ALLAUDDIN Vs. SHAMIMA AKHTARI

JUDGEMENT

(1.) The petitioner questions jurisdiction of the Family Court set up under the Family Courts Act, 1984 (in short, 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').

(2.) Background facts giving rise to the application before this Court are as follows : An application was filed by Shamima Akhtari (opposite party No. 1 in this application) under Section 3 of the Divorce Act claiming maintenance from petitioner for dower due, reasonable provisions for maintenance as part of dower due, return of gifts and for maintenance of a child born to them for the period between date of complaint, i.e., 28-12-1990 and July, 1991, the expected date of delivery of the baby. It was alleged in the petition that on 28-12-1990 the petitioner divorced opp. party No. 1 in the presence of Choukidar of the locality, who informed opp. party No. 1 regarding the said divorce. Due to such irrevocable divorce opp. party No. 1 was no more wife of the petitioner. Since the dower, articles given and maintenance during the period of iddat after the period of divorce was not paid, the application was filed in the court of subdivisional Judicial Magistrate, Panposh (in short, 'SDJM') which was subsequently transferred to the court of Judge, Family Court Rourkela. The petitioner appeared before the latter court, filed his show-cause and while admitting the divorce inter alia refuted the other allegations. The maintainability of the proceeding before Family Court was challenged. However, subsequently the petitioner did not appear in the proceeding, and the learned Judge decided the matter ex parte and directed payment of Rs. 500.00 as cost of litigation, Rs. 2500.00 per month for the period of Iddat from 28-12-1990, and maintenance to the child at the rate of Rs. 150.00 per month for a period of two years with effect from the date of divorce, i.e., 28-12-1990, and also payment of maintenance for a period of two years to the said child with effect from 9-7-1991. Since the petitioner did not pay, non-bailable warrant of arrest was issued by the learned Judge, Family Court.

(3.) The petitioner assails legality of the proceeding before the Family Court on the ground that the Divorce Act being a special statute providing jurisdiction to a Judicial Magistrate of the first class, the Family Courts Act has no application, and it has no jurisdiction to entertain the application under Section 3 of the Divorce Act.