RANA NAHID @ RESHMA @ SANA & Anr. v. SAHIDUL HAQ CHISTI

Judgment

(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. 324 RANA NAHID @ RESHMA @ SANA & ANR. v. SAHIDUL HAQ CHISTI 325 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 A B C D E F G H 326 SUPREME COURT REPORTS [2020] 7 S.C.R. 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 A B C D E F G H RANA NAHID @ RESHMA @ SANA & ANR. v. SAHIDUL HAQ CHISTI 327 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 A B C D E F G H 328 SUPREME COURT REPORTS [2020] 7 S.C.R. 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 A B C D E F G H RANA NAHID @ RESHMA @ SANA & ANR. v. SAHIDUL HAQ CHISTI 329 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 A B C D E F G H 330 SUPREME COURT REPORTS [2020] 7 S.C.R. A 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. B C D E F G H RANA NAHID @ RESHMA @ SANA & ANR. v. SAHIDUL HAQ CHISTI 331

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 B C D E F G H [2020] 7 S.C.R. 369 369 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 369 A B C D E F G H 370 SUPREME COURT REPORTS [2020] 7 S.C.R. A B C D E 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 F

#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] G H RHEA CHAKRABORTY v. STATE OF BIHAR & ORS. 371

#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 A B C D E F G H 372 SUPREME COURT REPORTS [2020] 7 S.C.R. 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, A B C D E F G H RHEA CHAKRABORTY v. STATE OF BIHAR & ORS. 373 Samsung Corporation, South Korea and Others v. State of Uttar Pradesh and Ors. (2012) 3 SCC 132 : [2012] 4 SCR 287 – relied on.