Judgment:
A. Pasayat, J.
1. Appellant questions jurisdiction of the Family Court set up under the Family Courts Act, 1984 (hereinafter called 'the Act') to deal with an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short, the 'Divorce Act'). Undisputed position is that the respondent had file an application under Section 3 of the Divorce Act claiming maintenance from appellant for dower due, reasonable provisions for maintenance as part of dower due return of gifts and other connected reliefs. In that view of the matter, we need not go into the factual aspects in detail. Foundation of appellant's challenge to legality of the proceeding before the Family Court is that Divorce Act being a special statute providing jurisdiction to a Judicial Magistrate of First Class to deal with an application under Section 4 of the said Act. Family Courts Act does not operate and the Court set up under that Act has no jurisdiction to entertain the application.
2. Section 7 of the Act is the pivotal provision for determination of controversy. The same reads as follows :
'7. Jurisdiction--(1) Subject to other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends;
Explanation--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely :
(a) a suit or 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 in 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 marital relationship :
(e) a suit or proceeding for a declaration as to the legitimacy of any person ;
(f) a suit or proceeding for maintenance ;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to any minor ;
(2) Subject to the other provisions of this Act, a family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children or parents) of the Code of Criminal Procedure. 1973 (2 of 1974) ;
(b) such other jurisdiction as may be conferred on it by any other enactment.'
3. Section 7(1)(a) provides that the Family Court shall have and exercise all the jurisdiction exercisable by any district Court or subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. Section 7 consists of two parts. The first relates to civil jurisdiction and the other relates to criminal jurisdiction. The latter is limited in its operation to Chapter IX of Code of Criminal Procedure, 1973 (in short the 'Code'). Section 7(1)(a) confers the entire jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in Clauses (a) to (g) of the Explanation. By operation of a deeming provision in Clause (b) of Sub-section (1) of Section 7, the Family Court is deemed to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends, for the purpose of exercising such jurisdiction under such law as referred to in Clause (a) of Sub-section (2) provides that Family Court shall have and exercise jurisdiction exercisable by a Judicial Magistrate, First Class in regard to Chapter IX of the Cede. An application under Section 3 of the Divorce Act cannot be said to be covered by Section 7 as Sub-section (1) of the said provision has application only when a suit or proceeding is of the nature envisaged in Clauses (a) to (g) of the Explanation, and the matter was adjudicable by the District Court or any subordinate Civil Court. An application under Section 3 of the Divorce Act is neither a suit nor a proceeding, nor is a matter ad judicable by the Civil Court.
4. It is urged by learned counsel for the respondent that the expression 'proceeding' is wide enough to engulf an application under Section 3. Though the submission is attractive, it is clearly unacceptable, because the context in which the word 'proceeding' has been used in juxtaposition to the word 'suit', indicates that the proceeding also has to be one akin in a suit, or related to a suit. It cannot extend to a proceeding of a criminal nature. Similarly no application under Section 3 lies to the District Court or subordinate Civil Court. The expression 'District Court or subordinate Civil Court' clearly indicates that legislature wanted that the disputes of civil nature are encompassed by Sub-section (1) of Section 7. So far as Section 7, Sub-section (2) is concerned, it has to be noticed that Clauses (a) and (b) of Sub-section (2) deal with two different aspects. The first deals with the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Code, while the latter deals with such other enactment.
