RANA NAHID @ RESHMA @ SANA & ANR. versus SAHIDUL HAQ CHISTI on 18 June 2020

[2020] 7 S.C.R.

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RANA NAHID @ RESHMA @ SANA & ANR.

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SAHIDUL HAQ CHISTI

(Criminal Appeal No. 192 of 2011)

JUNE 18, 2020

B[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973 – Chapter IX- ss.125-128– Petition u/s.125, by divorced Muslim woman – Converted toapplication u/s.3, 1986 Act by Family Court – Permissibility of –Appellant no.1 and respondent were married as per Muslim rites –CAppellant no.2-son was born out of the wedlock – Alleging crueltyagainst appellant no.1, appellants filed petition u/s.125, CrPC –Family Court treated it as application u/s.3, 1986 Act and directedrespondent to pay maintenance – Order to the extent converting thepetition u/s.125, CrPC into application u/s.3 of the 1986 Act, setDaside by High Court – On appeal, held: Per R. Banumathi, J. FamilyCourt has no jurisdiction to entertain a petition u/ss.3 and 4, 1986Act and cannot convert the petition for maintenance u/s.125, Cr.P.C.to one u/s.3 or s.4, 1986 Act – Per Indira Banerjee, J. (Dissenting)Family Court had jurisdiction to convert the application of appellantu/s.125, CrPC into an application u/s.3, 1986 Act for Muslim WomenEand to decide the same –Muslim Women (Protection of Rights onDivorce) 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; CasusOmissus – Code of Civil Procedure, 1908 – Evidence Act, 1872 –FInternational Convention / Treaties – International Covenant forCivil and Political Rights (ICCPR); Convention on the Eliminationof All Forms of Discrimination against Women 1979.

Directing the matter to be placed before Hon’ble the ChiefJustice of India for referring the matter to the Larger Bench, theCourtG

Referring the matter to larger Bench, the CourtHELD: PER R. BANUMATHI, J.

1.1 Muslim Women (Protection of Rights on Divorce) Act,1986 does not deviate itself from the purpose, object and scopeof the provisions of maintenance under Criminal Procedure Code.H

The provisions of the Act are not inconsistent with the provisionsof Chapter IX of the Code. The provision of this enactmentprovides remedies beneficial to the Muslim women divorcee bymaking the former husband liable to provide the divorced womanwith reasonable and fair provision in addition to providingmaintenance and where the husband fails to comply with the orderwithout sufficient cause, the Magistrate may issue warrant forlevying the amount of maintenance and may sentence him toimprisonment for a term which may extend to one year. The nearrelatives of the woman are also made liable under Section 4 ofthe Act. In case, the relatives are not in a position to pay her, theState Wakf Board is also made liable to provide maintenance.While the Criminal Procedure Code provides the relief ofmaintenance only, the Act of 1986 furnishes to divorced woman,additionally, ‘a reasonable and fair provision’, the relief ofrecovery 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 timebeing in force,” a divorced woman shall be entitled to rightsenumerated in clauses (a) to (d) of Section 3(1) of 1986 Act. MuslimWomen Protection Act may have conferred more rights but theAct confers these rights notwithstanding anything contained inSection 125 Cr.P.C. The non-obstante clause has to be understoodfairly and reasonably. The non-obstante clause cannot be lightlyassumed to bring in the effect of supersession. It should not beallowed to demolish or extinguish the existing right unless thelegislative intention is clear, manifest and unambiguous. Section5 of the Muslim Women’s Protection Act gives divorced Muslimcouples “an option to be governed by the provisions of Sections125 to 128 of the Code of Criminal Procedure, 1973” which theycould jointly exercise at the first hearing of the case under theAct. Section 5 of the Act enables the parties at the stage of firsthearing, to withdraw from the applicability of the Muslim Women’sProtection Act and be governed by the provisions of CriminalProcedure Code. Otherwise, the Magistrate has to deal with theapplication as per the provisions of the Muslim Women ProtectionAct. Section 7 of the Muslim Women Protection Act deals withTransitional Provisions. Only a Magistrate of the First Class A

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Aexercising jurisdiction under the Code can dispose of theapplication in accordance with the provisions of the MuslimWomen Protection Act. [Paras 15, 16][338-E-G][339-A-E]

Danial Latifi and Another v. Union of India (2001) 7SCC 740 : [2001] 3 Suppl. SCR 419; Shabana Bano v.BImran Khan (2010) 1 SCC 666 : [2009] 16 SCR 190 –referred to.

1.3 The Family Courts Act, 1984 was enacted in publicinterest for the establishment of Family Courts for the speedysettlement of family disputes and it came into force on 14.09.1984.CThe jurisdiction of Family Courts is provided for in Section 7 ofthe Act. The provisions of the Muslim Women’s Protection Actdo not confer any jurisdiction on the Family Court. Section 3(2)of the Muslim Women’s Protection Act provides that theapplication may be made to a Magistrate; but not to the FamilyCourt. Since the Muslim Women’s Protection Act, 1986 doesDnot refer to the Family Court or does not say that an applicationunder Sections 3 and 4 can be filed before the Family Court, theFamily Court cannot entertain the application of divorced Muslimwoman under Sections 3 and 4 of the Muslim Women’s ProtectionAct, 1986. [Paras 17, 20 and 23][339-E-F][341-F][345-B]

EKarim Abdul Rehman Shaikh v. Shehnaz Karim Shaikhand Others 2000 (3) Mh.L.J. 555 – approved.

Anjum Hasan Siddiqui v. Smt. Salma B. AIR 1992 All322 – referred to.

1.4 The application under Section 3(2) of the Act of 1986Fby the divorced wife has to be filed before the competentMagistrate having jurisdiction if she claims maintenance beyondthe iddat period. Even if the Family Court has been establishedin that area, the Family Court not having been conferred thejurisdiction under Section 7 of the Family Courts Act, 1984 toGentertain an application filed under Section 3 of the MuslimWomen Protection Act, the Family Court shall have no jurisdictionto entertain an application under Section 3(2) of the Act of 1986.The Family Court, therefore, cannot convert the petition formaintenance under Section 125 Cr.P.C. to one under Section 3

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or Section 4 of the Act of 1986. The High Court rightly held thatthe Family Court has no jurisdiction to entertain the petition underSections 3 and 4 of the Act of 1986 and that the Family Courtcannot convert the petition for maintenance under Section 125Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. Noreason is found warranting interference with the impugned order.[Paras 25, 26][345-E-H]

Iqbal Bano v. State of Uttar Pradesh & Anr. (2007) 6SCC 785 : [2007] 7 SCR 949 – distinguished.

Mohd. Ahmed Khan v. Shah Bano Begum and Others(1985) 2 SCC 556 : [1985] 3 SCR 844; Danial Latifiand 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 appliesto matters contemplated therein, irrespective of the religion ofthe litigating parties. Section 3 of the Family Courts Act providesfor establishment of Family Courts, after consultation with theHigh Court. On a reading of Section 7(1) along with explanation(f) to Section 7(1) of the Family Courts Act, it is patently clearthat the Family Court, established under Section 3 of the FamilyCourts Act, is clothed with the jurisdiction and powers exercisableby a District Court or any Subordinate Civil Court, under any lawfor the time being in force, to entertain and decide any suit orproceeding for maintenance, which would include an applicationunder 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 Actoverriding effect, over any other law, which would include the1986 Act for Muslim Women. The Family Courts Act is to haveeffect, notwithstanding anything inconsistent therewith, containedin any other law, for the time being in force, or in any instrumenthaving effect, by virtue of any law other than the Family CourtsAct. The Family Courts have jurisdiction in respect of the mattersspecified in the Explanation (f) of Section 7(1), irrespective of A

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Areligion or faith of the parties to the litigation. Wherever a FamilyCourt is constituted, such Family Court not only exercises thejurisdiction and powers of any District Court or Subordinate CivilCourt in respect of suits and other proceedings of the naturereferred to in the Explanation (f) to Section 7(1), that is, suits andother proceedings for maintenance, it also exercises theBjurisdiction and powers of a Magistrate of the First Class underChapter 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 oflegislation, specially enacted as a measure of social justice, thedominant purpose whereof is to ensure that a wife including aCdivorced wife, a child or a parent is not driven to penury andvagrancy. The Section provides a simple speedy remedy, interalia, for a wife including a divorced wife, who is neglected by herhusband/ex husband, even though he has sufficient means tomaintain her. Such a wife or divorced wife can obtain an order ofDmaintenance from a Magistrate. The 1986 Act for Muslim Womenhas been enacted to protect the rights of Muslim women whohave been divorced by, or have obtained divorce from, theirhusbands and to provide for matters connected therewith orincidental thereto. [Paras 35, 39][355-E-G][356-D-E]

EVijay Kumar Prasad v. State of Bihar (2004) 5 SCC196; 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.

F1.4 There can be no dispute that the Family Court alonehas jurisdiction in respect of personal and family matters relatingto women and men, irrespective of their religion. Family mattersof Muslim women pertaining inter alia to marriage, divorce etc.are decided by Family Courts, as also claims of Muslim wives tomaintenance under Section 125 of the Cr.P.C. There could be noGreason to single out divorced Muslim wives to deny them accessto the Family Courts, and that was never the legislative intent ofthe 1986 Act for Muslim Women. Equality before the law andequal protection of the laws envisaged in Article 14 of theConstitution of India applies as much to procedural laws as to H

substantive laws. The non-obstante Clause in Section 3(1) of the1986 Act for Muslim Women provides, in effect and substance,that a divorced Muslim woman would only be entitled tomaintenance as provided in Section 3(1) of the 1986 Act forMuslim Women, notwithstanding any other law including Section125 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 SC75 : [1952] SCR 284; D.K. Yadav v. J. M. A. IndustriesLtd. (1993) 3 SCC 259 : [1993] 3 SCR 930; LachhmanDass v. State of Punjab AIR 1963 SC 222 : [1963] 2SCR 353; Meenakshi Mills v. Vishvanatha Sastri AIR1955 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 maintenanceunder Section 125 of the Cr.P.C. from her husband after theenactment of the 1986 Act for Muslim Women. However, underSection 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 hasnot remarried. Section 5 of the 1986 Act for Muslim Womenprovides that a divorced woman and her former husband mightdecide by an affidavit or any other declaration in writing, thatthey would prefer to be governed by the provisions of Section125 to 128 of the Cr.P.C. Section 7 of the Family Courts Actexpressly confers jurisdiction to a Family Court to exercise alljurisdiction exercisable by any District Court or any SubordinateCivil Court, under any law for the time being in force, in respectinter alia of all suits and proceedings for maintenance. The FamilyCourt has also expressly been conferred with jurisdictionexercisable by a Magistrate of the First Class under Chapter IXof the Cr.P.C relating to maintenance. Under Section 7(2)(b) ofthe Family Courts Act, the Family Court may exercise such otherjurisdiction as may be conferred on it by any other enactment.The Family Courts Act, enacted long before enactment of the1986 Act for Muslim Women, obviously did not contemplate thelater legislation. There is, therefore, no specific mention of the A

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A1986 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 civillaw, which makes provisions for maintenance for divorced Muslimwomen and not a criminal statute. The 1986 Act for MuslimBwomen does not contain any penal provision for any default whichenables a divorced Muslim Woman to apply for maintenance underthe said Act. The penal provision of the 1986 Act for MuslimWomen is only to enforce compliance with an order under Section31 of the said Act. The punishment of imprisonment is only fornon-compliance with the order of maintenance. The MagistrateCreferred to in Section 3(2) and other Sections of the 1986 Act, is,for all practical purposes, to be deemed to be a Civil Courtsubordinate to the District Court. [Para 66][365-B-D]

1.7 It was never the intention of the 1986 Act for MuslimWomen to deprive divorced Muslim Women from the litigantDfriendly procedures of the Family Courts Act and denude FamilyCourts of jurisdiction to decide applications for maintenance ofdivorced Muslim women. The Family Court would havejurisdiction under Section 7 of the Family Courts Act to entertainan application under Section 3 and 4 of 1986 Act for MuslimEWomen, since the Court of Magistrate dealing with such anapplication is to be deemed to be a Civil Court subordinate tothe District Court. A literal and rigid interpretation of theexpression “Subordinate Civil Court” to single out divorcedMuslim Women seeking maintenance from their husbands, accessto Family Courts when all other women whether divorced or notFand even Muslim Women not divorced can approach FamilyCourts would be violative of Article 14 of the Constitution. TheFamily Court had the jurisdiction to convert the application ofthe Appellant under Section 125 of the Cr.P.C into an applicationunder Section 3 of the 1986 Act for Muslim Women and to decideGthe same. [Paras 68-71, 79][365-G-H][366-B-D][368-B]

Bangalore Water Supply v. A. Rajappa AIR 1978 SC548 : [1978] 3 SCR 207 – followed.

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Iqbal Bano v. State of UP and Another (2007) 6 SCC785 : [2007] 7 SCR 949; Tirath Singh v. Bachittar SinghAIR 1955 SC 830 : [1955] 2 SCR 457 – relied on.

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Modern School v. Union of India (2004) 9 SCC 741 :[2004] 3 SCR 1161 – referred to.

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Seaford Court Estates Ltd. v. Asher (1949) 2 All ER155 – referred to.

In the Judgment of R. Banumathi, J.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.192 of 2011.

From the Judgment and Order dated 28.07.2010 of the High Courtof Judicature for Rajasthan, Bench at Jaipur, Jaipur in S.B. CriminalRevision Petition No. 295 of 2009.

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ASunil Kumar Singh, Rameshwar Prasad Goyal, Puneet Jain, HarshJain, Abhinav Gupta, and Ms. Pratibha Jain, Advs. for the appearingparties.

The Judgments/Order of the Court were delivered/passed by

R. BANUMATHI, J.B

1. This appeal arises out of the judgment dated 28.07.2010 passedby the High Court of Rajasthan Bench at Jaipur in S.B. Criminal RevisionPetition No. 295 of 2009 in and by which High Court allowed the revisionpetition filed by the respondent thereby setting aside the order passed bythe Family Court which has converted the application for maintenanceCunder Section 125 Cr.P.C. into Section 3 of the Muslim Women (Protectionof Rights on Divorce) Act, 1986 and also setting aside the maintenanceamount awarded to appellant No.1.

