only be entitled to maintenance as provided in Section
3(1) of the 1986 Act for Muslim Women as enumerated hereinabove,
notwithstanding any other law including Section 125 of the Cr.PC.
56. It is now settled that a divorced Muslim woman cannot claim
maintenance under Section 125 of the Cr.P.C. from her husband after
the enactment of the 1986 Act for Muslim Women. However, under
Section 3 read with Section 4 of the 1986 Act for Muslim Women, a
divorced Muslim woman is entitled to an order of maintenance, if she is
unable to maintain herself after the Iddat period and has not remarried.
Section 5 of the 1986 Act for Muslim Women provides that a divorced
woman and her former husband might decide by an affidavit or any
other declaration in writing, that they would prefer to be governed by the
provisions of Section 125 to 128 of the Cr.P.C.
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57. The constitutional validity of the 1986 Act for Muslim Women
has been upheld by this Court in Danial Latifi and Another v. Union of
India (supra). There is however, no authoritative decision of this Court
on the question of whether the Family Courts have jurisdiction to decide
an application of a Muslim Woman for maintenance under the provisions
of the 1986 Act for Muslim women.
58. As observed above Section 7 of the Family Courts Act
expressly confers jurisdiction to a Family Court to exercise all jurisdiction
exercisable by any District Court or any Subordinate Civil Court, under
any law for the time being in force, in respect inter alia of all suits and
proceedings for maintenance. The Family Court has also expressly been
conferred with jurisdiction exercisable by a Magistrate of the First Class
under Chapter IX of the Cr.P.C relating to maintenance. Under Section
7(2)(b) of the Family Courts Act, the Family Court may exercise such
other jurisdiction as may be conferred on it by any other enactment.
59. The Family Courts Act, enacted long before enactment of the
1986 Act for Muslim Women, obviously did not contemplate the later
legislation. There is, therefore, no specific mention of the 1986 Act for
Muslim Women in the Family Courts Act.
60. Section 8 excludes the jurisdiction of District Court or
Subordinate Civil Court in respect of any suit or proceeding of the nature
referred to in the Explanation to sub-Section (1) of Section 7 and also
excludes the jurisdiction of a Magistrate in relation to an application
under Chapter IX of the Cr.P.C., once a Family Court is constituted with
territorial jurisdiction coextensive with that of the District Courts or the
Subordinate Civil Courts or the Courts of First Class Magistrates under
Chapter IX of the Cr.P.C. There has not been any amendment in the
Family Courts Act after enactment of the 1986 Act for Muslim Women
to expressly confer jurisdiction on Family Courts in respect of proceedings
under the 1986 Act for Muslim Women.
61. It has thus been argued on behalf of the Respondent that the
Family Courts do not have the jurisdiction exercisable by a Magistrate
of the First Class under the 1986 Act for Muslim Women, since the 1986
Act for Muslim Women, does not confer any such jurisdiction on the
Family Courts, and Section 7 read with Section 8 of the Family Courts
Act only clothes the Family Court with the jurisdiction of the First Class
Magistrate in respect of proceeding for maintenance under Chapter IX
of the Cr.P.C.
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62. If there is any ambiguity, with regard to the jurisdiction of the
Family Court, by reason of use of the expression subordinate Civil Court
in Section 7(1)(a) and (b) of the Family Courts Act and the specification
of Magistrate of the First Class exercising jurisdiction under Chapter IX
of the Cr.P.C. in Section 7(2)(a) thereof, this Court is duty bound to
clear the ambiguity by interpreting the law in consonance with the
fundamental rights conferred under Articles 14 and 15 of the Constitution,
and the country’s commitments under International Instruments and
Covenants such as the CEDAW, keeping in mind the fact that the Family
Courts Act was enacted two years before the 1986 Act for Muslim
Women.
63. In Iqbal Bano v. State of UP and Another4, this Court held
that the 1986 Act for Muslim Women only applies to divorced women
and not to a woman who was not divorced. In the aforesaid case, this
Court held that proceedings under Section 125 of the Cr.P.C. were civil
in nature, and if it were noticed that there was a divorced Muslim woman
who had made an application under Section 125 Cr. P.C., it was open to
the Court to treat the same as a petition under the 1986 Act for Muslim
Women, considering the beneficial nature of the legislation.
64. Sub-section (2) of Section 3 provides that 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) of Section 3 have not been delivered to a divorced woman
on her divorce, she or any one duly authorized 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.  In my view, a Family Court having jurisdiction is to
be deemed to be the Court of a Magistrate, for the purpose of deciding
the claim of a divorced Muslim Woman to maintenance, on a harmonious
conjoint reading and construction of Sections 7 and 8 of the Family Courts
Act with Sections 3(2), 3(3), 4(1), 4(2), 5 and 7 of the 1986 Act for
Muslim Women, in the light of the overriding provision of Section 20 of
the Family Courts Act.
65. Sub-section (2) of Section 3 is an enabling provision which
enables a divorced Muslim woman to make an application to a Magistrate
for an order for payment of maintenance or mehr or dower or delivery
of properties, as the case may be. The non-obstante clause is restricted
4 (2007) 6 SCC 785
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to sub-section (1) of Section 3 and does not cover sub-section (2) of
Section 3 of the 1986 Act for Muslim Women. There is no conflict
between Section 3(2) of the 1986 Act for Muslim women and the Family
Courts Act. On the other hand, Section 20 of the Family Courts Act,
1984 gives overriding effect to the Family Courts Act notwithstanding
anything therewith contained in any other law in force. The Family Court
is to exercise all the jurisdiction exercisable by any District Court or any
other subordinate Civil court in respect of a proceeding for maintenance.
66. The 1986 Act for Muslim Women is essentially a civil law,
which makes provisions for maintenance for divorced Muslim women
and not a criminal statute. The 1986 Act for Muslim women does contain
any penal provision for any default which enables a divorced Muslim
Woman to apply for maintenance under the said Act. The penal provision
of the 1986 Act for Muslim Women is only to enforce compliance with
an order under Section 31 of the said Act. The punishment of
imprisonment is only for non-compliance with the order of maintenance.
The Magistrate referred to in Section 3(2) and other Sections of the
1986 Act, is, for all practical purposes, to be deemed to be a Civil Court
subordinate to the District Court.
67. Though divorced Muslim women are excluded from the
purview of Section 125 of the Cr.PC by reason of the 1986 Act for
Muslim Women, Parliament has in its wisdom considered it necessary to
make
provisions for expeditious orders in applications for maintenance
filed by divorced Muslim women. It is with this object in mind that Muslim
women have been given the liberty of approaching the Magistrate and
the Magistrate is required to make an order within one month from the
date of filing of the application and the order of the Magistrate is
executable in the same manner for levying fines under the Cr.PC.
Violation of an order of the Magistrate entails sentence of imprisonment
for a term which might extend to one year or until payment if sooner
made, subject to such person being heard in defence and the sentence
being imposed according to the provisions of the Cr.PC.
68. In my view, it was never the intention of the 1986 Act for
Muslim Women to deprive divorced Muslim Women from the litigant
friendly procedures of the Family Courts Act and denude Family Courts
of jurisdiction to decide applications for maintenance of divorced Muslim
women.