5. It is submitted by learned counsel for the respondent that the jurisdiction can be deemed to have been conferred by Section 3 of the Divorce Act. The plea is unsound. The expression 'conferred on it' used in Clause (b) of Section 2 of the Act has to be read along with the expression 'by any other enactment'. The jurisdiction has to be specifically conferred and cannot be deemed to have been conferred. There is no provision in the Divorce Act to lend support to such a plea. On the other hand, the Divorce Act enacted subsequent to the Act by Sub-section (2) of Section 3 provides for an application to be made to a Magistrate. Jurisdiction has been conferred on the Magistrate under Sub-section (2) of Section 7 of the Act to deal with applications for maintenance as provided in Chapter IX of the Code. As indicated above Clause (f) of Sub-section (1) of Section 7 deals with suits or proceedings for maintenance. Had it been legislative Intent to provide for jurisdiction to deal with application for maintenance similar to those covered under Chapter IX of the Code, Sub-section 2 (a) of Section 7 of the Act would not have limited it to matters falling under Chapter IX of the Code. This is an additional ground to hold that the Family Court has no jurisdiction to deal with applications filed under Section 3 of the Divorce Act. Accordingly, we hold that the proceeding before the Family Court was without jurisdiction and it had no jurisdiction to deal with the matter. The impugned order passed in the proceeding is without jurisdiction. The matter shall be dealt with by the learned SDJM, Panposh before whom the application was originally made.
6. There has been long passage of time, since the original application was filed, and since the application relates to grant of maintenance. It would be in the interest of all concerned, if the case is disposed of as early as possible. The learned Magistrate would do well to make an effort to dispose of the application as early as possible, preferably by the end of November, 1995.
7. Appeal is allowed to the extent indicated.
The LCR be sent back immediately.
P. Ray, J.
8. I agree with the views expressed by my learned brother, but I like to add a few words of my own explaining why the proceeding under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the 'Divorce Act') is not entertainable by a Family Court set up under the Family Courts Act, 1834 (hereinafter referred to as the 'Act of 1984').
9. Jurisdiction of the Family Court has been prescribed by Section 7 of the Act of 1984 which has been reproduced in the judgment of my learned brother. Section 7 has got two parts. First part (Section 7(1)) deals with 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 as enumerated in Clauses (a) to (g) of the Explanation. The second part confers on a Family Court the jurisdiction exercisable by a Magistrate of the First Class as specified in Clause (a) of Sub-section (2) of Section 7 and provides for conferment of any other jurisdiction by any other enactment. Inclusion of a separate sub-section dealing with the jurisdiction exercisable by a Magistrate of the First Class necessarily excludes jurisdiction exercisable by a Magistrate of the 1st Class from the purview of Sub-section (1) of Section 7. Thus, although a proceeding under Section 3 of the Divorce Act is a proceeding for maintenance, the said jurisdiction being exercisable by a Magistrate of the First Class does not come under the purview of Clause (f) of the Explanation to Sub-section (1) of Section 7 of the Act, 1984.
10. The proceeding under Section 3 of the Divorce Act is not a proceeding under the Code of Criminal Procedure, in particular under Chapter IX of the Code of Criminal Procedure. Thus, it also does not come within the scope of Section 7(2)(a) of the Act, 1984. Section 5 of the Divorce Act makes it abundantly clear that the proceeding under Section 3 of the Divorce Act is not a proceeding under Chapter IX of the Code of Criminal Procedure.
11. As the jurisdiction under Section 3 of the Divorce Act has been made exercisable by a Magistrate of the First Class, it cannot come under Sub-section (1) of Section 7 of the Act of 1984 irrespective of the nature of the said proceeding. Even if the proceeding under Section 3 of the Divorce Act is construed to be a special proceeding as distinguished from a criminal proceeding under the Criminal Procedure Code, it cannot come under Sub-section (1) of Section 7 of the Act of 1984 because the jurisdiction is exercisable by a Magistrate of the First Class.
12. Section 7(2)(a) has a very limited scope. It is confined to the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Cr PC. Section 7(2)(b) has permitted any other enactment to confer a jurisdiction on the Family Court. The Divorce Act is 'any other enactment' within the meaning of Section 7(2)(b), but the Divorce Act has not conferred upon the Family Court the jurisdiction to decide an application under Section 3 of the Divorce Act.
13. It is worth-while to mention that my learned brother has already decided the point in an earlier decision reported in 77 (1994). CLT 1049 (Sk. Allauddin v. Shamima Akhtari and Anr.) and I fully concur with the said decision.