2. Brief facts of the case which led to the filing of this appeal arethat the marriage between appellant No.1-Rana Nahid @ Reshma @DSana and respondent Sahidul Haq Chisti was solemnized on 08-03-1998as per the Muslim rites and appellant No.2-son was born out of thewedlock. Alleging that appellant No.1 was subjected to cruelty andharassment for additional dowry and that she was thrown out ofmatrimonial home, appellants filed a petition under Section 125 Cr.P.CEagainst the respondent. Thereafter, on 24-03-2008, appellant No.1amended the petition on the basis of divorce given on 23-04-2008 by therespondent-Sahidul. The appellants averred that the respondent is workingas a lecturer in Rajkiya Moiniya Senior Secondary School, Ajmer andhas been earning a sum of Rs.20,000/- per month approximately and healso serves in “Mehmani ki Dargah” from where he earns Rs.20,000/-Fper month and thus claimed a maintenance of Rs.6,000/- per monthtowards her maintenance and Rs.2,500/- per month towards maintenanceof her son-appellant No.2 herein. The respondent has admitted that he isa lecturer in Govt. Job and receives a salary of Rs.18,500/- per month.

3. The Family Court held that as the appellant No.1 is a MuslimGdivorced woman, her petition for maintenance under Section 125 Cr.P.C.is not maintainable. The Family Court treated the said application underSection 125 Cr.P.C. as application under Section 3 of the Muslim Women(Protection of Rights on Divorce) Act, 1986 (Muslim Women’s ProtectionAct) in the light of the judgment of this Court in Iqbal Bano v. State ofUttar Pradesh & Anr. (2007) 6 SCC 785. The Family Court orderedH

respondent-Sahidul Haq to pay rupees three lakh in lump sum to appellantNo.1 towards her maintenance and future livelihood. The application ofappellant No.2 claiming maintenance has been accepted under Section125 Cr.P.C. and the respondent has been ordered to pay Rs. 2,000/- permonth towards his maintenance till he attains majority.

4. Being aggrieved by the quantum of maintenance, the appellantsfiled Revision Petition No. 295 of 2009 before the High Court of Rajasthanat Jaipur for enhancement of maintenance. The respondent also filedRevision Petition No. 221 of 2009 against the order of the Family Court.While the matter was pending before the High Court, a sum of Rs.1,00,000/- was paid by the respondent to appellant No.1. The High Courtheld that the application under Section 125 Cr.P.C. was made before theFamily Court which does not have jurisdiction to entertain an applicationunder Section 3 of the Muslim Women’s Protection Act. The High Courtheld that the order of the Family Court converting the application underSection 125 Cr.P.C. into an application under Section 3 of the Act iswithout jurisdiction and on those findings, set aside the order of the FamilyCourt to that extent and allowed the revision preferred by the respondent.However, liberty was given to appellant No.1 to file an application underSection 3 of the Act of 1986 before the Court of competent Magistrate.So far as the amount of rupees one lakh already paid to appellant No.1,she was allowed to retain it, subject to the final outcome of the applicationunder Section 3 of the Act. The High Court, however, maintained themaintenance amount awarded to appellant No.2.

5. It is submitted by the learned counsel for the appellants that theFamily Court has jurisdiction to decide cases under Section 3 of theMuslim Women’s Protection Act and the High Court was not right insetting aside the same and erred in directing the appellant No.1 to fileapplication under Section 3 of Muslim Women’s Protection Act.

6. Refuting the contentions, learned counsel for the respondentsubmitted that an application under Section 125 Cr.P.C. cannot bemaintained by a Divorced Muslim Wife unless there is a consent of boththat the Husband and the divorced Wife to be governed by Section 125Cr.P.C as per Section 5 of the Muslim Women’s Protection Act. It wasfurther submitted that the Family Court has no jurisdiction to entertainapplications under Section 3 of the Act as the jurisdiction to file the caseunder Muslim Women’s Protection Act has not been conferred on thefamily courts under Section 7(2)(b) of the Family Courts Act, 1984.

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A7. Having regard to the rival contentions, the question falling forconsideration is whether the family court has jurisdiction to try applicationfiled by Muslim divorced woman for maintenance under Section 3 ofMuslim Women (Protection of Rights on Divorce) Act, 1986.

8. For proper appreciation of the contentions, we may usefullyBrefer to the provisions of the Act and the genesis of the enactments thatare under consideration before us.

9. Under the Muslim personal law, a divorced woman could beawarded maintenance only during the iddat period and not later. In Mohd.Ahmed Khan v. Shah Bano Begum and others (1985) 2 SCC 556, theCSupreme Court upheld the right of Muslim divorced wife under Section125 Cr.P.C. because Explanation (b) of Section 125 (1) Cr.P.C. includesa divorced wife till she remarries. In Shah Bano case, the SupremeCourt has held that a Muslim divorced woman unable to maintain herselfis entitled to claim maintenance under Section 125 Cr.P.C. even afterthe iddat period was over.D

10. After Shah Bano case, the Muslim Women (Protection ofRights on Divorce) Act (For short ‘Muslim Women Protection Act’)was enacted with effect from 19.05.1986 as per which a divorced Muslimwoman is not only entitled to maintenance for the iddat period from herformer husband but also to a reasonable and fair provision for the future.EThe preamble of the Muslim Women (Protection of Rights on Divorce)Act, 1986 reads as under:- “An Act to protect the rights of Muslim Women who have beendivorced by, or have obtained divorce from, their husbands and toprovide for matters connected therewith or incidental thereto.”F

11. Muslim Women (Protection of Rights on Divorce) Act, 1986does not deviate itself from the purpose, object and scope of the provisionsof maintenance under Criminal Procedure Code. The provisions of theAct are not inconsistent with the provisions of Chapter IX of the Code.The provision of this enactment provides remedies beneficial to the MuslimGwomen divorcee by making the former husband liable to provide thedivorced woman with reasonable and fair provision in addition to providingmaintenance and where the husband fails to comply with the order withoutsufficient cause, the Magistrate may issue warrant for levying the amountof maintenance and may sentence him to imprisonment for a term whichmay extend to one year. The near relatives of the woman are also madeH

liable under Section 4 of the Act. In case, the relatives are not in aposition to pay her, the State Wakf Board is also made liable to providemaintenance. While the Criminal Procedure Code provides the relief ofmaintenance only, the Act of 1986 furnishes to divorced woman,additionally, ‘a reasonable and fair provision’, the relief of recovery ofdower and return of marital gifts.

12. The important Section in the Act, 1986 is Section 3 whichprovides that a divorced woman is entitled to obtain from her formerhusband “maintenance”, “reasonable and fair Provision” and “Mahr”etc. Section 3(1)(a) and Section 3(2) of the Muslim Women’s ProtectionAct read as under:- “3. Mahr or other properties of Muslim woman to be givento her at the time of divorce.—(1) Notwithstanding anythingcontained in any other law for the time being in force, a divorcedwoman shall be entitled to—

(a) a reasonable and fair provision and maintenance to be madeand paid to her within the iddat period by her former husband;

(2) Where a reasonable and fair provision and maintenance orthe amount of mahr or dower due has not been made or paid orthe properties referred to in clause (d) of sub-section (1) have notbeen delivered to a divorced woman on her divorce, she or anyone duly authorised by her may, on her behalf, make an applicationto a Magistrate for an order for payment of such provision andmaintenance, mahr or dower or the delivery of properties, as thecase may be.”

After the enforcement of the Muslim Women’s Protection Act, adivorced Muslim woman is entitled to maintenance not only for the periodof iddat from her former husband but also to a reasonable and fairprovision for her future.The wordings of Section 3 of the Act indicatethat the husband has two separate and distinct obligations: (1) to make a“reasonable and fair provision” for his divorced wife; and (2) to provide“maintenance” for her. Section 3 of the Act prescribes forum for redressand the manner in which the order is to be executed. The Act confersexclusive jurisdiction on the Magistrate of the First Class to entertain anapplication under the Act by a Muslim woman where she resides.

13. In Danial Latifi and another v. Union of India, (2001) 7SCC 740, the Constitution Bench of the Supreme Court considered the A

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Aconstitutional validity of the provisions of the Muslim Women (Protectionof Rights on Divorce) Act, 1986 and upheld the validity of the provisionsof the Act and held as under:- “27. Section 3(1) of the Act provides that a divorced womanshall be entitled to have from her husband, a reasonable and fairBmaintenance which is to be made and paid to her within the iddatperiod. Under Section 3(2) the Muslim divorcee can file anapplication before a Magistrate if the former husband has notpaid to her a reasonable and fair provision and maintenance ormahr due to her or has not delivered the properties given to herbefore or at the time of marriage by her relatives, or friends, orCthe husband or any of his relatives or friends. Section 3(3) providesfor procedure wherein the Magistrate can pass an order directingthe former husband to pay such reasonable and fair provision andmaintenance to the divorced woman as he may think fit and properhaving regard to the needs of the divorced woman, standard ofDlife enjoyed by her during her marriage and means of her formerhusband. The judicial enforceability of the Muslim divorcedwoman’s right to provision and maintenance under Section 3(1)(a)of the Act has been subjected to the condition of the husbandhaving sufficient means which, strictly speaking, is contrary tothe principles of Muslim law as the liability to pay maintenanceEduring the iddat period is unconditional and cannot be circumscribedby the financial means of the husband. The purpose of the Actappears to be to allow the Muslim husband to retain his freedomof avoiding payment of maintenance to his erstwhile wife afterdivorce and the period of iddat.”

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“29.The important section in the Act is Section 3 which providesthat a divorced woman is entitled to obtain from her former husband“maintenance”, “provision” and “mahr”, and to recover from hispossession her wedding presents and dowry and authorizes theGMagistrate to order payment or restoration of these sums orproperties. The crux of the matter is that the divorced womanshall be entitled to a reasonable and fair provision and maintenanceto be made and paid to her within the iddat period by her formerhusband. The wordings of Section 3 of the Act appear to indicateHthat the husband has two separate and distinct obligations: (1) to

make a “reasonable and fair provision” for his divorced wife; and(2) to provide “maintenance” for her. The emphasis of this sectionis not on the nature or duration of any such “provision” or“maintenance”, but on the time by which an arrangement forpayment of provision and maintenance should be concluded,namely, “within the iddat period”. If the provisions are so read,-the Act would exclude from liability for postiddat periodmaintenance to a man who has already discharged his obligationsof both “reasonable and fair provision” and “maintenance” bypaying these amounts in a lump sum to his wife, in addition tohaving paid his wife’s mahr and restored her dowry as per Sections3(1)(c) and 3(1)(d) of the Act. ……..”

30. A comparison of these provisions with Section 125 CrPC willmake it clear that requirements provided in Section 125 and thepurpose, object and scope thereof being to prevent vagrancy bycompelling those who can do so to support those who are unableto support themselves and who have a normal and legitimate claimto support are satisfied. If that is so, the argument of the petitionersthat a different scheme being provided under the Act which isequally or more beneficial on the interpretation placed by us fromthe one provided under the Code of Criminal Procedure deprivethem of their right, loses its significance. The object and scope ofSection 125 CrPC is to prevent vagrancy by compelling thosewho are under an obligation to support those who are unable tosupport themselves and that object being fulfilled, we find it difficult”to accept the contention urged on behalf of the petitioners.[Underlining added]

The Constitution Bench upheld the provisions of the Act. But theConstitution Bench did not authoritatively decide on the question whetherthe Family Court would have jurisdiction to entertain an application filedby a divorced Muslim Woman for maintenance under the provisions ofthe Muslim Women Protection Act.

14. Under Section 3(1)(a) of the 1986 Act, a divorcee is entitledto get a reasonable and fair provision and maintenance to be made andpaid to her within the iddat period. On construing the expression, “a fairand reasonable provision and maintenance” as used in Section 3(1)(a)of the 1986 Act, the Supreme Court in Danial Latifi case has summedup its conclusion as under:- AB

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A“36. While upholding the validity of the Act, we may sum up ourconclusions:

(1) A Muslim husband is liable to make reasonable and fairprovision for the future of the divorced wife which obviouslyincludes her maintenance as well. Such a reasonable andBfair provision extending beyond the iddat period must bemade by the husband within the iddat period in terms ofSection 3(1)(a) of the Act.

(2) Liability of a Muslim husband to his divorced wife arisingunder Section 3(1)(a) of the Act to pay maintenance is notCconfined to the iddat period.

(3) A divorced Muslim woman who has not remarried and whois not able to maintain herself after the iddat period canproceed as provided under Section 4 of the Act against herrelatives who are liable to maintain her in proportion to theproperties which they inherit on her death according toMuslim law from such divorced woman including herchildren and parents. If any of the relatives being unable topay maintenance, the Magistrate may direct the State WakfBoard established under the Act to pay such maintenance.

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E(4)The provisions of the Act do not offend Articles 14, 15 and21 of the Constitution of India.”

15. Section 3 of 1986 Act opens with the words “notwithstandinganything contained in any other law for the time being in force,” a divorcedwoman shall be entitled to rights enumerated in clauses (a) to (d) ofSection 3(1) of 1986 Act. Muslim Women Protection Act may haveFconferred more rights but the Act confers these rights notwithstandinganything contained in Section 125 Cr.P.C. The non-obstante clause hasto be understood fairly and reasonably. The non-obstante clause cannotbe lightly assumed to bring in the effect of supersession. It should not beallowed to demolish or extinguish the existing right unless the legislativeGintention is clear, manifest and unambiguous. In Shabana Bano v. ImranKhan (2010) 1 SCC 666, the Supreme Court quashed the order of theFamily Court holding that even if the Muslim wife had been divorcedduring the period her application for maintenance is pending, she wouldbe entitled to claim maintenance from her husband under Section 125Cr.P.C. So, the case has been remanded to Family Court for disposal ofHthe case on its merits in accordance with law.

16. We may also refer to Section 5 of the Muslim Women’sProtection Act which gives divorced Muslim couples “an option to begoverned by the provisions of Sections 125 to 128 of the Code of CriminalProcedure, 1973” which they could jointly exercise at the first hearingof the case under the Act. Section 5 of the Act enables the parties atthe stage of first hearing, to withdraw from the applicability of theMuslim Women’s Protection Act and be governed by the provisionsof Criminal Procedure Code. Under Section 5 of the Muslim WomenProtection Act, on the date of the first hearing, a divorced womanand her former husband can declare that they prefer to be governedby Sections 125 to 128 of the Code and then the Magistrate has todispose of the application accordingly. Otherwise, the Magistratehas to deal with the application as per the provisions of the MuslimWomen Protection Act. Section 7 of the Muslim Women ProtectionAct deals with Transitional Provisions. As per Section 7 of the Act,an application by a divorced woman under Section 125 or underSection 127 of the Code pending before a Magistrate on thecommencement of Muslim Women Protection Act, shall,notwithstanding anything contained in that Code, subject to theprovisions of Section 5 of the Act, shall be disposed of by suchMagistrate in accordance with the provisions of the Muslim WomenProtection Act. This makes the legal provision very clear. That isonly a Magistrate of the First Class exercising jurisdiction underthe Code can dispose of the application in accordance with theprovisions of the Muslim Women Protection Act.