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69. If proceedings under Section 125 Cr.P.C. are civil in nature as
held by this Court in Iqbal Bano (Supra), the Court of the Magistrate
dealing with an application under Section 125 Cr.P.C. is to be deemed a
Civil Court for the purpose of deciding the application under Section 125
Cr.P.C. On a parity of reasoning, an application under Section 3/4 of the
1986 Act for Muslim Women is also civil in nature. The Court deciding
an application under Section 3/4 of the 1986 Act for Muslim Women is
to be deemed to be a Civil Court.
70. Thus, the Family Court would have jurisdiction under Section
7 of the Family Courts Act to entertain an application under Section 3
and 4 of 1986 Act for Muslim Women, since the Court of Magistrate
dealing with such an application is to be deemed to be a Civil Court
subordinate to the District Court.
71. A literal and rigid interpretation of the expression “Subordinate
Civil Court” to single out divorced Muslim Women seeking maintenance
from their husbands, access to Family Courts when all other women
whether divorced or not and even Muslim Women not divorced can
approach Family Courts would be violative of Article 14 of the
Constitution.
72. It is true, that a matter which should have been, but has not
been provided for in a statute cannot be supplied by courts, as to do so
will be legislation and not construction. But there is no presumption that
a ‘casus omissus’ exists and language
permitting, the courts should avoid
creating a ‘casus omissus’ where there is none.
73. To quote Denning, L.J. in Seaford Court Estates Ltd. v. Asher
reported in (1949) 2 All ER 155:
“When a defect appears a judge cannot simply fold his hands
and blame the draftsman. He must set to work on the
constructive task of finding of the intention of Parliament
and then he must supplement the written words so as to give
‘force and life’ to the intention of the Legislature. A judge
should ask himself the question how, if the makers of the Act
had themselves come across this ruck in the texture of it, they
would have straightened it out? He must then do as they would
have done. A judge must not alter the material of which the
act is woven, but he can and should iron out the creases”.
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74. The Supreme Court, while dealing with the definition of
‘Industry’ in the Industrial Disputes Act, 1947, in Bangalore Water
Supply v. A. Rajappa5, approved the rule of construction stated by
Denning, L.J. This Court found the definition too general and ambiguous.
BEG, C.J.I., said that the situation called for “some judicial heroics to
cope with the difficulties raised”. Krishna Iyer, J. who delivered the
leading majority judgment in that case referred with approbation to the
passage extracted above, from the judgment of Denning, L.J. in Seaford
Court Estates Ltd. v. Asher (supra).
75. The proposition of law which emerges from the judgments
referred to above is that, in discharging its interpretative function, the
court can even correct obvious drafting errors. In an appropriate case,
“the court will add words, or omit words or substitute words”. But “before
interpreting a statute in this way the Court must be abundantly sure of
three matters: (1) the intended purpose of the statute or provision in
question, (2) that by inadvertence the draftsman and Parliament failed
to give effect to that purpose in the provision in question; and (3) the
substance of the provision Parliament would have made, although not
necessarily the precise words Parliament would have used, had the error
in the Bill been noticed.”
76. Of course in this case, this Court has not added, omitted or
substituted anything. This Court has only given a purposive interpretation
to the
expression Subordinate Civil Court in Section 7 of the Family
Courts Act to include the Court of a Magistrate empowered to entertain
proceedings for maintenance under the 1986 Act for Muslim Women,
which are in essence and substance, civil proceedings.
77. To quote Venkatarama Aiyar, J. in Tirath Singh v. Bachittar
Singh6" where the language of a statute, in its ordinary meaning
and grammatical construction, leads to a manifest contradiction of
the apparent purpose of the enactment, or to some inconvenience
or absurdity, hardship or injustice, presumably not intended, a
construction may be put upon it which modifies the meaning of the
words, and even the structure of the sentence.”
78. Tirath Singh v. Bachittar Singh (supra) has been followed
in innumerable judgments of this Court and the passage extracted above
5 AIR 1978 SC 548
6 AIR 1955 SC 830
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has been quoted with approval in Modern School v. Union of India
reported in (2004) 9 SCC 741.
79. I am of the view that the Family Court, for the reasons discussed
above, had the jurisdiction to convert the application of the Appellant
under Section 125 of the Cr.P.C into an application under Section 3 of
the 1986 Act for Muslim Women and to decide the same.
80. The appeal should, in my view, be allowed. The judgment and
order under appeal are liable to be set aside.
O R D E R
In view of difference of opinions and the distinguishing judgments
(Hon’ble R. Banumathi, J. dismissed the appeal and Hon’ble  Indira
Banerjee, J. allowed the appeal), the matter be placed before Hon’ble
the Chief Justice of India for referring the matter to the Larger Bench.
Divya Pandey
Matter referred to Larger Bench
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RHEA CHAKRABORTY
v.
STATE OF BIHAR & ORS.
(Transfer Petition (Crl.) No. 225 of 2020)
AUGUST 19, 2020
[HRISHIKESH ROY, J.]
Code of Criminal Procedure, 1973 – s. 406 – Power of
Supreme Court to transfer investigation (not case or appeal) – Held:
s. 406 CrPC empowers the Supreme Court to transfer cases and
appeals – However, transfer of investigation on the other hand was
negated by the Supreme Court in the case of Ram Chander Singh
Sagar and Anr. v. State of Tamil Nadu – Therefore, having considered
the contour of the power u/s. 406 CrPC, it must be concluded that
only cases and appeals (not investigation) can be transferred.
Code of Criminal Procedure, 1973 – s. 174 – Whether the
proceeding u/s. 174 CrPC conducted by the police to inquire into
the unnatural death, can be termed as an investigation – Held: The
proceeding u/s. 174 CrPC is limited to the inquiry carried out by
the police to find out the apparent cause of unnatural death – These
are not in the nature of investigation, undertaken after filing of FIR
u/s. 154 CrPC.
Code of Criminal Procedure, 1973 – s.181 (4) – Place of
trial in case of certain offences – Unnatural death of an actor in
Mumbai – Father of deceased actor filed FIR u/ss. 341, 342, 380,
406, 420, 306, 506 and 120B of IPC in Patna alleging criminal
breach of trust and misappropriation of money along with other
offences – Whether it was within the jurisdiction of the Patna Police
to register the FIR and commence investigation of the
alleged
incidents which took place in Mumbai – Held: Registration of FIR
is mandated when information on cognizable offence is received by
the police – Precedents suggest that at the stage of investigation, it
cannot be said that the concerned police station does not have
territorial jurisdiction to investigate the case – In the instant case,
the allegation relating to criminal breach of trust and
misappropriation of money which were to be eventually accounted
for in Patna (where the Complainant resides), could prima facie
[2020] 7 S.C.R. 369
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indicate the lawful jurisdiction of the Patna Police – This aspect
was dealt succinctly by Supreme Court in Lee Kun Hee, President,
Samsung Corporation, South Korea & Ors. v. State of U.P. – Thus, no
illegality was committed by Patna Police in registering the complaint
– Also, at the stage of investigation, they were not required to transfer
the FIR to Mumbai Police.
