Family courts cannot try Muslim maintenance cases: Bombay HC

MUMBAI, JULY 12. A full bench of the Bombay High Court has held that family courts have no jurisdiction to try maintenance cases of divorced Muslim women, and interpreted the Muslim (Protection and Divorce) Act to include payment of maintenance even beyond the stipulated `Idaat' period to take care of their life-time needs.

The verdict was delivered on Tuesday by Mr. Justice Ajit Shah, Mr. Justice J.A. Patil and Ms. Justice Ranjana Desai who disposed of the petition raising a question whether a Muslim woman could seek maintenance beyond the Idaat period.

The Full Bench laid down that maintenance petitions by the Muslim women be entertained only by a first class judicial magistrate.

The verdict is considered significant in legal circles because of a conflicting judgment of the Bombay High Court on the jurisdiction of family courts to hear the maintenance cases. Experts also claim that this verdict would have the same effect of the one in the Shah Bano case delivered by the Supreme Court some years ago.

The Full Bench also ruled that all pending cases under Section 125 of Cr.P.C. (Maintenance) filed by divorced women hereafter be treated as applications filed under the Muslim Women Act, 1986, and be disposed of by the magistrate in accordance with the provisions of this Act.

All such applications pending in family courts would automatically be transferred to the courts of first class judicial magistrates. Any interim order passed by the family courts would continue to operate until the cases were finally disposed of by the magistrates. Section 3 of the Act lays down that the liability of a husband to pay maintenance would be confined to three months of the divorce (Idaat period). But this should take care of her life-time needs, the Full Bench opined.

Interpreting Section 3, which provides for maintenance for the Idaat period, the Full Bench ruled that such amount could be paid in lumpsum or installments depending upon the husband's income and needs of the divorced wife.

However, if the husband was unable to pay a lumpsum amount, he might be allowed to pay in monthly installments even beyond the Idaat period. In other words, the husband had to make a reasonable and fair provision for maintenance.

The Full Bench clarified that before the Act came into force, orders passed by various courts for maintenance under Section 125 of Cr.P.C. would be binding on both sides.

The judges noted that the rights of divorced Muslim women which prevailed before the enactment of the Act would be protected and untouched. Earlier orders could not be nullified because the new Act did not have retrospective effect.

The Full Bench ruled that henceforth Muslim divorced women could not apply under Section 125 of Cr.P.C. for maintenance but could do so only under the new Act.

The petition, filed by Karim Abdul Shaikh against his wife Shenaz, was referred to the Full Bench in view of conflicting judgments on the jurisdiction of family courts.