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17. The Family Courts Act, 1984 was enacted in public interestfor the establishment of Family Courts for the speedy settlement of familydisputes and it came into force on 14.09.1984. The jurisdiction of FamilyCourts is provided for in Section 7 of the Act. Sections 7 and 8 of theAct read as under:- F

“7. Jurisdiction. — (1) Subject to the other provisions of thisAct, a Family Court shall —

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(a) have and exercise all the jurisdiction exercisable by anydistrict court or any subordinate civil court under any lawfor the time being in force in respect of suits and proceedingsof the nature referred to in the Explanation; and (b)be deemed, for the purposes of exercising such jurisdictionunder such law, to be a district court or, as the case may be,H

Asuch subordinate civil court for the area to which thejurisdiction of the Family Court extends.

Explanation. — The suits and proceedings referred to in thissub-section are suits and proceedings of the following nature,namely: —

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(a) a suit or proceeding between the parties to a marriage for adecree of nullity of marriage (declaring the marriage to benull and void or, as the case may be, annulling the marriage)or restitution of conjugal rights or judicial separation ordissolution of marriage; C

(b) a suit or proceeding for a declaration as to the validity of amarriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage withrespect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction incircumstances arising out of a marital relationship; D

(e) a suit or proceeding for a declaration as to the legitimacy ofany person; (f) a suit or proceeding for maintenance; E(2) Subject to the other provisions of this Act, a Family Courtshall also have and exercise —

(a) the jurisdiction exercisable by a Magistrate of the first classunder Chapter IX (relating to order for maintenance of wife,children and parents) of the Code of Criminal Procedure,F1973 (2 of 1974); and (b)such other jurisdiction as may be conferred on it by anyother enactment.

18. Section 7(1)(a) of the Family Courts Act confers the entireGjurisdiction hitherto exercised by any district court or any subordinatecivil court in suits or proceedings relating to matters mentioned in clauses(a) to (g) of the Explanation. Sub-clause (b) creates a legal fictionendowing upon the Family Courts the status of the District Court orsubordinate Civil Court. Section 7(1) can apply only when:- (i) the suit or H

proceeding is of the nature envisaged by clauses (a) to (g) of theExplanation; and (ii) concerning the matter where the jurisdictions areexercisable by any District Court or Subordinate Court. On these counts,the application under Section 3 of Muslim Women’s Protection Act cannotbe said to be covered by Section 7(1) of the Act. As provided in Section3(2) of Muslim Women’s Protection Act, application can be moved onlybefore the First Class Magistrate having jurisdiction in the area underCriminal Procedure Code. Thus, an application under Section 3 of theAct cannot be maintained before the Family Court under Section 7(1) ofthe Family Courts Act.

19. Section 7(2)(a) confers jurisdiction upon the Family Courthitherto exercisable by a First Class Magistrate under Chapter IX (relatingto order for maintenance of wife, children and parents) of the CriminalProcedure Code. Sub-section (2)(a) of Section 7 of the Family CourtsAct confers limited jurisdiction upon the Family Court relating to thosematters only as are covered under Chapter IX of Criminal ProcedureCode. Section 7(2)(b) however relates to conferment of any additionaljurisdiction on the Family Courts by other enactments. This provision isin the nature of an enabling provision by which legislature can enlargethe Court’s jurisdiction by conferring additional jurisdiction.

20. The expression “conferred on it” occurring in sub-clause (b)of Section 7(2) speaks of conferment of the jurisdiction on the FamilyCourt by an enactment. Thus, under Section 7(2)(b), the jurisdiction mustbe specifically conferred and cannot be assumed or deemed to havebeen conferred. The provisions of the Muslim Women’s Protection Actdo not confer any jurisdiction on the Family Court. As pointed out earlier,Section 3(2) of the Muslim Women’s Protection Act provides that theapplication may be made to a Magistrate; but not to the Family Court.The Muslim Women’s Protection Act was enacted in 1986 subsequentto the Family Courts Act, 1984. In the light of the provisions, underSection 3(2) of the Muslim Women’s Protection Act especially conferringjurisdiction upon the First Class Judicial Magistrate, the application underSection 3 can lie only to the Magistrate having jurisdiction in the area.

21. Considering the provisions of Section 3 of Muslim Women’sProtection Act vis-à-vis the provisions of the Family Courts Act in AnjumHasan Siddiqui v. Smt. Salma B. AIR 1992 All 322, the learned SingleJudge of the Allahabad High Court held as under:- AB

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“8. Apart from the above no application under Section 3 lies to thedistrict court or sub-ordinate civil court. As provided in Section3(2) of 1986 Act, the application can be moved before the firstclass Magistrate having jurisdiction in the area under the Cr.P.C.Thus, Section 7(1) does not help the respondent at all.

9. Sub-clause (2) of Section 7 of the Family Court Act is also ofno help to the respondent since the Act confers only a limitedjurisdiction relating to those maters only as are covered by ChapterIX of the Criminal P.C. Only this limited jurisdiction has beentransferred to the Family Court. To this extent alone, the firstClass Magistrate having jurisdiction in the area for which FamilyCourt has been established loses his jurisdiction which is thenceforth exercisable by the Family Court only.

10. Thus, we have seen that neither under sub-section (1) norunder sub-section (2) of Section 7the Family Court’s Act has anyjurisdiction to entertain an application of the nature contemplatedby Section 3of the 1986 Act.

11. Faced with such a situation the learned counsel for therespondent turned to sub-sec. (2)(b). He urged that jurisdictionmay be deemed to have been conferred on the Family Court underthis provision. We are afraid, the learned counsel is again on aweak ground. The words ‘conferred on it’ in sub-clause (b) speaksof conferment of jurisdiction on the Family Court by an enactment.The jurisdiction must be specifically conferred and cannot beassumed to have been conferred. No provisions of 1986 Acthowever, confers any such jurisdiction on the Family Court. Onthe other hand Section 3(2)of the 1986 Act provides that theapplication may be made to a Magistrate and not to the FamilyCourt. Apart from this the 1986 Act was enacted subsequent tothe Family Court Actand its provisions supersedes all earlierenactments. Hence this section must prevail over the Family CourtsAct, 1984. Thus an application under Section 3can lie only to theMagistrate having jurisdiction in the area.

12. Section 3 of the 1986 Act itself recognises rights of divorcedMuslim Woman, prescribes a forum for rederess thereof andprescribes the manner of execution of the order made in thatbehalf. This makes the Act complete in itself and does not depend for support on any other enactment. The section begins with anon-obstante clause and it overrides all other provisions of thethen existing laws. Alt provisions contrary to what is contained inS-. 3 of 1986 Act, including the Family Courts Act, 1984, shallstand superseded by its provision. A comparison of the provisionsof 1984 and 1986 Acts would also show that the purpose andscope of the two Acts is somewhat different. Section 3 is onlylimited to certain claims enumerated therein which alone can beput forward by a divorced Muslim Woman under the Act in the”manner prescribed…...(Underlining added)

22. The question whether the Family Court has jurisdiction to tryapplication of the Muslim divorced woman for maintenance after cominginto force the Muslim Women’s Protection Act, was considered by theFull Bench of Bombay High Court in Karim Abdul Rehman Shaikh v.Shehnaz Karim Shaikh and others 2000 (3) Mh.L.J. 555 which alsotook the same view that a Muslim woman can apply under Sections 3and 4 of the Muslim Women’s Protection Act only to the First ClassMagistrate having jurisdiction under the Code and the Family Court cannotdeal with such applications and held as under:-

“61. It is important to note that there is no enactment containingan express provision that the Family Court shall have jurisdictionto deal with applications made by a divorced Muslim women undersections 3and 4of the Muslim Women Act. On the contrary, thescheme of the Muslim Women Actshows that such applicationcan be made only to the Magistrate of First Class exercisingjurisdiction under the Code. The Family Court’s Act is a priorenactment. Muslim Women Actdoes not even refer to the FamilyCourt’s Act. If it was the intention of the legislature to see that aMuslim women can file application before a Family Court anexpress provision to that effect would have been found in theMuslim Women Act. On the contrary, under section 5 of theMuslim Women Act, a divorced women and her former husbandcan declare that they prefer to be governed by sections 125 to128 of the Code and then the Magistrate has to dispose of theapplication accordingly. Otherwise, the Magistrate has to deal withit as per the provisions of the Muslim Women Act. There is noprovision under which a Muslim women can prefer to go to aFamily Court by making a joint declaration with her husband.

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ASection 7 says that application by a divorced women under section125 or under section 127 of the Code pending before a Magistrateon the commencement of the Muslim Women Act shallnotwithstanding anything contained in that Code and subject tothe provisions of section 5 of the Muslim Women Act shall bedisposed of by such Magistrate in accordance with the provisionsBof the Muslim Women Act. This makes the legal provision veryclear. It is only a Magistrate of the First Class exercising jurisdictionunder the Code who can dispose of even the pending applicationsand that too in accordance with the provisions of the MuslimWomen Act. Therefore, there is nothing in the provisions of theCMuslim Women Act to suggest that the Family Court hasjurisdiction to entertain applications under sections 3 and 4 of theMuslim Women Act.

62. Similar view has been taken by Division Bench of this Courtin Noor Jamaal’s case (supra) and we respectfully concur withDthe said view. We do not concur with decision of the DivisionBench of this Court in Allabuksh’s case (supra) which holds that,where a Family Court has been established, the power andjurisdiction of the Family Court to entertain an application by adivorced Muslim wife is not taken away expressly or by necessaryimplication by the Muslim Women Actand the remedy under theEMuslim Women Actis an additional remedy. In our opinion, thefact that the Muslim Women Act does not refer to a Family Courtor does not say that application under sections 3 and 4 can befiled before the Family Court is very material. If the jurisdiction ofthe Family Court was sought to be protected, there would have Fbeen an express provision making it clear that the Family Courthas jurisdiction to entertain applications of divorced Muslim womenunder sections 3 and 4 of the Muslim Women Act. We thereforehold that after coming into force of the Muslim Women Act, aMuslim women can apply under sections 3 and 4 of the said Actonly to the First Class Magistrate having jurisdiction under theG”Code. The Family Court cannot deal with such applications.[Underlining added]

23. In the present case, we are concerned with the questionwhether the application under Section 3(2) of the Act of 1986 can be H

filed before the Family Court or whether the Family Court can convertthe petition for maintenance under Section 125 Cr.P.C. to one underSection 3 or Section 4 of the Act of 1986. I fully agree with the viewtaken by the Full Bench of the Bombay High Court in Karim AbdulRehman Sheikh case. Since the Muslim Women’s Protection Act, 1986does not refer to the Family Court or does not say that an applicationunder Sections 3 and 4 can be filed before the Family Court, in my view,the Family Court cannot entertain the application of divorced Muslimwoman under Sections 3 and 4 of the Muslim Women’s Protection Act,1986.

24. The learned counsel for the appellant placed reliance uponthe judgment in Iqbal Bano case and submitted that in the said case,the Magistrate has converted the petition for maintenance under Section125 Cr.P.C. to the application under Section 3 of the Muslim Women’sProtection Act, 1986 and the same was upheld by the Supreme Court.The facts of the Iqbal Bano case are clearly distinguishable from thefacts of the present case. In Iqbal Bano case, the application underSection 125 Cr.P.C. was made before the Magistrate which also hadjurisdiction to entertain application under Section 3 of the MuslimWomen’s Protection Act. In that context, the Supreme Court upheld theorder converting the application under Section 125 Cr.P.C. as the oneunder Section 3 of the Muslim Women’s Protection Act.

25. Therefore, the application under Section 3(2) of the Act of1986 by the divorced wife has to be filed before the competent Magistratehaving jurisdiction if she claims maintenance beyond the iddat period.Even if the Family Court has been established in that area, the FamilyCourt not having been conferred the jurisdiction under Section 7 of theFamily Courts Act, 1984 to entertain an application filed under Section 3of the Muslim Women Protection Act, the Family Court shall have nojurisdiction to entertain an application under Section 3(2) of the Act of1986. The Family Court, therefore, cannot convert the petition formaintenance under Section 125 Cr.P.C. to one under Section 3 or Section4 of the Act of 1986. The High Court, in my view, rightly held that theFamily Court has no jurisdiction to entertain the petition under Sections 3and 4 of the Act of 1986 and that the Family Court cannot convert thepetition for maintenance under Section 125 Cr.P.C. to one under Section3 or Section 4 of the Act of 1986. I do not find any reason warrantinginterference with the impugned order.

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A26. In the result, the appeal is dismissed. The High Court hasgiven liberty to appellant No.1 to file application under Section 3 of theAct of 1986 before the competent Magistrate. The application if anyalready filed by the appellant No.1 or any application to be filed beforethe competent Magistrate of the First Class shall be heard and disposedof as expeditiously as possible. The Magistrate of the First Class shallBnot be influenced by any of the views expressed by this Court or by theHigh Court and shall consider the matter on its own merits.

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INDIRA BANERJEE, J.

1. I have gone through the judgment prepared by my esteemedsister, but I have not been able to persuade myself to agree that a FamilyCourt constituted under the Family Courts Act, 1984, lacks jurisdictionDto convert an application for maintenance filed by a Muslim womanunder Section 125 of the Code of Criminal Procedure 1973 (hereinafterreferred to as “Cr.P.C”) to an application under Section 3 of the MuslimWomen (Protection of Rights on Divorce) Act, 1986, (hereinafter referredto as the “1986 Act for Muslim Women”), and decide the same.

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2. The facts giving rise to this appeal, have been narrated by myesteemed sister and are not repeated to avoid prolixity.

3. The Family Courts Act, 1984 has been enacted to provide forthe establishment of Family Courts inter alia with a view to securespeedy settlement of disputes relating to marriage and family affairs andFfor matters connected therewith.

4. The Statement of Objects and Reasons for enactment of theFamily Courts Act records that several associations of women, otherorganizations and individuals from time to time, demanded that FamilyCourts be set up for the settlement of family disputes, where emphasisGshould be laid on conciliation and achieving socially desirable results andadherence to rigid rules of procedure and evidence should be eliminated.

5. The Law Commission had, in its 59[th] Report submitted in 1974,stressed that in dealing with disputes concerning the family, the Courtought to adopt an approach, radically different from that adopted inH

ordinary civil proceedings, and that it should make reasonable efforts atsettlement before the commencement of the trial. In 1976, the Code ofCivil Procedure was amended to provide for a special procedure to beadopted in suits and proceedings relating to matters concerning the family.