Code of Criminal Procedure, 1973 – Delhi Special Police
Establishment Act, 1946 – s.6 – Unnatural death of an actor in
Mumbai – Inquiry by Police u/s. 174 CrPC – The father of the
deceased actor filed FIR u/ss. 341, 342, 380, 406, 420, 306, 506
and 120B of IPC in Patna – The Bihar Government gave consent to
transfer the investigation to the CBI u/s. 6 DSPE Act – No objection
to the petitioner if investigation is conducted by CBI – However, in
future, if commission of cognizable offence u/s. 175(2) CrPC is
determined, the possibility of parallel investigation by the Mumbai
Police cannot be ruled out – Held: The ongoing investigation by
the CBI is lawful – In the event, a new case is registered at Mumbai
on the same issue, in the fitness of things, it would be appropriate if
the latter case too gets investigated by the same agency, on the
strength of Supreme Court’s order – Such enabling order will make
it possible for the CBI to investigate the new case, avoiding the
rigors of s. 6 of the DSPE Act, requiring the consent from the State
of Maharashtra –
Therefore, CBI directed to investigate the new
case as well.
Disposing of the Transfer Petition, the Court
HELD: TRANSFER POWER UNDER SECTION 406
CRPC
1. Section 406 CrPC empowers the Supreme Court to
transfer cases and appeals. The scope of exercise of this power
is for securing the ends of justice. The precedents suggest that
transfer plea under Section 406 CrPC were granted in cases where
the Court believed that the trial may be prejudiced and fair and
impartial proceedings cannot be carried on, if the trial continues.
However, transfer of investigation on the other hand was negated
by this Court in the case of Ram Chander Singh Sagar and Anr.
vs. State of Tamil Nadu, (1978) 2 SCC 35. [Para 15][380-C-D]
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2. Having considered the contour of the power under
section 406 CrPC, it must be concluded that only cases and appeals
(not investigation) can be transferred. The ratio in Ram Chander
Singh Sagar and Anr., is clearly applicable in the present matter.
[Para 17][381-D-E]
SCOPE OF SECTION 174 CRPC PROCEEDING
3. The proceeding under Section 174 CrPC is limited to
the inquiry carried out by the police to find out the apparent cause
of unnatural death. These are not in the nature of investigation,
undertaken after filing of FIR under Section 154 CrPC. In the
instant case, in Mumbai, no FIR has been registered as yet. The
Mumbai Police has neither considered the matter under Section
175 (2) CrPC, suspecting commission of a cognizable offence nor
proceeded for registration of FIR under Section 154 or referred
the matter under Section 157 CrPC, to the nearest magistrate
having jurisdiction. [Para 18][381-E-G]
4. In the present case, the Mumbai Police has attempted
to stretch the purview of Section 174 without drawing up any FIR
and therefore, as it appears, no investigation pursuant to
commission of a cognizable offence is being carried out by the
Mumbai police. They are yet to register a FIR. Nor they have
made a suitable determination, in terms of Section 175(2) CrPC.
Therefore, it is pre-emptive and premature to hold that a parallel
investigation is being carried out by the Mumbai Police. In case
of a future possibility of cognizance being taken by two courts
in
different jurisdictions, the issue could be resolved under Section
186 CrPC and other applicable laws. No opinion is therefore
expressed on a future contingency and the issue is left open to
be decided, if needed, in accordance with law. [Para 20]
[382-F-H]
JURISDICTION OF PATNA POLICE TO REGISTER
COMPLAINT
5. Having regard to the law enunciated by this Court it must
be held that the Patna police committed no illegality in registering
the Complaint. Looking at the nature of the allegations in the
Complaint which also relate to misappropriation and breach of
trust, the exercise of jurisdiction by the Bihar Police appears to
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be in order. At the stage of investigation, they were not required
to transfer the FIR to Mumbai police. For the same reason, the
Bihar government was competent to give consent for entrustment
of investigation to the CBI and as such the ongoing investigation
by the CBI is held to be lawful. [Para 30][386-D-F]
DIRECTION ON INVESTIGATION
6. The ongoing investigation by the CBI is held to be lawful.
In the event a new case is registered at Mumbai on the same
issue, in the fitness of things, it would be appropriate if the latter
case too gets investigated by the same agency, on the strength
of this Court’s order. Such enabling order will make it possible
for the CBI to investigate the new case, avoiding the rigors of
Section 6 of the Delhi Special Police Establishment Act, 1946
requiring consent from the State of Maharashtra. [Para 36]
[389-E]
7. In such a backdrop, to ensure public confidence in the
investigation and to do complete justice in the matter, this Court
considers it appropriate to invoke the powers conferred by Article
142 of the Constitution. As a Court exercising lawful jurisdiction
for the assigned roster, no impediment is seen for exercise of
plenary power in the present matter. Therefore while according
approval for the ongoing CBI investigation, if any other case is
registered on the death of the actor and the surrounding
circumstances of his unnatural death, the CBI is directed to
investigate the new
case as well. [Para 41][391-A-C]
Ram Chander Singh Sagar and Anr. v. State of Tamil
Nadu (1978) 2 SCC 35 : [1978] 2 SCR 604; Manoj K
Sharma v. State of Chhatisgarh (2016) 9 SCC 1 : [2016]
7 SCR 154; Lalita Kumari v. Govt. of UP (2014) 2 SCC
1 : [2013] 14 SCR 713; Satvinder Kaur v. State (Govt
of NCT of Delhi) (1999) 8 SCC 728 : [1999] 3 Suppl.
SCR 348; Y Abraham Ajith v. Inspector of Police,
Chennai & Anr. (2004) 8 SCC 100 : [2004] 3 Suppl.
SCR 604; Asit Bhattacharjee v. Hanuman Prasad Ojha
(2007) 5 SCC 786 : [2007] 6 SCR 939; Rasiklala
Dalpatram Thakkar v. State of Gujarat (2010) 1 SCC
1 : [2008] 7 SCR 1102; Lee Kun Hee, President,
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Samsung Corporation, South Korea and Others v. State
of Uttar Pradesh and Ors. (2012) 3 SCC 132 : [2012]
4 SCR 287 – relied on.
Arnab Ranjan Goswami v. Union of India (2020) SCC
Online SC 462; Naresh Kavarchand Khatri v. State of
Gujarat (2008) 8 SCC 300 : [2008] 7 SCR 1102; State
of W.B. v. Committee for Protection of Democratic Rights
(2010) 3 SCC 571 : [2010] 2 SCR 979 – referred to.
Case Law Reference
[1978] 2 SCR 604
relied on
Para 15
[2016] 7 SCR 154
relied on
Para 19
[2013] 14 SCR 713
relied on
Para 23
[1999] 3 Suppl. SCR 348
relied on
Para 24
[2004] 3 Suppl. SCR 604
relied on
Para 25
[2007] 6 SCR 939
referred to
Para 26
[2008] 7 SCR 1102
relied on
Paras 27, 28
[2012] 4 SCR 287
relied on
Para 29
[2010] 2 SCR 979
referred to
Para 33
CRIMINAL ORIGINAL JURISDICTION: Transfer Petition
(Criminal) No. 225 of 2020.
Petitions Filed Under Section 406 of the code of Criminal
Procedure, 1973 read with Order XXXIX of the Supreme Court Rules,
2013 for Transfer of F.I.R. No. 241 of 2020 Dated 25.07.2020.
