MOHD ARIF Vs. KHERUNISHA & ANR

JUDGEMENT

(1.) Petitioner, Mohd. Arif, has laid this writ petition assailing the order dated 25th March, 2014 (Annex.5) passed by the Judge, Family Court, Bikaner. The learned Family Court by the impugned order has turned down the prayer of the petitioner that the application preferred by the respondent-divorced wife under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, 'the Act of 1986') is not maintainable before the Family Court.

(2.) Learned counsel for the petitioner, Mr. B.C. Bhansali, has strenuously urged that Section 3 of the Act of 1986 postulates with clarity and precision that for entertaining such request of divorced wife, application can be laid before the competent magistrate and the Act of 1986 being special Act cannot be whittle down so as to confer jurisdiction on the Family Court under the Family Courts Act, 1984 (for short, 'the Act of 1984'). With these submissions, the learned counsel has argued that the order impugned cannot be sustained. In support of his contentions, Mr. Bhansali has placed reliance on a decision of this Court in the case of Shahidul Haq Chisti V/s. Smt. Rana Nahihd @ Reshma @ Sana & Anr., 2011 1 WLC(Raj) 52.

(3.) E. Converso, Mr. Goyal appearing for the respondent No.1 has submitted that by virtue of Section 7 of the Act of 1984, Family Court is having jurisdiction to decide a suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them. Mr. Goyal has urged that the jurisdiction of the Family Court is wide covering all the disputes falling within the four corners of family disputes as well as matrimonial disputes. Mr. Goyal has also invited attention of this Court towards clause (a) of sub-section (2) of Section 7 of the Act of 1984, which empowers a Family Court to exercise the powers of first class magistrate. Mr. Goyal has also relied upon a decision of Hon'ble Apex Court in the case of K.K. Abdul Jaleel V/s. T.A. Shahida,2003 2 WLC(Raj) 316. In this verdict, while examining the scope of Explanation (c) of Section 7 of the Act of 1984 vis- -vis a property dispute of a divorced Muslim lady under Section 3 of the Act of 1986, the Hon'ble Apex Court has held as under :-