6. Parliament enacted the Family Courts Act to provide forestablishment of Family Courts with a view to promote conciliation in,and secure speedy settlement of disputes relating to marriage and familyaffairs, and matters connected therewith.

7. The Family Courts Act is a secular statute, which applies tomatters contemplated therein, irrespective of the religion of the litigatingparties. Section 3 of the Family Courts Act provides for establishment ofFamily Courts, after consultation with the High Court.

8. The Family Courts established under Section 3 of the FamilyCourts Act, derive jurisdiction from Section 7 of the said Act which isset out hereinbelow for convenience:- “7. Jurisdiction

(1) Subject to the other provisions of this Act, a Family Courtshall—

(a) have and exercise all the jurisdiction exercisable by anydistrict court or any subordinate civil court under any lawfor the time being in force in respect of suits and proceedingsof the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdictionunder such law, to be a district court or, as the case may be,such subordinate civil court for the area to which thejurisdiction of the Family Court extends.

Explanation.—The suits and proceedings referred to in thissub-section are suits and proceedings of the following nature,namely:—

(a) a suit or proceeding between the parties to a marriage fora decree of nullity of marriage (declaring the marriage to benull and void or, as the case may be, annulling the marriage)or restitution of conjugal rights or judicial separation ordissolution of marriage;(b) a suit or proceeding for adeclaration as to the validity of a marriage or as to the A

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Amatrimonial status of any person;

(c) a suit or proceeding between the parties to a marriagewith respect to the property of the parties or of either of them;(d) a suit or proceeding for an order or injunction incircumstance arising out of a marital relationship; B

(e) a suit or proceeding for a declaration as to the legitimacyof any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of theCperson or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Courtshall also have and exercise—

(a) the jurisdiction exercisable by a Magistrate of the firstclass under Chapter IX (relating to order for maintenance ofDwife, children and parents) of the Code of Criminal Procedure,1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by anyother enactment.”

E9. Section 8 of the Family Courts Act provides :- ‘Exclusion of jurisdiction and pending proceedings.

Where a Family Court has been established for any area,—

(a) no district court or any subordinate civil court referred toFin sub-section (1) of section 7 shall, in relation to such area,have or exercise any jurisdiction in respect of any suit orproceeding of the nature referred to in the Explanation tothat sub-section; (b) no magistrate shall, in relation to such area, have orexercise any jurisdiction or powers under Chapter IX of theGCode of Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature referred to in theExplanation to sub-section (1) of section 7 and everyproceeding under Chapter IX of the Code of CriminalProcedure, 1973 (2 of 1974),—H

(i) which is pending immediately before the establishment ofsuch Family Court before any district court or subordinatecourt referred to in that sub-section or, as the case may be,before any magistrate under the said Code; and

(ii) which would have been required to be instituted or takenbefore such Family Court if, before the date on which suchsuit or proceeding was instituted or taken, this Act had comeinto force and such Family Court had been established, shall stand transferred to such Family Court on the date onwhich it is established.”

10. On a reading of Section 7(1) along with explanation (f) toSection 7(1) of the Family Courts Act, it is patently clear that the FamilyCourt, established under Section 3 of the Family Courts Act, is clothedwith the jurisdiction and powers exercisable by a District Court or anySubordinate Civil Court, under any law for the time being in force, toentertain and decide any suit or proceeding for maintenance, whichwould include an application under Section 3 of the 1986 Act for MuslimWomen.

11. A Family Court, constituted for adjudication of family disputes,is quite different from the regular Criminal and Civil Courts. Theatmosphere in these Courts is much more informal and far less intimidatingthan the atmosphere in regular Civil and Criminal Courts. These Courtsare not bound by rules of evidence and rules of procedure. The FamilyCourts have the power to devise their own procedure for adjudication offamily disputes.

12. Section 5 of the Family Courts Act contemplates associationwith Family Courts, of social welfare organizations, persons professionallyengaged in promoting welfare of the family, persons working in the fieldof social welfare and any other persons, whose association with theFamily Court, would enable it to exercise its jurisdiction more effectively,in accordance with the purposes of the Family Courts Act.

13. Section 6 of the Family Courts Act provides for appointment,inter alia, of counsellors to assist a Family Court, in the discharge of itsfunctions, and Section 9 of the Family Courts Act casts a duty on theFamily Courts to endeavour, wherever it is possible, to assist and persuadethe parties in arriving at a settlement in respect of the subject matter of A

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Athe suit or proceeding, and for this purpose a Family Court may, subjectto any rules made by the High Court, follow such procedure as it maydeem fit. Unlike a Criminal Court or a Civil Court, a Family Court isobliged to adjourn proceedings, whenever there is reasonable possibilityof settlement between the parties.B14. The Family Court is to be deemed to be a Civil Court and B14. The Family Court is to be deemed to be a Civil Court andhave all the powers of such Court under Section 10 of the Family CourtsAct, and subject to the other provisions of the Family Courts Act and theRules made thereunder, the provisions of the Civil Procedure Code, 1908(hereinafter referred to as ‘CPC’) apply to suits and proceedings beforethe Family Court, except for proceedings under Chapter IX of the Cr.P.C.C

15. Notwithstanding sub-section (1) and sub-section (2) of Section10 of the Family Courts Act, which makes the provisions of the CPCapplicable to suits and proceedings before the Family Court, other thanthose under Chapter IX of the Cr.P.C., and the provisions of the Cr.P.C.applicable to all the proceedings under Chapter IX of that Code, it isDopen to the Family Court to lay down its own procedure with a view toarrive at a settlement in respect of the subject matter of the suit orproceeding.

16. Section 12 of the Family Courts Act envisages the assistanceinter alia of professional experts in the field of family welfare, whetherEor not related to the parties, to assist the Family Courts in dischargingtheir functions imposed by the Family Courts Act.

17. An important facet of the Family Courts Act is Section 13 ofthe said Act, which provides that notwithstanding anything contained inany law, no party to any suit or proceedings before a Family Court, shallFbe entitled as of right, to be represented by a legal practitioner. If theFamily Court considers it necessary in the interest of justice, it may seekthe assistance of a legal expert as amicus curiae. In this country, womenare, by and large, economically weaker. In the regular Civil and CriminalCourts, economically weak applicants, unable to afford lawyers ofGstanding could be pitted against the best legal brains hired by financiallystrong opponents. However, in proceedings for maintenance in the FamilyCourt, the parties are equally poised, with the same standard of legalrepresentation.

18. Another significant feature of the Family Courts Act is Section14, which enables a Family Court to receive as evidence, any report,H

statement, document, information or matter that may in its opinion helpto deal effectively with a dispute, whether or not the same would beotherwise relevant or admissible under the Indian Evidence Act, 1872.

19. Under Section 16 of the Family Courts Act, the evidence ofany person which is of a formal character, may be given by affidavit,and subject to just exceptions, be read in evidence in any suit orproceedings before a Family Court.

20. Therefore, in proceedings for maintenance, in a Family Court,Certificates, Documents etc. issued by Authorities/Employers etc. maybe proved by affidavits, without requiring presence in Court ofdisinterested witnesses, whose failure and/or inability to appear in Courton the dates of hearing often delays the proceedings.

21. Section 18 of the Family Courts Act makes a decree or orderother than an order under Chapter IX of the Cr.P.C. executable in thesame manner as a decree of a Civil Court, as prescribed by the CPC.An order under Chapter IX of the Cr.PC may be executed in the mannerprescribed for the execution of such order by the Cr.PC

22. Where a Family Court has been established for any area,Section 8 of the Family Courts Act denudes the District Court or anySubordinate Civil Court referred to in sub-section (1) of Section 7 ofjurisdiction in respect of any suit or proceeding of the nature referred toin the Explanation to that sub-section.

23. Section 8(b) of the Family Courts Act prohibits any Magistratefrom exercising jurisdiction or powers under Chapter IX of the CR.P.C.in relation to any area for which a Family Court has been established.

24. It is important to note that Section 20 of the Family CourtsAct, with its non-obstante clause gives the provisions of the Family CourtsAct overriding effect, over any other law, which would include the 1986Act for Muslim Women. The Family Courts Act is to have effect,notwithstanding anything inconsistent therewith, contained in anyother law, for the time being in force, or in any instrument havingeffect, by virtue of any law other than the Family Courts Act.

25. The non-obstante clause in Section 20 makes the legislativeintent in enacting the Family Courts Act absolutely clear. The provisionsof the Act are to have effect, notwithstanding anything inconsistent inany other law for the time being in force. In my view, the expression “in AB

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Aany other law, for the time being in force”, cannot be construed narrowlyto mean a law which was in force on the date of enactment and/orenforcement of the Family Courts Act, as sought to be argued by Counselappearing on behalf of the respondent. The expression “any other lawfor the time being in force” would include subsequently enacted laws, inforce, as long as Section 20 of the Family Courts Act is in operation.B

26. On a reading of Sections 7(1) and 7(2) of the Family CourtsAct, it is patently clear that a Family Court is deemed to be a DistrictCourt, or as the case may be Subordinate Civil Court, in the area towhich the jurisdiction of the Family Court extends, in respect ofproceedings of the nature, referred to in the Explanation to Section 7(1)Cand is to be deemed to be the Court of a Magistrate of the First class forthe purpose of exercising jurisdiction under Chapter IX of the Cr.P.C.Proceedings for maintenance are essentially civil proceedings.

27. As observed above, the Family Courts have jurisdiction inrespect of the matters specified in the Explanation (f) of Section 7(1),Dirrespective of religion or faith of the parties to the litigation. Wherevera Family Court is constituted, such Family Court not only exercises thejurisdiction and powers of any District Court or Subordinate Civil Courtin respect of suits and other proceedings of the nature referred to in theExplanation (f) to Section 7(1), that is, suits and other proceedings forEmaintenance, it also exercises the jurisdiction and powers of a Magistrateof the First Class under Chapter IX of the Cr.P.C.

28. The relevant provisions of Chapter IX of the Cr.P.C. are setout hereinbelow for convenience:

“CHAPTER IX

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ORDER FOR MAINTENANCE OF WIVES, CHILDRENAND PARENTS

125. Order for maintenance of wives, children andparents.- (1) If any person having sufficient meansneglects or refuses to maintain-G

(a) his wife, unable to maintain herself, or (b)his legitimate or illegitimate minor child, whethermarried or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being aH

married daughter) who has attained majority, where suchchild, is, by reason of any physical or mental abnormality orinjury unable to maintain itself, or (d)his father or mother, unable to maintain himself orherself, a Magistrate of the first class may, upon proof ofsuch neglect or refusal, order such person to make a monthlyallowance for the maintenance of his wife or such child, fatheror mother, at such monthly rate, as such Magistrate thinks fit,and to pay the same to such person as the Magistrate mayfrom time to time direct; …

Explanation.- For the purposes of this Chapter,- (a)“minor” means a person who, under the provisions ofthe Indian Majority Act, 1875 (9 of 1875) is deemed not tohave attained his majority; (b)“wife includes a woman who has been divorced by, orhas obtained a divorce from, her husband and has notremarried.

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126. Procedure.- (1) Proceedings under section 125 may betaken against any person in any district- (a) where he is, or (b) where he or his wife, resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in thepresence of the person against whom an order for paymentof maintenance is proceeded to be made, or, when his personalattendance is dispensed with, in the presence of his pleader,and shall be recorded in the manner prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the personagainst whom an order for payment of maintenance isproposed to be made is wilfully avoiding service, or wilfully AB

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Aneglecting to attend the Court, the Magistrate may proceedto hear and determine the case ex parte and any order somade may be set aside for good cause shown on an applicationmade within three months from the date thereof subject tosuch terms including terms at to payment of costs to theopposite party as the Magistrate may think just and proper.B(3) The Court in dealing with applications under section 125shall have power to make such order as to costs as may bejust.

127. Alteration in allowance.-…….C128. Enforcement of order of maintenance.- A copy of theorder of [maintenance or interim maintenance and expensesof proceeding, as the case may be,] shall be given withoutpayment to the person in whose favour it is made, or to hisguardian, if any or to the person to [whom the allowance forthe maintenance or the allowance for the interim maintenanceDand expenses of proceeding, as the case may be,] is to bepaid; and such order may be enforced by any Magistrate inany place where the person against whom it is made may be,on such Magistrate being satisfied as to the identity of theparties and the non- payment of the [allowance, or as thecase may be, expenses, due].”E29. The right to equality, irrespective of religion, is a basic humanright, recognized, reaffirmed and reiterated in the Universal Declarationof Human Rights adopted by the United Nations on December 10, 1948.Article 2 of the declaration reads:

“Article 2 : Everyone is entitled to all the rights and freedomsFset forth in the declaration, without distinction of any kind,such as race, colour, sex, language, religion, political or otheropinion, national or social origin, property, birth or otherstatus.”

30. The International Covenant for Civil and Political RightsG(ICCPR) obligates the state parties to ensure equal right of women toenjoyment of all rights mentioned in each of the covenants. This right isirrespective of religion. Article 14 of the ICCPR mandates “All personsshall be equal before the Courts and Tribunals” and Article 26 declaresthat “all persons are equal under the law and are entitled without anyHdiscrimination, to equal protection of the law…”.

31. The Convention on the Elimination of All Forms ofDiscrimination against Women 1979, commonly referred to as CEDAW,recognizes amongst others, the right of women to equality irrespectiveof religion, as a basic human right. Article 2 of CEDAW exhorts StateParties to ensure adoption of a woman friendly legal system and womanfriendly policies and practices.

32. As a signatory to the CEDAW, India is committed to adopt awoman friendly legal system and woman friendly policies and practices.The 1986 Act for Muslim Women, being a post CEDAW law, this Courtis duty bound to interpret the provisions of the said Act substantively,liberally, and purposefully, in such a manner as would benefit women ofthe Muslim community.

33. Under the Indian Constitution, the right to equality is afundamental right. All persons are equal before the law and are entitledto equal protection of the laws, be it substantive law or procedural law.Article 15 of the Constitution of India clearly prohibits discrimination ongrounds, inter alia, of religion or sex.

34. The competing and conflicting principles of religious freedomof citizens and gender equality for women, has posed a major challengeto the judiciary in India. Personal laws of the Muslims, which are governedby the Shariat law, are protected under the umbrella of religious freedomand therefore immune from challenge on the ground of violation of anyfundamental right or other constitutional right. Procedural laws wouldnot, however, enjoy the same immunity to challenge which substantiveMuslim Personal Laws enjoy.

35. Section 125 of the Cr.P.C. is a beneficial piece of legislation,specially enacted as a measure of social justice, the dominant purposewhereof is to ensure that a wife including a divorced wife, a child or aparent is not driven to penury and vagrancy. The Section provides asimple speedy remedy, inter alia, for a wife including a divorced wife,who is neglected by her husband/ex husband, even though he has sufficientmeans to maintain her. Such a wife or divorced wife can obtain an orderof maintenance from a Magistrate.