Tushar Mehta, SG, Shyam Divan, Vikas Singh, Maninder Singh,
R. Basant, Dr. A.M. Singhvi, Sr. Advs., Satish Maneshinde, Malak Manish
Bhatt, Ms. Devanshi Singh, Gurdeep Sachar, Ms. Chandni Ghatak, Rajat
Bector, Ms. Anandini Fernandes, Nikhil Maneshinde, Varun Singh, Nitin
Saluja, Venkatesh, Ms. Deepika Kalia, Akshay Dev, Ms. Deepti Arya,
Rishabh Rana, Mritunjay Singh, Ms. Satwik Mishra, Vikas Maini, Suhael
Buttan, Kapish Seth, Rajat Nair, Kanu Agrawal, B.V. Balram
Das, Rahul
Chitnis, Sachin Patil, Amit Bhandari, Geo Joseph, Manu Sharma, Akshay
Sahay, Keshav Mohan, Prashant Kumar, Rishi Kumar Awasthi, Piyush
Vatsa, Ms. Ritu M. Arora, Prabhas Bajaj, Santosh Kumar - I, Arvind
Kumar Sharma, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
HRISHIKESH ROY, J.
1. This Transfer Petition is filed under section 406 of the Code of
Criminal Procedure, 1973 (for short “CrPC”) read with Order XXXIX
of the Supreme Court Rules, 2013 with prayer for transfer of the FIR
No. 241 of 2020 (dated 25.7.2020) under Sections 341, 342, 380, 406,
420, 306, 506 and 120B of the Indian Penal Code, 1860 (for short “IPC”)
registered at the Rajeev Nagar Police Station, Patna and all consequential
proceedings, from the jurisdiction of the Additional Chief Judicial
Magistrate III, Patna Sadar, to the Additional Chief Metropolitan
Magistrate, Bandra Mumbai. The matter relates to the unnatural death
of the actor Sushant Singh Rajput on 14.6.2020, at his Bandra residence
at Mumbai. The deceased resided within Bandra Police Station jurisdiction
and there itself, the unnatural death under section 174 of CrPC was
reported.
2. The petitioner is a friend of the deceased, and she too is in the
acting field since last many years. As regards the allegations against the
petitioner in the FIR, the petitioner claims that she has been falsely
implicated in the Patna FIR, filed by Krishan Kishor Singh (respondent
no. 2) – the father of the deceased actor. The petitioner and the deceased
were in a live-in relationship but on 8.6.2020, a few days prior to the
death of the actor, she had shifted to her own residence at Mumbai.
According to the petitioner,the
Mumbai Police is competent to undertake
the investigation, even for the FIR lodged at Patna.
3. Heard Mr. Shyam Divan, learned Senior Counsel appearing
for the petitioner, Mr. Maninder Singh, learned Senior Counsel appearing
on behalf of Respondent No. 1 (State of Bihar), Mr. Vikas Singh, learned
Senior Counsel appearing on behalf of respondent No. 2 (Complainant),
Dr. A.M. Singhvi and Mr. R. Basant, learned Senior Counsel appearing
on behalf of respondent No. 3 (State of Maharashtra) and Mr. Tushar
Mehta, learned Solicitor General of India appearing on behalf of
respondent No. 4 (Union of India)
4. The petitioner contends that the incidents alleged in the
Complaint lodged by the father of the deceased, have taken place entirely
within the jurisdiction of State of Maharashtra and therefore, the
Complaint as received, should have been forwarded to the jurisdictional
police station at Bandra, Mumbai for conducting the investigation.
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However, despite want of jurisdiction, the Complaint was registered at
Patna only because of political pressure brought upon the Bihar Police
authorities. Mr Shyam Divan, the learned Senior Counsel for the Petitioner
argues that the courts in Bihar do not exercise lawful jurisdiction in the
subject matter of the Complaintand since the acts alleged in the Complaint
are relatable to Mumbai jurisdiction, the mere factum of Complainant
being a resident of Patna, does not confer jurisdiction on the Bihar police
to conduct the investigation. Adverting to the subsequent transfer of the
investigation to the CBI, Mr. Divan argues that since the Bihar police
lacked jurisdiction to investigate the allegations in the Complaint, the
transfer of the investigation to the CBI on Bihar Government’s consent,
would not amount to a lawful consent of the State government, under
Section 6 of the Delhi Special Police Establishment Act, 1946 (for short
“DSPE Act”). The FIR according to the petitioner is contradictory and
the Complaint fails to disclose how the alleged actions of the petitioner,
led to the suicidal death of the actor. The petitioner projects that she has
fully co-operated with the Mumbai Police in their inquiry but will have
no objection if the investigation is conducted by the CBI. Mr. Shyam
Divan the learned Senior Counsel submits that justice needs to be done
in this case and powers under Article 142 of the Constitution can be
invoked by the Court.
5.
Representing the State of Bihar, Mr. Maninder Singh, the learned
Senior Counsel submits that the Complaint disclosed a cognizable offence
and therefore, it was incumbent for the Patna Police to register the FIR
and proceed with the investigation. Since allegations of criminal breach
of trust, Cheating and defalcation of money from the account of the
deceased are alleged, the consequences of the offence are projected to
be within the jurisdiction of the State of Bihar. The Senior Counsel
highlights that the Mumbai Police was conducting the enquiry into the
unnatural death of the actor u/s 174, 175 CrPC and such proceeding
being limited to ascertaining the cause of death, does not empower
Mumbai Police to undertake any investigation, on the allegations in the
Complaint of the Respondent No 2, without registration of an FIR at
Mumbai. Referring to the non-cooperation and obstruction of the
Maharashtra authorities to the SIT of Bihar Police which reached Mumbai
on 27.07.2020 and the quarantined detention of the Superintendent of
Police, Patna who had reached Mumbai on 02.08.2020, senior counsel
argues that the Mumbai Police was trying to suppress the real facts and
were not conducting a fair and professional inquiry. Since no investigation
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relatable to the allegations in the complaint was being conducted and
FIR was not registered by the Mumbai Police, the action of the Bihar
Police in registering the Complaint, is contended to be legally justified.On
that basis,the Bihar Government’s consent for entrustment of the
investigation to the CBI is submitted to satisfy the requirement of Section
6 of the DSPE Act. Besides, as the petitioner herself has called for a
CBI investigation and as the CBI has since registered a case and
commenced their investigation,(on the request of the State of Bihar), the
Senior Counsel submits that this transfer petition is infructuous.
6. Projecting the agony of the deceased’s father, Mr. Vikas Singh,
the learned Senior Counsel submits that the Complainant has lost his
only son under suspicious circumstances and was naturally interested in
a fair investigation to unravel the truth. The inquiry by the Mumbai Police
under section 174 of the CrPC is not an investigation of the complainant’s
allegations and therefore the registration of the case and investigation
into those allegations by the Bihar Police is contended to be justified.
