Thursday, February 13, 2014 - 06:00 IST | Place: Mumbai | Agency: DNA
Does the Family Court have the jurisdiction to entertain a Muslim woman's maintenance application under the Criminal Procedure Code after a talaqnama (document certifying talaq i.e. divorce) is executed under the Muslim personal law?
The Bombay high court will decide on the issue following a petition filed by husband who had questioned the jurisdiction of Family Court after the wife accepted talaq and acted upon it.
The husband had approached the HC after the Family Court rejected his application in November 2012 questioning its (family Court's) jurisdiction.
The HC has stayed the proceedings pending before the Family Court.
TF Irani, advocate for the wife, was present in the court and said that they will file their reply.
The couple had married on February 22, 2003 and have two children. After there were issues in the marriage, the women left the matrimonial home in November 2011. In January 2012, she visited matrimonial home once and left with two minor children without any notice.
Subsequently she filed different litigations before the metropolitan court at Bandra and at Family court alleging Domestic Violence and cruelty.
She also filed applications before the magistrate under the Domestic Violence Act and Family Court under Criminal Procedure Code seeking maintenance.
Pending the litigations, the husband dissolved his marriage by talaq following the Muslim personal law on September 9, 2012. "The talaq was pronounced three times before two witnesses which resulted in termination of their marriage as per the Muslim personal law," said Vivek Kantawala, husband's advocate.
"After the pronouncement of the talaq and as per Sunni Muslim Shariat Law a Talaqnama came to be executed by the husband in the presence of witnesses wherein the mention of the amount of Meher (money given by husband to wife at the time of talaq) and the amount for the purposes of Iddat (waiting period before either of the parties can re-marry) was also drawn up," reads his petition.
However, the wife returned the cheque.
The petition states that in view of the Muslim personal law and Muslim Women (Protection of Rights on Divorce) Act, 1986, her rights cease as a wife. Resultantly, he rights also cease under Section 125 of the Criminal Procedure Code, 1973 for claiming maintenance.
If she wants, she can raise issues under the Muslim Women (Protection of Rights on Divorce) Act, 1986, said Kantawala.
When the husband questioned Family Court's jurisdiction, the wife claimed before the lower court that she had returned the cheques and she even denied the talaq.
Challenging the Family Court's order, the petition says that the trial court grossly erred to notice the fact that both the parties are governed under their personal law and the personal law has credence over the matter in issue which was to be adjudicated by the Trial Court.
The family court even questioned the talaqnama and said that it would examine its authenticity at a later stage.
http://www.dnaindia.com/mumbai/report-does-family-court-have-jurisdiction-to-entertain-a-muslim-woman-s-maintenance-application-under-criminal-procedure-hc-to-decide-1961584
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