36. Proceedings under Section 125 of the Cr.P.C. are of a civilnature, as held by this Court in Vijay Kumar Prasad v. State of Bihar[1].There is no penal provision for neglect and/or failure to maintain a wifeor a divorced wife. However, non compliance of an order of maintenance A

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Aattracts the penal provisions of the Cr.P.C. In Zohara Khatoon andAnr. v. Mohd. Ibrahim[2], this Court held that wife includes a womanwho has obtained a decree for dissolution of marriage under the Dissolutionof Muslim Marriages Act, 1939.

37. In Md. Ahmed Khan v. Shah Bano Begum and Others[3],Bthis Court held that Section 125 of the Cr.P.C, which obliges a husbandto pay maintenance to his wife, including a divorced wife, cannot beoverridden by the personal laws of the Muslims.

38. This Court held that although Muslim law limits the husband’sliability to provide for maintenance of the divorced wife to the period ofiddat, it would be unjust to extend this principle of Muslim law to a case,Cwhere a divorced wife is unable to maintain herself, in which case shecould have recourse to Section 125 of the Cr.PC. Unfortunately, theaforesaid judgment led to protests, from a section of the Muslimcommunity, after which Parliament enacted the 1986 Act for MuslimWomen, which nullified the effect of the judgment of this Court in theDShah Bano Case (supra).

39. The 1986 Act for Muslim Women has been enacted to protectthe rights of Muslim women who have been divorced by, or have obtaineddivorce from, their husbands and to provide for matters connectedtherewith or incidental thereto.

E40. Section 3 of the 1986 Act for Muslim Women provides:- “Section 3. Mahr or other properties of Muslim woman tobe given to her at the time of divorce.

(1) Notwithstanding anything contained in any other lawfor the time being in force, a divorced woman shall beFentitled to (a) a reasonable and fair provision and maintenance tobe made and paid to her within the iddat period by herformer husband; (b) where she herself maintains the children born to herGbefore or after her divorce, a reasonable and fair provisionand maintenance to be made and paid by her formerhusband for a period of two years from the respective datesof birth of such children; 2 (1981) 2 SCC 509H3 (1985) 2 SCC 556

(c) an amount equal to the sum of mahr or dower agreed tobe paid to her at the time of her marriage or at any timethereafter according to Muslim law; and (d) all the properties given to her before or at the time ofmarriage or after her marriage by her relatives or friends orthe husband or any relatives of the husband or his friends.

(2) Where a reasonable and fair provision and maintenanceor the amount of mahr or dower due has not been made orpaid or the properties referred to in clause (d) of sub-section(1) have not been delivered to a divorced woman on herdivorce, she or any one duly authorised by her may, on herbehalf, make an application to a Magistrate for an order forpayment of such provision and maintenance, mahr or doweror the delivery of properties, as the case may be.

(3) Where an application has been made under sub-section(2) by a divorced woman, the Magistrate may, if he is satisfiedthat— (a) her husband having sufficient means, has failed orneglected to make or pay her within the iddat period areasonable and fair provision and maintenance for her andthe children; or (b) the amount equal to the sum of mahr ordower has not been paid or that the properties referred to inclause (d) of sub-section (1) have not been delivered to her, 3make an order, within one month of the date of the filing ofthe application, directing her former husband to pay suchreasonable and fair provision and maintenance to the divorcedwoman as he may determine as it and proper having regardto the needs of the divorced woman, the standard of lifeenjoyed by her during her marriage and the means of herformer husband or, as the case may be, for the payment ofsuch mahr or dower or the delivery of such properties referredto in clause (d) of sub-section (1) the divorced woman:Provided that if the Magistrate finds it impracticable to disposeof the application within the said period, he may, for reasonsto be recorded by him, dispose of the application after thesaid period.

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Athe order, the Magistrate may issue a warrant for levying theamount of maintenance or mahr or dower due in the mannerprovided for levying fines under the Code of CriminalProcedure, 1973 (2 of 1974), and may sentence such person,for the whole or part of any amount remaining unpaid afterthe execution of the warrant, to imprisonment for a term whichBmay extend to one year or until payment if sooner made,subject to such person being heard in defence and the saidsentence being imposed according to the provisions of thesaid Code.

41. Under Section 3(1) of the 1986 Act for Muslim Women, aCdivorced Muslim woman would be entitled to (a) a reasonable and fairprovision and maintenance to be made and paid to her within the iddatperiod by her former husband; (b) where she herself maintains the childrenborn to her before or after her divorce, a reasonable and fair provisionand maintenance to be made and paid by her former husband for aDperiod of two years from the respective dates of birth of such children;(c) an amount equal to the sum of mahr or dower agreed to be paid toher at the time of her marriage, or at any time thereafter, according toMuslim law; and (d) to all the properties given to her before or at thetime of marriage or after her marriage by her relatives or friends or thehusband or any relatives of the husband or his friends.E

42. Section 3(1) of the 1986 Act for Muslim Women, starts with anon-obstante clause. The non-obstante clause in Section 3(1) givesoverriding effect to the substantive provisions of Section 3(1) of 1986Act for a Muslim women. A divorced Muslim woman would be entitledto maintenance in accordance with Section 3(1) of the 1986 Act forFMuslim Women, notwithstanding anything contained in any other law inforce, including Sections 125 to 128 of the Cr.P.C. The non-obstanteclause is restricted in its application to sub section (1) of Section 3. Itdoes not apply to sub-Sections (2) and (3) of the 1986 Act for MuslimWomen.G43. Section 2(c) of the 1986 Act for Muslim women defines“Magistrate to mean Magistrate of the First Class, exercising jurisdictionunder the Code of Criminal Procedure, 1973 in the area where thedivorced woman resides”.

44. Section 4 of the 1986 Act for Muslim Women, enabling theHMagistrate to direct relatives to pay maintenance in certain circumstances, is not relevant for the purpose of this application. Section 5 which givesthe option to the divorced woman and her husband to be governed bythe provisions of Section 125 to 128 of the Cr.P.C., provided they give adeclaration by affidavit, is also not attracted in this case, since theRespondent has not agreed to be governed by the provisions of Sections125 to 128 of the Cr.P.C.

45. Section 7 provides that every application by a divorced Muslimwoman under Section 125 or Section 127 of the Cr.P.C., pending beforea Magistrate at the time of commencement of the 1986 Act for MuslimWomen shall, notwithstanding anything contained in that Code, and subjectto the provisions of Section 5 of the 1986 Act for Muslim Women, ofexercising option to be governed by the aforesaid provisions of the Code,be disposed by the Magistrate in accordance with the provisions of 1986Act for Muslim women.

46. In this case, the appellant made an application under Section125 of Cr.P.C. claiming maintenance as wife. In course of the proceedings,it transpired that the appellant’s husband had divorced her by the ‘TripleTalaq’ method, after which the application of the appellant was treatedas an application under Section 3 of the 1986 Act for Muslim Women. Itmay be pertinent to note that divorce by the ‘Triple Talaq’ is no longervalid, after enactment of the Muslim Women (Protection of Rights onMarriage) Act, 2019.

47. The question which arises for determination of this Court is,whether the 1986 Act for Muslim Women, particularly Section 3(2), 3(3),3(4), 4(c), 4(2) and 7 thereof read with the definition of “Magistrate” inSection 2(c), impliedly bars the jurisdiction of the Family Court to entertainor decide an application filed by a divorced Muslim Woman formaintenance. A rigid, constricted reading of the 1986 Act for MuslimWomen, to denude the Family Courts constituted under the Family CourtsAct of jurisdiction to decide an application thereunder, is in my viewimpermissible in law.

48. There can be no dispute that the Family Court alone hasjurisdiction in respect of personal and family matters relating to womenand men, irrespective of their religion. Family matters of Muslim womenpertaining inter alia to marriage, divorce etc. are decided by FamilyCourts, as also claims of Muslim wives to maintenance under Section125 of the Cr.P.C. There could be no reason to single out divorced Muslim A

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Awives to deny them access to the Family Courts, and that in my view,was never the legislative intent of the 1986 Act for Muslim Women.

49. Equality before the law and equal protection of the lawsenvisaged in Article 14 of the Constitution of India applies as much toprocedural laws as to substantive laws. This proposition finds supportBfrom the judgment of this Court in State of West Bengal v. Anwar AliSarkar reported in AIR 1952 SC 75. Reference may also be made tothe judgment of this Court in D.K. Yadav v. J. M. A. Industries Ltd.reported in (1993) 3 SCC 259 where this Court held:

“10. In State of W.B. v. Anwar Ali Sarkar per majority, a seven-CJudge Bench held that the rule of procedure laid down bylaw comes as much within the purview of Article 14 of theConstitution as any rule of substantive law...”

50. In Lachhman Dass v. State of Punjab reported in AIR 1963SC 222, a Constitution Bench of this Court accepted that Article 14Dprohibited discriminatory legislation whether substantive or procedural.However, the majority found that Article 14 did not forbid reasonableclassification and accordingly rejected a challenge to a law which provideda special procedure for the recovery of dues from the customers ofState Bank. In Lachhman Dass(supra)the majority held:

E“22….The law is now well settled that while Art.14 prohibitsdiscriminatory legislation directed against one individual orclass of individuals, it does not forbid reasonableclassification, and that for this purpose even one person orgroup of persons can be a class. Professor Willis says in hisConstitutional Law p.580 “a law applying to one person orFone class of persons is constitutional if there is sufficient basisor reason for it…

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23. On the principles stated above we are of the opinion thatthe Patiala State Bank is a class by itself and it will be withinthe power of the State to enact a law with respect to it. We areGalso of the opinion that the differentia between the PatialaState Bank and the other Banks has a rational bearing onthe object of the legislation. If the Funds of the Patiala StateBank are State Funds, a law which assimilates the procedurefor the determination and recovery of amounts due to the Bankfrom its customers to that prescribed for the determinationH

and recovery of arrears of revenue must be held to have ajust and reasonable relation to the purpose of the legislation.A law which provides for State funds being advanced tocustomers through State Bank can also provide for its beingrecovered in the same manner as revenue….”

51. Subba Rao J., delivering a separate dissenting judgment held:

“51. It is also well settled that the guarantee of equalprotection applies against substantive as well as procedurallaws. Jennings in his “Law of the Constitution”, 3[rd] Edn.,p.49 describes the idea of equality of treatment thus:..’

52. It is true that the view of Subba Rao J. was the minority view.However, there was no difference between the majority and the minoritywith the proposition of law summarized by Subba J. as quoted above.

53. In Meenakshi Mills v. Vishvanatha Sastri reported in AIR1955 SC 13, a Constitution Bench of this Court held:

“6. …. Article 14 of this Part guarantees to all persons theright of equality before the law and equal protection of thelaws within the territory of India. This article not onlyguarantees equal protection as regards substantive laws butprocedural laws also come within its ambit. The implicationof the article is that all litigants similarly situated are entitledto avail themselves of the same procedural rights for relief,and for defence with like protection and withoutdiscrimination. The procedural provisions of Act 30 of 1947had therefore to stand the challenge of Article 14 and couldonly be upheld provided they withstood that challenge.”

54. In Budhan Choudhry v. State of Bihar reported in AIR 1955SC 191, a seven Judge Constitution Bench of this Court decided achallenge to Section 30 of the Cr.P.C observing that:

“5. The provisions of Article 14 of the Constitution have comeup for discussion before this Court in a number of cases,namely, Chiranjit Lal Chowdhuri v. Union of India [AIR 1951SC 41], State of Bombay v. F.N. Balsara [AIR 1951 SC 318],State of West Bengal v. Anwar Ali Sarkar [AIR 1952 SC 75],Kathi Raning Rawat v. State of Saurashtra[AIR 1952 SC 123],Lachmandas Kewalram Ahuja v. State of Bombay [AIR 1952

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ASC 235] and Qasim Razvi v. State of Hyderabad [AIR 1953SC 156] and Habeeb Mohamad v. State of Hyderabad [AIR1953 SC 287]. It is, therefore, not necessary to enter uponany lengthy discussion as to the meaning, scope and effect ofthe article in question. It is now well established that whileArticle 14 forbids class legislation, it does not forbidBreasonable classification for the purposes of legislation. Inorder, however, to pass the test of permissible classificationtwo conditions must be fulfilled, namely, (i) that theclassification must be founded on an intelligible differentiawhich distinguishes persons or things that are groupedCtogether from others left out of the group and (ii) thatdifferentia must have a rational relation to the object soughtto be achieved by the statute in question. The classificationmay be founded on different bases; namely, geographical, oraccording to objects or occupations or the like. What isnecessary is that there must be a nexus between the basis ofDclassification and the object of the Act under consideration.It is also well established by the decisions of this Court thatArticle 14 condemns discrimination not only by a substantivelaw but also by a law of procedure. The contention now putforward as to the invalidity of the trial of the appellants has,Etherefore to be tested in the light of the principles so laid downin the decisions of this Court.”

55. The non-obstante Clause in Section 3(1) of the 1986 Act forMuslim Women provides, in effect and substance, that a divorced Muslimwoman would only be entitled to maintenance as provided in SectionF3(1) of the 1986 Act for Muslim Women as enumerated hereinabove,notwithstanding any other law including Section 125 of the Cr.PC.

56. It is now settled that a divorced Muslim woman cannot claimmaintenance under Section 125 of the Cr.P.C. from her husband afterthe enactment of the 1986 Act for Muslim Women. However, underGSection 3 read with Section 4 of the 1986 Act for Muslim Women, adivorced Muslim woman is entitled to an order of maintenance, if she isunable to maintain herself after the Iddat period and has not remarried.Section 5 of the 1986 Act for Muslim Women provides that a divorcedwoman and her former husband might decide by an affidavit or anyother declaration in writing, that they would prefer to be governed by theHprovisions of Section 125 to 128 of the Cr.P.C.

57. The constitutional validity of the 1986 Act for Muslim Womenhas been upheld by this Court in Danial Latifi and Another v. Union ofIndia (supra). There is however, no authoritative decision of this Courton the question of whether the Family Courts have jurisdiction to decidean application of a Muslim Woman for maintenance under the provisionsof the 1986 Act for Muslim women.

58. As observed above Section 7 of the Family Courts Actexpressly confers jurisdiction to a Family Court to exercise all jurisdictionexercisable by any District Court or any Subordinate Civil Court, underany law for the time being in force, in respect inter alia of all suits andproceedings for maintenance. The Family Court has also expressly beenconferred with jurisdiction exercisable by a Magistrate of the First Classunder Chapter IX of the Cr.P.C relating to maintenance. Under Section7(2)(b) of the Family Courts Act, the Family Court may exercise suchother jurisdiction as may be conferred on it by any other enactment.