Since only an investigation (not a case or appeal) is pending at Patna,
and a legally competent investigation has commenced, invocation of
Section 406 power by this Court to transfer the investigation, is projected
to be not merited. When misappropriation and criminal breach of trust is
alleged in
respect of the assets of the deceased actor and the concerned
property relatable to the alleged offence, will have to be accounted
eventually to the Complainant (as a Class I legal heir of the deceased),
the action of the Patna Police is contended to be within jurisdiction,
under Section 179 read with Section 181(4) of the CrPC which speaks
of consequences ensuing at another place, as a result of the alleged
crime.
7. Representing the State of Maharashtra, Dr. Abhishek Manu
Singhvi, the learned Senior Counsel submits that following the unnatural
death of Sushant Singh Rajput on 14.06.2020 at his Bandra residence,
the Mumbai Police registered an Accidental Death Report(ADR) and
commenced inquiry under Section 174 of the CrPC to ascertain the
cause of death and also to determine whether the death was the result
of some criminal act committed by some other persons. In course of the
inquiry, the statements of 56 persons were recorded and other evidence
such as the Post Mortem report, Forensic report etc have been collected.
If the inquiry discloses commission of a cognizable offence, the Mumbai
police will register a FIR. According to Dr. Singhvi, there can be no
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outer time limit for conclusion of Section 174 or Section 175 CrPC
proceedings. The State of Maharashtra Counsel argues that every
offence shall ordinarily be inquired into and tried by a Court within whose
local jurisdiction, the offence was committed and on that basis, Dr Singhvi
submits, that the Bihar police should have transferred the Complaint to
the Mumbai Police authorities. Alternately, they could have registered a
“zero FIR” and then should have transferred the case for investigation
to Mumbai police. Pointing towards potential misuse, Dr. Singhvi submits
that if registration of Complaint in another state is permitted, it will enable
a person to choose the investigating authority and will obstruct exercise
of lawful jurisdiction by the local police.This will impact the country’s
federal structure. The Senior Counsel refers to media reports to project
that the Bihar Police were hesitant to register the Complaint of
Respondent No 2 but they were prevailed upon by political pressure.
The Maharashtra counsel submits that the father and other family
members of the deceased in their statements to the Mumbai Police,
never mentioned about the allegations in the Complaint and those are
projected to be after thoughts and improvements. Under the constitutional
scheme, the States have exclusive power to investigate a crime and the
Senior Counsel accordingly argues that crime investigation cannot be
routinely transferred to the Central Agency. Referring to
the reasons(a)
sensitivity and (b) Inter-state ramifications, given by the Bihar Police
for entrusting the investigation to the CBI, Dr. Singhvi argues that the
reasons are neither germane nor bona fide. He submits that ordinarily,
the local police should conduct investigation into any reported crime and
entrustment of the investigation to the CBI must be an exception to
meet extraordinary exigencies, but here consent was given by Bihar
government, for political exigencies.
8. Mr Tushar Mehta, the learned Solicitor General of India, appears
for the Union of India and the CBI. He projects that the Maharashtra
Police is yet to register any FIR but is conducting only a limited inquiry
under section 174 of the CrPC, into the unnatural death of the actor. In
the absence of any FIR by the Mumbai Police following the death of the
actor on 14.06.2020, the FIR registered at Patna at the instance of the
deceased’s father is projected to be the only one pending. He therefore
contends that the present matter does not relate to two cases pending in
two different states. Referring to the contradictory stand and the parallel
allegation of state’s Police being influenced by external factors in both
states, Mr. Mehta submits that this itself justifies entrustment of the
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investigation to an independent Central Agency. The learned Solicitor
General then points out that by acceding to the request made by the
State of Bihar, the CBI has registered the FIR and commenced
investigation. Besides the Directorate of Enforcement, a central agency,
is also acting under the Prevention of Money Laundering Act, 2002. He
therefore argues that a fair and impartial inquiry can be ensured if the
police of either state are kept away from investigating the alleged crime,
relating to the suspicious death of the film actor. Adverting to the affidavit
of the Maharashtra Police that they have recorded the statements of 56
persons in the section 174 proceedings, the Solicitor General submits
that since FIR is not yet registered and the Mumbai Police is discharging
limited functions under section 174 of the CrPC, the investigation of any
alleged crime following registration of FIR is yet to legally commence in
Mumbai and as such, there is no case pending in the State of Maharashtra
which can justify the invocation of powers under section 406 of the
CrPC.
9. Under the federal design envisaged by the Constitution, Police
is a state subject under List II of Seventh Schedule of the Constitution.
Therefore, investigation of a crime should normally be undertaken by
the concerned state’s police, where the case is registered. There can be
situations where a particular crime by virtue of its nature and ramification,
is
legally capable of being investigated by police from different states or
even by other agencies. The entrustment of investigation to the CBI is
permitted either with consent of the concerned state or on orders of the
constitutional court. However, investigation of a crime by multiple
authorities transgressing into the others domain, is avoidable.
10. In the instant case, the petitioner repose confidence on Mumbai
police. The records of the case produced before this Court, does not
prima facie suggest any wrong doing by the Mumbai Police. However,
their obstruction to the Bihar police team at Mumbai could have been
avoided since it gave rise to suspicion on the bonafide of their inquiry.
The Police at Mumbai were conducting only a limited inquiry into the
cause of unnatural death, under Section 174 CrPC and therefore, it cannot
be said with certainty at this stage that they will not undertake an
investigation on the other aspects of the unnatural death, by registering a
FIR.
11. Uncertain about the future contingency at Mumbai, the father
of the deceased has filed the Complaint at Patna, levelling serious
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allegations against the petitioner following which, the FIR is registered
and the Bihar Police has started their investigation. The case is now
taken over by the CBI at the request of the Bihar government. The
petitioner has no objection for investigation by the CBI, but is sceptical
about the bonafide of the steps taken by the Bihar government and the
Patna police.
12. On the other hand, the projection from the side of the
Complainant and the Bihar government is that the Mumbai Police even
during the limited inquiry under Section 174 CrPC, are attempting to
shield the real culprits under political pressure. This is however, stoutly
refuted by the State of Maharashtra whose stand is that the Bihar police
has no jurisdiction to investigate the crime where, the incident and criminal
acts if any, have occurred within the State of Maharashtra.
13. Transfer of investigation to the CBI cannot be a routine
occurrence but should be in exceptional circumstances. One factor which
however is considered relevant for induction of the Central Agency is to
retain “public confidence in the impartial working of the State agencies”,
as was recently reiterated for the Bench by Justice Dhananjaya Y
Chandrachud, in Arnab Ranjan Goswami vs. Union of India 2020
SCC Online SC 462. It is also the consistent view of the Court that it is
not for the accused to choose the investigating agency. In the instant
case, political interference against both states is alleged which has the
potential of discrediting the investigation. The legal process must therefore
be focused upon revelation of the correct facts through credible and
legally acceptable investigation. It must be determined whether the
unnatural death was the result of some criminal acts. In order to lend
credibility to the investigation and its conclusion,it would be desirable in
my view, to specifythe authority, which should conduct the investigation
in this matter.