59. The Family Courts Act, enacted long before enactment of the1986 Act for Muslim Women, obviously did not contemplate the laterlegislation. There is, therefore, no specific mention of the 1986 Act forMuslim Women in the Family Courts Act.

60. Section 8 excludes the jurisdiction of District Court orSubordinate Civil Court in respect of any suit or proceeding of the naturereferred to in the Explanation to sub-Section (1) of Section 7 and alsoexcludes the jurisdiction of a Magistrate in relation to an applicationunder Chapter IX of the Cr.P.C., once a Family Court is constituted withterritorial jurisdiction coextensive with that of the District Courts or theSubordinate Civil Courts or the Courts of First Class Magistrates underChapter IX of the Cr.P.C. There has not been any amendment in theFamily Courts Act after enactment of the 1986 Act for Muslim Womento expressly confer jurisdiction on Family Courts in respect of proceedingsunder the 1986 Act for Muslim Women.

61. It has thus been argued on behalf of the Respondent that theFamily Courts do not have the jurisdiction exercisable by a Magistrateof the First Class under the 1986 Act for Muslim Women, since the 1986Act for Muslim Women, does not confer any such jurisdiction on theFamily Courts, and Section 7 read with Section 8 of the Family CourtsAct only clothes the Family Court with the jurisdiction of the First ClassMagistrate in respect of proceeding for maintenance under Chapter IXof the Cr.P.C.

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A62. If there is any ambiguity, with regard to the jurisdiction of theFamily Court, by reason of use of the expression subordinate Civil Courtin Section 7(1)(a) and (b) of the Family Courts Act and the specificationof Magistrate of the First Class exercising jurisdiction under Chapter IXof the Cr.P.C. in Section 7(2)(a) thereof, this Court is duty bound toclear the ambiguity by interpreting the law in consonance with theBfundamental rights conferred under Articles 14 and 15 of the Constitution,and the country’s commitments under International Instruments andCovenants such as the CEDAW, keeping in mind the fact that the FamilyCourts Act was enacted two years before the 1986 Act for MuslimWomen.C[[4]]

63. In Iqbal Bano v. State of UP and Another[[4]], this Court heldthat the 1986 Act for Muslim Women only applies to divorced womenand not to a woman who was not divorced. In the aforesaid case, thisCourt held that proceedings under Section 125 of the Cr.P.C. were civilin nature, and if it were noticed that there was a divorced Muslim womanDwho had made an application under Section 125 Cr. P.C., it was open tothe Court to treat the same as a petition under the 1986 Act for MuslimWomen, considering the beneficial nature of the legislation.

64. Sub-section (2) of Section 3 provides that where a reasonableand fair provision and maintenance or the amount of mahr or dower dueEhas not been made or paid or the properties referred to in clause (d) ofsub-section (1) of Section 3 have not been delivered to a divorced womanon her divorce, she or any one duly authorized by her may, on her behalf,make an application to a Magistrate for an order for payment of suchprovision and maintenance, mahr or dower or the delivery of properties,as the case may be. In my view, a Family Court having jurisdiction is toFbe deemed to be the Court of a Magistrate, for the purpose of decidingthe claim of a divorced Muslim Woman to maintenance, on a harmoniousconjoint reading and construction of Sections 7 and 8 of the Family CourtsAct with Sections 3(2), 3(3), 4(1), 4(2), 5 and 7 of the 1986 Act forMuslim Women, in the light of the overriding provision of Section 20 ofGthe Family Courts Act.

65. Sub-section (2) of Section 3 is an enabling provision whichenables a divorced Muslim woman to make an application to a Magistratefor an order for payment of maintenance or mehr or dower or deliveryof properties, as the case may be. The non-obstante clause is restrictedH4 (2007) 6 SCC 785

to sub-section (1) of Section 3 and does not cover sub-section (2) ofSection 3 of the 1986 Act for Muslim Women. There is no conflictbetween Section 3(2) of the 1986 Act for Muslim women and the FamilyCourts Act. On the other hand, Section 20 of the Family Courts Act,1984 gives overriding effect to the Family Courts Act notwithstandinganything therewith contained in any other law in force. The Family Courtis to exercise all the jurisdiction exercisable by any District Court or anyother subordinate Civil court in respect of a proceeding for maintenance.

66. The 1986 Act for Muslim Women is essentially a civil law,which makes provisions for maintenance for divorced Muslim womenand not a criminal statute. The 1986 Act for Muslim women does containany penal provision for any default which enables a divorced MuslimWoman to apply for maintenance under the said Act. The penal provisionof the 1986 Act for Muslim Women is only to enforce compliance withan order under Section 31 of the said Act. The punishment ofimprisonment is only for non-compliance with the order of maintenance.The Magistrate referred to in Section 3(2) and other Sections of the1986 Act, is, for all practical purposes, to be deemed to be a Civil Courtsubordinate to the District Court.

67. Though divorced Muslim women are excluded from thepurview of Section 125 of the Cr.PC by reason of the 1986 Act forMuslim Women, Parliament has in its wisdom considered it necessary tomake provisions for expeditious orders in applications for maintenancefiled by divorced Muslim women. It is with this object in mind that Muslimwomen have been given the liberty of approaching the Magistrate andthe Magistrate is required to make an order within one month from thedate of filing of the application and the order of the Magistrate isexecutable in the same manner for levying fines under the Cr.PC.Violation of an order of the Magistrate entails sentence of imprisonmentfor a term which might extend to one year or until payment if soonermade, subject to such person being heard in defence and the sentencebeing imposed according to the provisions of the Cr.PC.

68. In my view, it was never the intention of the 1986 Act forMuslim Women to deprive divorced Muslim Women from the litigantfriendly procedures of the Family Courts Act and denude Family Courtsof jurisdiction to decide applications for maintenance of divorced Muslimwomen.

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A69. If proceedings under Section 125 Cr.P.C. are civil in nature asheld by this Court in Iqbal Bano (Supra), the Court of the Magistratedealing with an application under Section 125 Cr.P.C. is to be deemed aCivil Court for the purpose of deciding the application under Section 125Cr.P.C. On a parity of reasoning, an application under Section 3/4 of the1986 Act for Muslim Women is also civil in nature. The Court decidingBan application under Section 3/4 of the 1986 Act for Muslim Women isto be deemed to be a Civil Court.

70. Thus, the Family Court would have jurisdiction under Section7 of the Family Courts Act to entertain an application under Section 3and 4 of 1986 Act for Muslim Women, since the Court of MagistrateCdealing with such an application is to be deemed to be a Civil Courtsubordinate to the District Court.

71. A literal and rigid interpretation of the expression “SubordinateCivil Court” to single out divorced Muslim Women seeking maintenancefrom their husbands, access to Family Courts when all other womenDwhether divorced or not and even Muslim Women not divorced canapproach Family Courts would be violative of Article 14 of theConstitution.

72. It is true, that a matter which should have been, but has notbeen provided for in a statute cannot be supplied by courts, as to do soEwill be legislation and not construction. But there is no presumption thata ‘casus omissus’ exists and language permitting, the courts should avoidcreating a ‘casus omissus’ where there is none.

73. To quote Denning, L.J. in Seaford Court Estates Ltd. v. Asherreported in (1949) 2 All ER 155:F

“When a defect appears a judge cannot simply fold his handsand blame the draftsman. He must set to work on theconstructive task of finding of the intention of Parliamentand then he must supplement the written words so as to give‘force and life’ to the intention of the Legislature. A judgeGshould ask himself the question how, if the makers of the Acthad themselves come across this ruck in the texture of it, theywould have straightened it out? He must then do as they wouldhave done. A judge must not alter the material of which theact is woven, but he can and should iron out the creases”.

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74. The Supreme Court, while dealing with the definition of‘Industry’ in the Industrial Disputes Act, 1947, in Bangalore WaterSupply v. A. Rajappa[5], approved the rule of construction stated byDenning, L.J. This Court found the definition too general and ambiguous.BEG, C.J.I., said that the situation called for “some judicial heroics tocope with the difficulties raised”. Krishna Iyer, J. who delivered theleading majority judgment in that case referred with approbation to thepassage extracted above, from the judgment of Denning, L.J. in SeafordCourt Estates Ltd. v. Asher (supra).

75. The proposition of law which emerges from the judgmentsreferred to above is that, in discharging its interpretative function, thecourt can even correct obvious drafting errors. In an appropriate case,“the court will add words, or omit words or substitute words”. But “beforeinterpreting a statute in this way the Court must be abundantly sure ofthree matters: (1) the intended purpose of the statute or provision inquestion, (2) that by inadvertence the draftsman and Parliament failedto give effect to that purpose in the provision in question; and (3) thesubstance of the provision Parliament would have made, although notnecessarily the precise words Parliament would have used, had the errorin the Bill been noticed.”

76. Of course in this case, this Court has not added, omitted orsubstituted anything. This Court has only given a purposive interpretationto the expression Subordinate Civil Court in Section 7 of the FamilyCourts Act to include the Court of a Magistrate empowered to entertainproceedings for maintenance under the 1986 Act for Muslim Women,which are in essence and substance, civil proceedings.

77. To quote Venkatarama Aiyar, J. in Tirath Singh v. BachittarSingh[6]" where the language of a statute, in its ordinary meaningand grammatical construction, leads to a manifest contradiction ofthe apparent purpose of the enactment, or to some inconvenienceor absurdity, hardship or injustice, presumably not intended, aconstruction may be put upon it which modifies the meaning of thewords, and even the structure of the sentence.”

78. Tirath Singh v. Bachittar Singh (supra) has been followedin innumerable judgments of this Court and the passage extracted above 5 AIR 1978 SC 548

6 AIR 1955 SC 830

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Ahas been quoted with approval in Modern School v. Union of Indiareported in (2004) 9 SCC 741.

79. I am of the view that the Family Court, for the reasons discussedabove, had the jurisdiction to convert the application of the Appellantunder Section 125 of the Cr.P.C into an application under Section 3 ofBthe 1986 Act for Muslim Women and to decide the same.

80. The appeal should, in my view, be allowed. The judgment andorder under appeal are liable to be set aside.

O R D E R

In view of difference of opinions and the distinguishing judgmentsC(Hon’ble R. Banumathi, J. dismissed the appeal and Hon’ble IndiraBanerjee, J. allowed the appeal), the matter be placed before Hon’blethe Chief Justice of India for referring the matter to the Larger Bench.

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[2020] 7 S.C.R. 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 ofSupreme Court to transfer investigation (not case or appeal) – Held:s. 406 CrPC empowers the Supreme Court to transfer cases andappeals – However, transfer of investigation on the other hand wasnegated by the Supreme Court in the case of Ram Chander SinghSagar and Anr. v. State of Tamil Nadu – Therefore, having consideredthe contour of the power u/s. 406 CrPC, it must be concluded thatonly cases and appeals (not investigation) can be transferred.

Code of Criminal Procedure, 1973 – s. 174 – Whether theproceeding u/s. 174 CrPC conducted by the police to inquire intothe unnatural death, can be termed as an investigation – Held: Theproceeding u/s. 174 CrPC is limited to the inquiry carried out bythe police to find out the apparent cause of unnatural death – Theseare not in the nature of investigation, undertaken after filing of FIRu/s. 154 CrPC.

Code of Criminal Procedure, 1973 – s.181 (4) – Place oftrial in case of certain offences – Unnatural death of an actor inMumbai – Father of deceased actor filed FIR u/ss. 341, 342, 380,406, 420, 306, 506 and 120B of IPC in Patna alleging criminalbreach of trust and misappropriation of money along with otheroffences – Whether it was within the jurisdiction of the Patna Policeto register the FIR and commence investigation of the allegedincidents which took place in Mumbai – Held: Registration of FIRis mandated when information on cognizable offence is received bythe police – Precedents suggest that at the stage of investigation, itcannot be said that the concerned police station does not haveterritorial jurisdiction to investigate the case – In the instant case,the allegation relating to criminal breach of trust andmisappropriation of money which were to be eventually accountedfor in Patna (where the Complainant resides), could prima facie

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Aindicate the lawful jurisdiction of the Patna Police – This aspectwas dealt succinctly by Supreme Court in Lee Kun Hee, President,Samsung Corporation, South Korea & Ors. v. State of U.P. – Thus, noillegality was committed by Patna Police in registering the complaint– Also, at the stage of investigation, they were not required to transferthe FIR to Mumbai Police.

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Code of Criminal Procedure, 1973 – Delhi Special PoliceEstablishment Act, 1946 – s.6 – Unnatural death of an actor inMumbai – Inquiry by Police u/s. 174 CrPC – The father of thedeceased actor filed FIR u/ss. 341, 342, 380, 406, 420, 306, 506and 120B of IPC in Patna – The Bihar Government gave consent toCtransfer the investigation to the CBI u/s. 6 DSPE Act – No objectionto the petitioner if investigation is conducted by CBI – However, infuture, if commission of cognizable offence u/s. 175(2) CrPC isdetermined, the possibility of parallel investigation by the MumbaiPolice cannot be ruled out – Held: The ongoing investigation byDthe 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 ifthe latter case too gets investigated by the same agency, on thestrength of Supreme Court’s order – Such enabling order will makeit possible for the CBI to investigate the new case, avoiding therigors of s. 6 of the DSPE Act, requiring the consent from the StateEof Maharashtra – Therefore, CBI directed to investigate the newcase as well.

Disposing of the Transfer Petition, the Court HELD: TRANSFER POWER UNDER SECTION 406CRPCF

1. Section 406 CrPC empowers the Supreme Court totransfer cases and appeals. The scope of exercise of this poweris for securing the ends of justice. The precedents suggest thattransfer plea under Section 406 CrPC were granted in cases whereGthe Court believed that the trial may be prejudiced and fair andimpartial proceedings cannot be carried on, if the trial continues.However, transfer of investigation on the other hand was negatedby 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]

2. Having considered the contour of the power undersection 406 CrPC, it must be concluded that only cases and appeals(not investigation) can be transferred. The ratio in Ram ChanderSingh 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 tothe inquiry carried out by the police to find out the apparent causeof unnatural death. These are not in the nature of investigation,undertaken after filing of FIR under Section 154 CrPC. In theinstant case, in Mumbai, no FIR has been registered as yet. TheMumbai Police has neither considered the matter under Section175 (2) CrPC, suspecting commission of a cognizable offence norproceeded for registration of FIR under Section 154 or referredthe matter under Section 157 CrPC, to the nearest magistratehaving jurisdiction. [Para 18][381-E-G]

4. In the present case, the Mumbai Police has attemptedto stretch the purview of Section 174 without drawing up any FIRand therefore, as it appears, no investigation pursuant tocommission of a cognizable offence is being carried out by theMumbai police. They are yet to register a FIR. Nor they havemade a suitable determination, in terms of Section 175(2) CrPC.Therefore, it is pre-emptive and premature to hold that a parallelinvestigation is being carried out by the Mumbai Police. In caseof a future possibility of cognizance being taken by two courts indifferent jurisdictions, the issue could be resolved under Section186 CrPC and other applicable laws. No opinion is thereforeexpressed on a future contingency and the issue is left open tobe decided, if needed, in accordance with law. [Para 20][382-F-H]

JURISDICTION OF PATNA POLICE TO REGISTERCOMPLAINT

5. Having regard to the law enunciated by this Court it mustbe held that the Patna police committed no illegality in registeringthe Complaint. Looking at the nature of the allegations in theComplaint which also relate to misappropriation and breach oftrust, the exercise of jurisdiction by the Bihar Police appears to A

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Abe in order. At the stage of investigation, they were not requiredto transfer the FIR to Mumbai police. For the same reason, theBihar government was competent to give consent for entrustmentof investigation to the CBI and as such the ongoing investigationby the CBI is held to be lawful. [Para 30][386-D-F]

BDIRECTION 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 sameissue, in the fitness of things, it would be appropriate if the lattercase too gets investigated by the same agency, on the strengthCof this Court’s order. Such enabling order will make it possiblefor the CBI to investigate the new case, avoiding the rigors ofSection 6 of the Delhi Special Police Establishment Act, 1946requiring consent from the State of Maharashtra. [Para 36][389-E]

D7. In such a backdrop, to ensure public confidence in theinvestigation and to do complete justice in the matter, this Courtconsiders it appropriate to invoke the powers conferred by Article142 of the Constitution. As a Court exercising lawful jurisdictionfor the assigned roster, no impediment is seen for exercise ofplenary power in the present matter. Therefore while accordingEapproval for the ongoing CBI investigation, if any other case isregistered on the death of the actor and the surroundingcircumstances of his unnatural death, the CBI is directed toinvestigate the new case as well. [Para 41][391-A-C]

Ram Chander Singh Sagar and Anr. v. State of TamilFNadu (1978) 2 SCC 35 : [1978] 2 SCR 604; Manoj KSharma v. State of Chhatisgarh (2016) 9 SCC 1 : [2016]7 SCR 154; Lalita Kumari v. Govt. of UP (2014) 2 SCC1 : [2013] 14 SCR 713; Satvinder Kaur v. State (Govtof NCT of Delhi) (1999) 8 SCC 728 : [1999] 3 Suppl.GSCR 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; RasiklalaDalpatram Thakkar v. State of Gujarat (2010) 1 SCC1 : [2008] 7 SCR 1102; Lee Kun Hee, President, H

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Samsung Corporation, South Korea and Others v. Stateof Uttar Pradesh and Ors. (2012) 3 SCC 132 : [2012]4 SCR 287 – relied on.

Arnab Ranjan Goswami v. Union of India (2020) SCCOnline SC 462; Naresh Kavarchand Khatri v. State ofGujarat (2008) 8 SCC 300 : [2008] 7 SCR 1102; Stateof W.B. v. Committee for Protection of Democratic Rights(2010) 3 SCC 571 : [2010] 2 SCR 979 – referred to.

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Case Law Reference

CRIMINAL ORIGINAL JURISDICTION: Transfer Petition(Criminal) No. 225 of 2020.

Petitions Filed Under Section 406 of the code of CriminalProcedure, 1973 read with Order XXXIX of the Supreme Court Rules,2013 for Transfer of F.I.R. No. 241 of 2020 Dated 25.07.2020.

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Tushar Mehta, SG, Shyam Divan, Vikas Singh, Maninder Singh,R. Basant, Dr. A.M. Singhvi, Sr. Advs., Satish Maneshinde, Malak ManishBhatt, Ms. Devanshi Singh, Gurdeep Sachar, Ms. Chandni Ghatak, RajatBector, Ms. Anandini Fernandes, Nikhil Maneshinde, Varun Singh, NitinSaluja, Venkatesh, Ms. Deepika Kalia, Akshay Dev, Ms. Deepti Arya,Rishabh Rana, Mritunjay Singh, Ms. Satwik Mishra, Vikas Maini, SuhaelButtan, Kapish Seth, Rajat Nair, Kanu Agrawal, B.V. Balram Das, RahulChitnis, Sachin Patil, Amit Bhandari, Geo Joseph, Manu Sharma, AkshaySahay, Keshav Mohan, Prashant Kumar, Rishi Kumar Awasthi, PiyushVatsa, Ms. Ritu M. Arora, Prabhas Bajaj, Santosh Kumar - I, ArvindKumar Sharma, Advs. for the appearing parties.

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374SUPREME COURT REPORTS

[2020] 7 S.C.R.

AThe Judgment of the Court was delivered byHRISHIKESH ROY, J.

1. This Transfer Petition is filed under section 406 of the Code ofCriminal Procedure, 1973 (for short “CrPC”) read with Order XXXIXof the Supreme Court Rules, 2013 with prayer for transfer of the FIRBNo. 241 of 2020 (dated 25.7.2020) under Sections 341, 342, 380, 406,420, 306, 506 and 120B of the Indian Penal Code, 1860 (for short “IPC”)registered at the Rajeev Nagar Police Station, Patna and all consequentialproceedings, from the jurisdiction of the Additional Chief JudicialMagistrate III, Patna Sadar, to the Additional Chief MetropolitanCMagistrate, Bandra Mumbai. The matter relates to the unnatural deathof the actor Sushant Singh Rajput on 14.6.2020, at his Bandra residenceat Mumbai. The deceased resided within Bandra Police Station jurisdictionand there itself, the unnatural death under section 174 of CrPC wasreported.

D2. The petitioner is a friend of the deceased, and she too is in theacting field since last many years. As regards the allegations against thepetitioner in the FIR, the petitioner claims that she has been falselyimplicated in the Patna FIR, filed by Krishan Kishor Singh (respondentno. 2) – the father of the deceased actor. The petitioner and the deceasedwere in a live-in relationship but on 8.6.2020, a few days prior to theEdeath of the actor, she had shifted to her own residence at Mumbai.According to the petitioner,the Mumbai Police is competent to undertakethe investigation, even for the FIR lodged at Patna.

3. Heard Mr. Shyam Divan, learned Senior Counsel appearingfor the petitioner, Mr. Maninder Singh, learned Senior Counsel appearingFon behalf of Respondent No. 1 (State of Bihar), Mr. Vikas Singh, learnedSenior Counsel appearing on behalf of respondent No. 2 (Complainant),Dr. A.M. Singhvi and Mr. R. Basant, learned Senior Counsel appearingon behalf of respondent No. 3 (State of Maharashtra) and Mr. TusharMehta, learned Solicitor General of India appearing on behalf ofGrespondent No. 4 (Union of India)

4. The petitioner contends that the incidents alleged in theComplaint lodged by the father of the deceased, have taken place entirelywithin the jurisdiction of State of Maharashtra and therefore, theComplaint as received, should have been forwarded to the jurisdictionalpolice station at Bandra, Mumbai for conducting the investigation.H

However, despite want of jurisdiction, the Complaint was registered atPatna only because of political pressure brought upon the Bihar Policeauthorities. Mr Shyam Divan, the learned Senior Counsel for the Petitionerargues that the courts in Bihar do not exercise lawful jurisdiction in thesubject matter of the Complaintand since the acts alleged in the Complaintare relatable to Mumbai jurisdiction, the mere factum of Complainantbeing a resident of Patna, does not confer jurisdiction on the Bihar policeto conduct the investigation. Adverting to the subsequent transfer of theinvestigation to the CBI, Mr. Divan argues that since the Bihar policelacked jurisdiction to investigate the allegations in the Complaint, thetransfer of the investigation to the CBI on Bihar Government’s consent,would not amount to a lawful consent of the State government, underSection 6 of the Delhi Special Police Establishment Act, 1946 (for short“DSPE Act”). The FIR according to the petitioner is contradictory andthe Complaint fails to disclose how the alleged actions of the petitioner,led to the suicidal death of the actor. The petitioner projects that she hasfully co-operated with the Mumbai Police in their inquiry but will haveno objection if the investigation is conducted by the CBI. Mr. ShyamDivan the learned Senior Counsel submits that justice needs to be donein this case and powers under Article 142 of the Constitution can beinvoked by the Court.

5. Representing the State of Bihar, Mr. Maninder Singh, the learnedSenior Counsel submits that the Complaint disclosed a cognizable offenceand therefore, it was incumbent for the Patna Police to register the FIRand proceed with the investigation. Since allegations of criminal breachof trust, Cheating and defalcation of money from the account of thedeceased are alleged, the consequences of the offence are projected tobe within the jurisdiction of the State of Bihar. The Senior Counselhighlights that the Mumbai Police was conducting the enquiry into theunnatural death of the actor u/s 174, 175 CrPC and such proceedingbeing limited to ascertaining the cause of death, does not empowerMumbai Police to undertake any investigation, on the allegations in theComplaint of the Respondent No 2, without registration of an FIR atMumbai. Referring to the non-cooperation and obstruction of theMaharashtra authorities to the SIT of Bihar Police which reached Mumbaion 27.07.2020 and the quarantined detention of the Superintendent ofPolice, Patna who had reached Mumbai on 02.08.2020, senior counselargues that the Mumbai Police was trying to suppress the real facts andwere not conducting a fair and professional inquiry. Since no investigation AB

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Arelatable to the allegations in the complaint was being conducted andFIR was not registered by the Mumbai Police, the action of the BiharPolice in registering the Complaint, is contended to be legally justified.Onthat basis,the Bihar Government’s consent for entrustment of theinvestigation to the CBI is submitted to satisfy the requirement of Section6 of the DSPE Act. Besides, as the petitioner herself has called for aBCBI investigation and as the CBI has since registered a case andcommenced their investigation,(on the request of the State of Bihar), theSenior Counsel submits that this transfer petition is infructuous.

6. Projecting the agony of the deceased’s father, Mr. Vikas Singh,the learned Senior Counsel submits that the Complainant has lost hisConly son under suspicious circumstances and was naturally interested ina fair investigation to unravel the truth. The inquiry by the Mumbai Policeunder section 174 of the CrPC is not an investigation of the complainant’sallegations and therefore the registration of the case and investigationinto those allegations by the Bihar Police is contended to be justified.DSince only an investigation (not a case or appeal) is pending at Patna,and a legally competent investigation has commenced, invocation ofSection 406 power by this Court to transfer the investigation, is projectedto be not merited. When misappropriation and criminal breach of trust isalleged in respect of the assets of the deceased actor and the concernedproperty relatable to the alleged offence, will have to be accountedEeventually to the Complainant (as a Class I legal heir of the deceased),the action of the Patna Police is contended to be within jurisdiction,under Section 179 read with Section 181(4) of the CrPC which speaksof consequences ensuing at another place, as a result of the allegedcrime.F7. Representing the State of Maharashtra, Dr. Abhishek ManuSinghvi, the learned Senior Counsel submits that following the unnaturaldeath of Sushant Singh Rajput on 14.06.2020 at his Bandra residence,the Mumbai Police registered an Accidental Death Report(ADR) andcommenced inquiry under Section 174 of the CrPC to ascertain theGcause of death and also to determine whether the death was the resultof some criminal act committed by some other persons. In course of theinquiry, the statements of 56 persons were recorded and other evidencesuch as the Post Mortem report, Forensic report etc have been collected.If the inquiry discloses commission of a cognizable offence, the Mumbaipolice will register a FIR. According to Dr. Singhvi, there can be noH

outer time limit for conclusion of Section 174 or Section 175 CrPCproceedings. The State of Maharashtra Counsel argues that everyoffence shall ordinarily be inquired into and tried by a Court within whoselocal jurisdiction, the offence was committed and on that basis, Dr Singhvisubmits, that the Bihar police should have transferred the Complaint tothe Mumbai Police authorities. Alternately, they could have registered a“zero FIR” and then should have transferred the case for investigationto Mumbai police. Pointing towards potential misuse, Dr. Singhvi submitsthat if registration of Complaint in another state is permitted, it will enablea person to choose the investigating authority and will obstruct exerciseof lawful jurisdiction by the local police.This will impact the country’sfederal structure. The Senior Counsel refers to media reports to projectthat the Bihar Police were hesitant to register the Complaint ofRespondent No 2 but they were prevailed upon by political pressure.The Maharashtra counsel submits that the father and other familymembers of the deceased in their statements to the Mumbai Police,never mentioned about the allegations in the Complaint and those areprojected to be after thoughts and improvements. Under the constitutionalscheme, the States have exclusive power to investigate a crime and theSenior Counsel accordingly argues that crime investigation cannot beroutinely transferred to the Central Agency. Referring to the reasons(a)sensitivity and (b) Inter-state ramifications, given by the Bihar Policefor entrusting the investigation to the CBI, Dr. Singhvi argues that thereasons are neither germane nor bona fide. He submits that ordinarily,the local police should conduct investigation into any reported crime andentrustment of the investigation to the CBI must be an exception tomeet extraordinary exigencies, but here consent was given by Bihargovernment, for political exigencies.

8. Mr Tushar Mehta, the learned Solicitor General of India, appearsfor the Union of India and the CBI. He projects that the MaharashtraPolice is yet to register any FIR but is conducting only a limited inquiryunder section 174 of the CrPC, into the unnatural death of the actor. Inthe absence of any FIR by the Mumbai Police following the death of theactor on 14.06.2020, the FIR registered at Patna at the instance of thedeceased’s father is projected to be the only one pending. He thereforecontends that the present matter does not relate to two cases pending intwo different states. Referring to the contradictory stand and the parallelallegation of state’s Police being influenced by external factors in bothstates, Mr. Mehta submits that this itself justifies entrustment of the A

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Ainvestigation to an independent Central Agency. The learned SolicitorGeneral then points out that by acceding to the request made by theState of Bihar, the CBI has registered the FIR and commencedinvestigation. Besides the Directorate of Enforcement, a central agency,is also acting under the Prevention of Money Laundering Act, 2002. Hetherefore argues that a fair and impartial inquiry can be ensured if theBpolice of either state are kept away from investigating the alleged crime,relating to the suspicious death of the film actor. Adverting to the affidavitof the Maharashtra Police that they have recorded the statements of 56persons in the section 174 proceedings, the Solicitor General submitsthat since FIR is not yet registered and the Mumbai Police is dischargingClimited functions under section 174 of the CrPC, the investigation of anyalleged crime following registration of FIR is yet to legally commence inMumbai and as such, there is no case pending in the State of Maharashtrawhich can justify the invocation of powers under section 406 of theCrPC.