14. At this stage, having regard to the respective stand of the
parties,following core issues arise for consideration in this case:
(a) Whether this Court has power to transfer investigation(not
case or appeal) under Section 406 of the CrPC;
(b) Whether the proceeding under Section 174 CrPC conducted
by the Mumbai Police to inquire into the unnatural death, can be termed
as an investigation;
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(c) Whether it was within the jurisdiction of the Patna Police to
register the FIR and commence investigation of the alleged incidents
which took place in Mumbai?As a corollary, what is the status of the
investigation by the CBI on the consent given by the Bihar government;
and
(d) What is the scope of the power of a single judge exercising
jurisdiction under section 406 of the CrPC and whether this Court can
issue direction for doing complete justice, in exercise of plenary power.
TRANSFER POWER UNDER SECTION 406 CRPC
15. Section 406 CrPC empowers the Supreme Court to transfer
cases and appeals. The scope of exercise of this power is for securing
the ends of justice. The precedents suggest that transfer plea under
Section 406 CrPC were granted in caseswhere the Court believed that
the trial may be prejudiced and fair and impartial proceedings cannot be
carried on, if the trial continues. However, transfer of investigation on
the other hand was negated by this Court in the case of Ram Chander
Singh Sagar and Anr. vs. State of Tamil Nadu, (1978) 2 SCC
35.Writing the judgment Justice V R Krishna Iyer,declared that:-
“The Code of Criminal Procedure clothes this Court with
power under Section 406 to transfer a case or appeal from
one High Court or a Court subordinate to one High Court to
another High Court or to a Court subordinate thereto. But, it
does not clothe this Court with the power to transfer
investigations from
one police station to another in the country
simply because the first information or a remand report is for
warded to a Court. The application before us stems from a
misconception about the scope of Section 406. There is as yet
no case pending before any Court as has been made clear in
the counter affidavit of the State of Tamil Nadu. In the light
of this counter affidavit, nothing can be done except to dismiss
this petition.
“2. If the petitioners are being directed to appear in a far-off
court during investigatory stage it is for them to move that
court for appropriate orders so that they may not be tormented
by long travel or otherwise teased by judicial process. If
justice is denied there are other redresses, not under Section
406, though it is unfortunate that the petitioners have not
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chosen to move that court to be absolved from appearance
until necessitated by the circumstances or the progress of the
investigation. To come to this Court directly seeking an order
of transfer is travelling along the wrong street. We are sure
that if the second petitioner is ailing, as is represented, and
this fact is brought to the notice of the Court which has
directed her appearance, just orders will be passed in case
there is veracity behind the representation. We need hardly
say courts should use their processes to the purpose of
advancing justice, not to harass parties. Anyway, so far as
the petition for transfer is concerned. there is no merit we
can see and so we dismiss it.”
16. The contrary references cited by the Petitioner where transfer
of investigation was allowed, do not in any manner, refer to a
determination on the question of competence to transfer investigation
under Section 406. In the cited cases, relief was granted without any
discussion of the law, ignoring the long standing ratio laid down in Ram
Chander Singh Sagar (Supra).
17. Having considered the contour of the power under section
406 CrPC, it must be concluded that only cases and appeals (not
investigation) can be transferred. The ratio in Ram Chander Singh Sagar
and Anr. (Supra) in my view,is clearly applicable in the present matter.
SCOPE OF SECTION 174 CRPC PROCEEDING
18. The proceeding under Section 174 CrPC is limited to the inquiry
carried out by the police to find out
the apparent cause of unnatural
death. These are not in the nature of investigation, undertaken after
filing of FIR under Section 154 CrPC. In the instant case, in Mumbai, no
FIR has been registered as yet. The Mumbai Police has neither
considered the matter under Section 175 (2) CrPC, suspecting commission
of a cognizable offence nor proceeded for registration of FIR under
Section 154 or referred the matter under Section 157 CrPC, to the nearest
magistrate having jurisdiction.
19. On the above aspect, the ratio in Manoj K Sharma vs. State
of Chhatisgarh (2016) 9 SCC 1 will bear scrutiny. This was a case of
suicide by hanging and Justice M B Lokur, speaking for the Bench held
as follows:-
RHEA CHAKRABORTY v. STATE OF BIHAR & ORS.
[HRISHIKESH ROY, J.]
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“19. The proceedings under Section 174 have a very limited
scope. The object of the proceedings is merely to ascertain
whether a person has died under suspicious circumstances
or an unnatural death and if so what is the apparent cause of
the death. The question regarding the details as to how the
deceased was assaulted or who assaulted him or under what
circumstances he was assaulted is foreign to the ambit and
scope of the proceedings under Section 174 of the Code.
Neither in practice nor in law was it necessary for the police
to mention those details in the inquest report. It is, therefore,
not necessary to enter all the details of the overt acts in the
inquest report. The procedure under Section 174 is for the
purpose of discovering the cause of death, and the evidence
taken was very short……
20. …… Sections 174 and 175 of the Code afford a complete
Code in itself for the purpose of “inquiries” in cases of
accidental or suspicious deaths and are entirely distinct from
the “investigation” under Section 157 of the Code…..
****
  ****   ****   ****     ****
22. In view of the above, we are of the opinion that the
investigation on an inquiry under Section 174 of the Code is
distinct from the investigation as contemplated under Section
154 of the Code relating to commission of a cognizable
offence…..”
20. In the present case, the Mumbai Police has attempted to stretch
the purview of Section 174 without drawing up any FIR
and therefore,
as it appears, no investigation pursuant to commission of a cognizable
offence is being carried out by the Mumbai police. They are yet to register
a FIR. Nor they have made a suitable determination, in terms of Section
175(2) CrPC. Therefore, it is pre-emptive and premature to hold that a
parallel investigation is being carried out by the Mumbai Police. In case
of a future possibility of cognizance being taken by two courts in different
jurisdictions, the issue could be resolved under Section 186 CrPC and
other applicable laws. No opinion is therefore expressed on a future
contingency and the issue is left open to be decided, if needed, in
accordance with law.
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21. Following the above, it is declared that the inquiry conducted
under Section 174 CrPC by the Mumbai police is limited for a definite
purpose but is not an investigation of a crime under Section 157 of the
CrPC.
JURISDICTION OF PATNA POLICE TO REGISTER
COMPLAINT
22. The Respondent no 2 in his Complaint alleged commission of
a cognizable offence and therefore, it was incumbent for the police to
register the FIR and commence the investigation. According to the
Complainant, his attempt from Patna to talk to his son on telephone was
thwarted by the accused persons and the possibility of saving the life of
his son through father son engagement,was missed out. In consequence,
the Complainant lost his only son who at the appropriate time, as the
learned counsel has vividly submitted,was expected to light the funeral
pyre of the father.
23. Registration of FIR is mandated when information on
cognizable offence is received by the police. Precedents suggest that at
the stage of investigation, it cannot be said that the concerned police
station does not have territorial jurisdiction to investigate the case. On
this aspect the ratio in Lalita Kumari Vs. Govt. of UP (2014) 2 SCC 1
is relevant where on behalf of the Constitution Bench, Chief Justice P
Sathasivam, pronounced as under:-
“120.1. The registration of FIR is mandatory under Section
154 of the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is permissible
in
such a situation.
120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry,
a preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not.”
24. The interpretation of Sections 177 and 178 of the CrPC would
be relevant on the issue. In Satvinder Kaur Vs. State (Govt of NCT of
Delhi) (1999) 8 SCC 728 for the Division Bench, Justice M B Shah
wrote as under:-
“12. A reading of the aforesaid sections would make it clear
that Section 177 provides for “ordinary” place of enquiry or
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trial. Section 178, inter alia, provides for place of enquiry or
trial when it is uncertain in which of several local areas an
offence was committed or where the offence was committed
partly in one local area and partly in another and where it
consisted of several acts done in different local areas, it could
be enquired into or tried by a court having jurisdiction over
any of such local areas. Hence, at the stage of investigation,
it cannot be held that the SHO does not have territorial
jurisdiction to investigate the crime.”
25. Likewise, Justice Arijit Pasayat, in Y Abraham Ajith vs.
Inspector of Police, Chennai & Anr. (2004) 8 SCC 100, writing for
the Division Bench pronounced as follows:-
“12. The crucial question is whether any part of the cause of
action arose within the jurisdiction of the court concerned.
In terms of Section 177 of the Code, it is the place where the
offence was committed. In essence it is the cause of action
for initiation of the proceedings against the accused.
13. While in civil cases, normally the expression “cause of
action” is used, in criminal cases as stated in Section 177 of
the Code, reference is to the local jurisdiction where the
offence is committed. These variations in etymological
expression do not really make the position different. The
expression “cause of action” is, therefore, not a stranger to
criminal cases.
14. It is settled law that cause of action consists of a bundle
of facts, which give cause to enforce the legal inquiry for
redress in a court of law. In other words, it is a bundle of
facts, which taken with the law applicable to them, gives the
allegedly affected party a right to claim relief against the
opponent. It must include some act done by the latter since in
the absence of such an act no cause of action would possibly
accrue or would arise.”
26. When allegation of Criminal Breach of Trust and
Misappropriation is made, on the jurisdictional aspect, this Court in Asit
Bhattacharjee Vs. Hanuman Prasad Ojha (2007) 5 SCC 786, in the
judgment written by Justice S B Sinha,observed as under:-
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“21. Section 181 provides for place of trial in case of certain
offences. Sub-section (4) of Section 181 was introduced in
the Code of Criminal Procedure in 1973 as there existed
conflict in the decisions of various High Courts as regards
commission of offence of criminal misappropriation and
criminal breach of trust and with that end in view, it was
provided that such an offence may be inquired into or tried
by the court within whose jurisdiction the accused was bound
by law or by contract to render accounts or return the
entrusted property, but failed to discharge that obligation.
22. The provisions referred to hereinbefore clearly suggest
that even if a part of cause of action has arisen, the police
station concerned situate within the jurisdiction of the
Magistrate empowered to take cognizance under Section
190(1) of the Code of Criminal Procedure will have the
jurisdiction to make investigation.”
27. In the later judgment of Naresh Kavarchand Khatri Vs. State
of Gujarat (2008) 8 SCC 300, this Court reiterated the ratio in
Satvinder Kaur (supra) and Asit Bhattacharjee (Supra).
28. Once again, in Rasiklala Dalpatram Thakkar Vs. State of
Gujarat (2010) 1 SCC 1, while approving the earlier decisions in
Satvinder Kaur (supra) in the judgment rendered by Justice Altamas
Kabir as he was then, the Supreme Court made it very clear that a
police officer cannot refrain from investigating a matter on territorial
ground and the issue can be decided after
conclusion of the investigation.
It was thus held:-
“27. In our view, both the trial court as well as the Bombay
High Court had correctly interpreted the provisions of Section
156 CrPC to hold that it was not within the jurisdiction of the
investigating agency to refrain itself from holding a proper
and complete investigation merely upon arriving at a
conclusion that the offences had been committed beyond its
territorial jurisdiction.”
29. Moreover, the allegation relating to criminal breach of trust
and misappropriation of money which were to be eventually accounted
for in Patna (where the Complainant resides), could prima facie indicate
the lawful jurisdiction of the Patna police. This aspect was dealt succinctly
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by Justice J S Khehar, as a member of the Division Bench in Lee Kun
Hee, President, Samsung Corporation, South Korea and Others Vs.
State of Uttar Pradesh and Ors.(2012) 3 SCC 132 and it was held as
under:-
“38 ******
181.Place of trial in case of certain offences.—(1)-(3)***
(4) Any offence of criminal misappropriation or of criminal breach
of trust may be inquired into or tried by a court within whose local
jurisdiction the offence was committed or any part of the property
which is the subject of the offence was received or retained, or
was required to be returned or accounted for, by the accused
person.”
A perusal of the aforesaid provision leaves no room for any doubt,
that in offences of the nature as are subject-matter of consideration
in the present controversy, the court within whose local jurisdiction,
the whole or a part of the consideration “… were required to be
returned or accounted for.…” would have jurisdiction in the
matter.”
30. Having regard to the law enunciated by this Court as noted
above, it must be held that the Patna police committed no illegality in
registering the Complaint. Looking at the nature of the allegations in the
Complaint which also relate to misappropriation and breach of trust, the
exercise of jurisdiction by the Bihar Police appears to be in order. At the
stage of investigation, they were not required to transfer the FIR to
Mumbai police.For the same reason, the Bihar government
was
competent to give consent for entrustment of investigation to the CBI
and as such the ongoing investigation by the CBI is held to be lawful.
OPTIONS BEFORE MUMBAI POLICE
31. The Patna police although found to be competent to investigate
the allegation in the Complaint, the FIR suggests that most of the
transactions/incidents alleged in the Complaint occurred within the
territorial jurisdiction of the State of Maharashtra. The Mumbai Police
was inquiring into the unnatural death of the complainant’s son under
section 174 of the CrPC. So far, their inquiry has not resulted in any FIR
suggesting commencement of investigation on the criminal aspects, if
any. However, the incidents referred to in the Complaint does indicate
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that the Mumbai police also possess the jurisdiction to undertake
investigation on those circumstances. Therefore, in the event of a case
being registered also at Mumbai, the consent for the investigation by the
CBI under Section 6 of the DSPE Act can be competently given by
Maharashtra Government.
INVESTIGATION ENTRUSTMENT TO CBI
32. While the CBI cannot conduct any investigation without the
consent of the concerned state as mandated under section 6, the powers
of the Constitutional Courts are not fettered by the statutory restriction
of the DSPE Act. For this proposition, one can usefully refer to State of
West Bengal Vs. Sampat Lal (1985) 1 SCC 317 where Justice
Ranganath Mishra in his judgment for the 3 judges Bench,held that:-
“13. ……….It is certainly not for this Court at the present
stage to examine and come to a conclusion as to whether this
was a case of suicide or murder. If as a result of investigation,
evidence is gathered and a trial takes place the Sessions Judge
will decide that controversy and it may be that in due course
such controversy may be canvassed before this Court in some
form or the other. It would, therefore, be wholly inappropriate
at this stage to enter into such a question.…………In our
considered opinion, Section 6 of the Act does not apply when
the Court gives a direction to the CBI to conduct an
investigation and counsel for the parties rightly did not dispute
this position……………”
33. Similarly, the Constitution Bench in the
judgment authored by
Justice D K Jain in State of W B Vs. Committee for Protection of
Democratic Rights (2010) 3 SCC 571 pronounced as follows:-
“68. Thus, having examined the rival contentions in the context
of the constitutional scheme, we conclude as follows:
(v) Restriction on Parliament by the Constitution and restriction
on the executive by Parliament under an enactment, do not
amount to restriction on the power of the Judiciary under
Articles 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of the Seventh Schedule on
the one hand and Entry 2-A and Entry 80 of List I on the
other, an investigation by another agency is permissible
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subject to grant of consent by the State concerned, there is
no reason as to why, in an exceptional situation, the Court
would be precluded from exercising the same power which
the Union could exercise in terms of the provisions of the
statute. In our opinion, exercise of such power by the
constitutional courts would not violate the doctrine of
separation of powers. In fact, if in such a situation the Court
fails to grant relief, it would be failing in its constitutional
duty.
(vii) When the Special Police Act itself provides that subject
to the consent by the State, CBI can take up investigation in
relation to the crime which was otherwise within the
jurisdiction of the State police, the Court can also exercise its
constitutional power of judicial review and direct CBI to take
up the investigation within the jurisdiction of the State. The
power of the High Court under Article 226 of the Constitution
cannot be taken away, curtailed or diluted by Section 6 of
the Special Police Act. Irrespective of there being any statutory
provision acting as a restriction on the powers of the Courts,
the restriction imposed by Section 6 of the Special Police Act
on the powers of the Union, cannot be read as restriction on
the powers of the constitutional courts. Therefore, exercise
of power of judicial review by the High Court, in our opinion,
would not amount to infringement of either the doctrine of
separation of power or the
federal structure.”
34. As noted earlier, the FIR at Patna was subsequently transferred
to the CBI with consent of the Bihar government during pendency of
this Transfer Petition. However, in future, if commission of cognizable
offence under section 175(2) CrPC is determined, the possibility of parallel
investigation by the Mumbai Police cannot be ruled out. Section 6 of the
DSPE Act, 1946 read with Section 5 prescribe the requirement of consent
from the State government, before entrustment of investigation to the
CBI. As the CBI has already registered a case and commenced
investigation at the instance of the Bihar government, uncertainty and
confusion must be avoided in the event of Mumbai Police also deciding
to simultaneously investigate the cognizable offence, based on their finding
in the inquiry proceeding. Therefore, it would be appropriate to decide at
this stage itself as to who should conduct the investigation on all the
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attending circumstances relating to the death of the actor Sushant Singh
Rajput.This issue becomes relevant only if another FIR is registered on
the same issue, at Mumbai. A decision by this Court on the point would
confer legitimacy to the investigation.
DIRECTION ON INVESTIGATION
35. The conflict between the two State governments on, who
amongst the two is competent to investigate the case, is apparent here.
In K.V. Rajendran Vs. Superintendent of Police, CBCID, Chennai
& Ors. (2013) 12 SCC 480, the 3 judges Bench in the judgment authored
by Justice Dr B S Chauhan held that transfer of investigation must be in
rare and exceptional cases in order to do complete justice between the
parties and to instil straight confidence in the public mind. While the
steps taken by the Mumbai police in the limited inquiry under Section
174 CrPC may not be faulted on the material available before this Court,
considering the apprehension voiced by the stakeholders of unfair
investigation, this Court must strive to ensure that search for the truth is
undertaken by an independent agency, not controlled by either of the
two state governments. Most importantly, the credibility of the
investigation and the investigating authority, must be protected.
36. The ongoing investigation by the CBI is held to be lawful. In
the event a new case is registered at Mumbai on the same issue, in the
fitness of things, it would be appropriate if the latter case too gets
investigated by the
same agency, on the strength of this Court’s order.
Such enabling order will make it possible for the CBI to investigate the
new case, avoiding the rigors of Section 6 of the DSPE Act, requiring
consent from the State of Maharashtra.
37. In Monica Kumar (Dr.) and Anr. Vs. State of Uttar Pradesh
and Others (2008) 8 SCC 781, Justice L.S. Panta in his judgment,
referred to the inherent power conferred on this Court and stated the
following:-
“45. Under Article 142 of the Constitution this Court in
exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any “cause”
or “matter” pending before it. The expression “cause” or
“matter” would include any proceeding pending in court and
it would cover almost every kind of proceeding in court
including civil or criminal. ………………………..This Court’s
RHEA CHAKRABORTY v. STATE OF BIHAR & ORS.
[HRISHIKESH ROY, J.]
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power under Article 142(1) to do “complete justice” is entirely
of different level and of a different quality. What would be
the need of “complete justice” in a cause or matter would
depend upon the facts and circumstances of each case and
while exercising that power the Court would take into
consideration the express provisions of a substantive statute.
Any prohibition or restriction contained in ordinary laws
cannot act as a limitation on the constitutional power of this
Court. Once this Court has seisin of a cause or matter before
it, it has power to issue any order or direction to do “complete
justice” in the matter.”
38. The above ratio makes it amply clear that the Supreme Court
in a deserving case, can invoke Article 142 powers to render justice.
The peculiar circumstances in this case require that complete justice is
done in this matter. How this is to be achieved must now be decided.
39. As noted earlier, as because both states are making acrimonious
allegations of political interference against each other, the legitimacy of
the investigation has come under a cloud. Accusing fingers are being
pointed and people have taken the liberty to put out their own conjectures
and theories. Such comments,responsible or otherwise, have led to
speculative public discourse which have hogged media limelight. These
developments unfortunately have the propensity to delay and misdirect
the investigation. In such situation,
there is reasonable apprehension of
truth being a casualty and justice becoming a victim.
40. The actor Sushant Singh Rajput was a talented actor in the
Mumbai film world and died well before his full potential could be realised.
His family, friends and admirers are keenly waiting the outcome of the
investigation so that all the speculations floating around can be put to
rest. Therefore a fair, competent and impartial investigation is the need
of the hour. The expected outcome then would be, a measure of justice
for the Complainant, who lost his only son. For the petitioner too, it will
be the desired justice as she herself called for a CBI investigation. The
dissemination of the real facts through unbiased investigation would
certainly result in justice for the innocents, who might be the target of
vilification campaign. Equally importantly, when integrity and credibility
of the investigation is discernible, the trust, faith and confidence of the
common man in the judicial process will resonate. When truth meets
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sunshine, justice will not prevail on the living alone but after Life’s fitful
fever, now the departed will also sleep well. Satyameva Jayate.
41. In such backdrop, to ensure public confidence in the
investigation and to do complete justice in the matter, this Court considers
it appropriate to invoke the powers conferred by Article 142 of the
Constitution. As a Court exercising lawful jurisdiction for the assigned
roster, no impediment is seen for exercise of plenary power in the present
matter. Therefore while according approval for the ongoing CBI
investigation, if any other case is registered on the death of the actor
Sushant Singh Rajput and the surrounding circumstances of his unnatural
death, the CBI is directed to investigate the new case as well.It is ordered
accordingly.
42. Before parting, it is made clear that the conclusion and
observations in this order is only for disposal of this petition and should
have no bearing for any other purpose.
43. The Transfer Petition is disposed of with the above order.
Ankit Gyan
Transfer Petition disposed of.
RHEA CHAKRABORTY v. STATE OF BIHAR & ORS.
[HRISHIKESH ROY, J.]