D9. Under the federal design envisaged by the Constitution, Policeis a state subject under List II of Seventh Schedule of the Constitution.Therefore, investigation of a crime should normally be undertaken bythe concerned state’s police, where the case is registered. There can besituations where a particular crime by virtue of its nature and ramification,is legally capable of being investigated by police from different states orEeven by other agencies. The entrustment of investigation to the CBI ispermitted either with consent of the concerned state or on orders of theconstitutional court. However, investigation of a crime by multipleauthorities transgressing into the others domain, is avoidable.

10. In the instant case, the petitioner repose confidence on MumbaiFpolice. The records of the case produced before this Court, does notprima facie suggest any wrong doing by the Mumbai Police. However,their obstruction to the Bihar police team at Mumbai could have beenavoided since it gave rise to suspicion on the bonafide of their inquiry.The Police at Mumbai were conducting only a limited inquiry into theGcause of unnatural death, under Section 174 CrPC and therefore, it cannotbe said with certainty at this stage that they will not undertake aninvestigation on the other aspects of the unnatural death, by registering aFIR.

11. Uncertain about the future contingency at Mumbai, the fatherHof the deceased has filed the Complaint at Patna, levelling serious allegations against the petitioner following which, the FIR is registeredand the Bihar Police has started their investigation. The case is nowtaken over by the CBI at the request of the Bihar government. Thepetitioner has no objection for investigation by the CBI, but is scepticalabout the bonafide of the steps taken by the Bihar government and thePatna police.

12. On the other hand, the projection from the side of theComplainant and the Bihar government is that the Mumbai Police evenduring the limited inquiry under Section 174 CrPC, are attempting toshield the real culprits under political pressure. This is however, stoutlyrefuted by the State of Maharashtra whose stand is that the Bihar policehas no jurisdiction to investigate the crime where, the incident and criminalacts if any, have occurred within the State of Maharashtra.

13. Transfer of investigation to the CBI cannot be a routineoccurrence but should be in exceptional circumstances. One factor whichhowever is considered relevant for induction of the Central Agency is toretain “public confidence in the impartial working of the State agencies”,as was recently reiterated for the Bench by Justice Dhananjaya YChandrachud, in Arnab Ranjan Goswami vs. Union of India 2020SCC Online SC 462. It is also the consistent view of the Court that it isnot for the accused to choose the investigating agency. In the instantcase, political interference against both states is alleged which has thepotential of discrediting the investigation. The legal process must thereforebe focused upon revelation of the correct facts through credible andlegally acceptable investigation. It must be determined whether theunnatural death was the result of some criminal acts. In order to lendcredibility to the investigation and its conclusion,it would be desirable inmy view, to specifythe authority, which should conduct the investigationin this matter.

14. At this stage, having regard to the respective stand of theparties,following core issues arise for consideration in this case:

(a) Whether this Court has power to transfer investigation(notcase or appeal) under Section 406 of the CrPC; (b) Whether the proceeding under Section 174 CrPC conductedby the Mumbai Police to inquire into the unnatural death, can be termedas an investigation; A

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(c) Whether it was within the jurisdiction of the Patna Police toregister the FIR and commence investigation of the alleged incidentswhich took place in Mumbai?As a corollary, what is the status of theinvestigation by the CBI on the consent given by the Bihar government;and

B(d) What is the scope of the power of a single judge exercisingjurisdiction under section 406 of the CrPC and whether this Court canissue direction for doing complete justice, in exercise of plenary power.

TRANSFER POWER UNDER SECTION 406 CRPC

15. Section 406 CrPC empowers the Supreme Court to transferCcases and appeals. The scope of exercise of this power is for securingthe ends of justice. The precedents suggest that transfer plea underSection 406 CrPC were granted in caseswhere the Court believed thatthe trial may be prejudiced and fair and impartial proceedings cannot becarried on, if the trial continues. However, transfer of investigation onDthe other hand was negated by this Court in the case of Ram ChanderSingh Sagar and Anr. vs. State of Tamil Nadu, (1978) 2 SCC35.Writing the judgment Justice V R Krishna Iyer,declared that:- “The Code of Criminal Procedure clothes this Court withpower under Section 406 to transfer a case or appeal fromEone High Court or a Court subordinate to one High Court toanother High Court or to a Court subordinate thereto. But, itdoes not clothe this Court with the power to transferinvestigations from one police station to another in the countrysimply because the first information or a remand report is forwarded to a Court. The application before us stems from aFmisconception about the scope of Section 406. There is as yetno case pending before any Court as has been made clear inthe counter affidavit of the State of Tamil Nadu. In the lightof this counter affidavit, nothing can be done except to dismissthis petition.

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G“2. If the petitioners are being directed to appear in a far-offcourt during investigatory stage it is for them to move thatcourt for appropriate orders so that they may not be tormentedby long travel or otherwise teased by judicial process. Ifjustice is denied there are other redresses, not under Section406, though it is unfortunate that the petitioners have notH

chosen to move that court to be absolved from appearanceuntil necessitated by the circumstances or the progress of theinvestigation. To come to this Court directly seeking an orderof transfer is travelling along the wrong street. We are surethat if the second petitioner is ailing, as is represented, andthis fact is brought to the notice of the Court which hasdirected her appearance, just orders will be passed in casethere is veracity behind the representation. We need hardlysay courts should use their processes to the purpose ofadvancing justice, not to harass parties. Anyway, so far asthe petition for transfer is concerned. there is no merit wecan see and so we dismiss it.”

16. The contrary references cited by the Petitioner where transferof investigation was allowed, do not in any manner, refer to adetermination on the question of competence to transfer investigationunder Section 406. In the cited cases, relief was granted without anydiscussion of the law, ignoring the long standing ratio laid down in RamChander Singh Sagar (Supra).

17. Having considered the contour of the power under section406 CrPC, it must be concluded that only cases and appeals (notinvestigation) can be transferred. The ratio in Ram Chander Singh Sagarand Anr. (Supra) in my view,is clearly applicable in the present matter.

SCOPE OF SECTION 174 CRPC PROCEEDING

18. The proceeding under Section 174 CrPC is limited to the inquirycarried out by the police to find out the apparent cause of unnaturaldeath. These are not in the nature of investigation, undertaken afterfiling of FIR under Section 154 CrPC. In the instant case, in Mumbai, noFIR has been registered as yet. The Mumbai Police has neitherconsidered the matter under Section 175 (2) CrPC, suspecting commissionof a cognizable offence nor proceeded for registration of FIR underSection 154 or referred the matter under Section 157 CrPC, to the nearestmagistrate having jurisdiction.

19. On the above aspect, the ratio in Manoj K Sharma vs. Stateof Chhatisgarh (2016) 9 SCC 1 will bear scrutiny. This was a case ofsuicide by hanging and Justice M B Lokur, speaking for the Bench heldas follows:- ABC

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A“19. The proceedings under Section 174 have a very limitedscope. The object of the proceedings is merely to ascertainwhether a person has died under suspicious circumstancesor an unnatural death and if so what is the apparent cause ofthe death. The question regarding the details as to how thedeceased was assaulted or who assaulted him or under whatBcircumstances he was assaulted is foreign to the ambit andscope of the proceedings under Section 174 of the Code.Neither in practice nor in law was it necessary for the policeto mention those details in the inquest report. It is, therefore,not necessary to enter all the details of the overt acts in theCinquest report. The procedure under Section 174 is for thepurpose of discovering the cause of death, and the evidencetaken was very short……

20. …… Sections 174 and 175 of the Code afford a completeCode in itself for the purpose of “inquiries” in cases ofDaccidental or suspicious deaths and are entirely distinct fromthe “investigation” under Section 157 of the Code…..

**** **** **** **** ****

22. In view of the above, we are of the opinion that theinvestigation on an inquiry under Section 174 of the Code isEdistinct from the investigation as contemplated under Section154 of the Code relating to commission of a cognizableoffence…..”

20. In the present case, the Mumbai Police has attempted to stretchthe purview of Section 174 without drawing up any FIR and therefore,Fas it appears, no investigation pursuant to commission of a cognizableoffence is being carried out by the Mumbai police. They are yet to registera FIR. Nor they have made a suitable determination, in terms of Section175(2) CrPC. Therefore, it is pre-emptive and premature to hold that aparallel investigation is being carried out by the Mumbai Police. In caseGof a future possibility of cognizance being taken by two courts in differentjurisdictions, the issue could be resolved under Section 186 CrPC andother applicable laws. No opinion is therefore expressed on a futurecontingency and the issue is left open to be decided, if needed, inaccordance with law.

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21. Following the above, it is declared that the inquiry conductedunder Section 174 CrPC by the Mumbai police is limited for a definitepurpose but is not an investigation of a crime under Section 157 of theCrPC.

JURISDICTION OF PATNA POLICE TO REGISTERCOMPLAINT

22. The Respondent no 2 in his Complaint alleged commission ofa cognizable offence and therefore, it was incumbent for the police toregister the FIR and commence the investigation. According to theComplainant, his attempt from Patna to talk to his son on telephone wasthwarted by the accused persons and the possibility of saving the life ofhis son through father son engagement,was missed out. In consequence,the Complainant lost his only son who at the appropriate time, as thelearned counsel has vividly submitted,was expected to light the funeralpyre of the father.

23. Registration of FIR is mandated when information oncognizable offence is received by the police. Precedents suggest that atthe stage of investigation, it cannot be said that the concerned policestation does not have territorial jurisdiction to investigate the case. Onthis aspect the ratio in Lalita Kumari Vs. Govt. of UP (2014) 2 SCC 1is relevant where on behalf of the Constitution Bench, Chief Justice PSathasivam, pronounced as under:- “120.1. The registration of FIR is mandatory under Section154 of the Code, if the information discloses commission of acognizable offence and no preliminary inquiry is permissiblein such a situation.

120.2. If the information received does not disclose acognizable offence but indicates the necessity for an inquiry,a preliminary inquiry may be conducted only to ascertainwhether cognizable offence is disclosed or not.”

24. The interpretation of Sections 177 and 178 of the CrPC wouldbe relevant on the issue. In Satvinder Kaur Vs. State (Govt of NCT ofDelhi) (1999) 8 SCC 728 for the Division Bench, Justice M B Shahwrote as under:- “12. A reading of the aforesaid sections would make it clearthat Section 177 provides for “ordinary” place of enquiry or A

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Atrial. Section 178, inter alia, provides for place of enquiry ortrial when it is uncertain in which of several local areas anoffence was committed or where the offence was committedpartly in one local area and partly in another and where itconsisted of several acts done in different local areas, it couldbe enquired into or tried by a court having jurisdiction overBany of such local areas. Hence, at the stage of investigation,it cannot be held that the SHO does not have territorialjurisdiction to investigate the crime.”

25. Likewise, Justice Arijit Pasayat, in Y Abraham Ajith vs.Inspector of Police, Chennai & Anr. (2004) 8 SCC 100, writing forCthe Division Bench pronounced as follows:- “12. The crucial question is whether any part of the cause ofaction arose within the jurisdiction of the court concerned.In terms of Section 177 of the Code, it is the place where theoffence was committed. In essence it is the cause of actionDfor initiation of the proceedings against the accused.

13. While in civil cases, normally the expression “cause ofaction” is used, in criminal cases as stated in Section 177 ofthe Code, reference is to the local jurisdiction where theoffence is committed. These variations in etymologicalEexpression do not really make the position different. Theexpression “cause of action” is, therefore, not a stranger tocriminal cases.

14. It is settled law that cause of action consists of a bundleof facts, which give cause to enforce the legal inquiry forFredress in a court of law. In other words, it is a bundle offacts, which taken with the law applicable to them, gives theallegedly affected party a right to claim relief against theopponent. It must include some act done by the latter since inthe absence of such an act no cause of action would possiblyaccrue or would arise.”G

26. When allegation of Criminal Breach of Trust andMisappropriation is made, on the jurisdictional aspect, this Court in AsitBhattacharjee Vs. Hanuman Prasad Ojha (2007) 5 SCC 786, in thejudgment written by Justice S B Sinha,observed as under:- H

“21. Section 181 provides for place of trial in case of certainoffences. Sub-section (4) of Section 181 was introduced inthe Code of Criminal Procedure in 1973 as there existedconflict in the decisions of various High Courts as regardscommission of offence of criminal misappropriation andcriminal breach of trust and with that end in view, it wasprovided that such an offence may be inquired into or triedby the court within whose jurisdiction the accused was boundby law or by contract to render accounts or return theentrusted property, but failed to discharge that obligation.

22. The provisions referred to hereinbefore clearly suggestthat even if a part of cause of action has arisen, the policestation concerned situate within the jurisdiction of theMagistrate empowered to take cognizance under Section190(1) of the Code of Criminal Procedure will have thejurisdiction to make investigation.”

27. In the later judgment of Naresh Kavarchand Khatri Vs. Stateof Gujarat (2008) 8 SCC 300, this Court reiterated the ratio inSatvinder Kaur (supra) and Asit Bhattacharjee (Supra).

28. Once again, in Rasiklala Dalpatram Thakkar Vs. State ofGujarat (2010) 1 SCC 1, while approving the earlier decisions inSatvinder Kaur (supra) in the judgment rendered by Justice AltamasKabir as he was then, the Supreme Court made it very clear that apolice officer cannot refrain from investigating a matter on territorialground and the issue can be decided after conclusion of the investigation.It was thus held:- “27. In our view, both the trial court as well as the BombayHigh Court had correctly interpreted the provisions of Section156 CrPC to hold that it was not within the jurisdiction of theinvestigating agency to refrain itself from holding a properand complete investigation merely upon arriving at aconclusion that the offences had been committed beyond itsterritorial jurisdiction.”

29. Moreover, the allegation relating to criminal breach of trustand misappropriation of money which were to be eventually accountedfor in Patna (where the Complainant resides), could prima facie indicatethe lawful jurisdiction of the Patna police. This aspect was dealt succinctly AB

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Aby Justice J S Khehar, as a member of the Division Bench in Lee KunHee, President, Samsung Corporation, South Korea and Others Vs.State of Uttar Pradesh and Ors.(2012) 3 SCC 132 and it was held asunder:- “38 ******B181.Place of trial in case of certain offences.—(1)-(3)***

(4) Any offence of criminal misappropriation or of criminal breachof trust may be inquired into or tried by a court within whose localjurisdiction the offence was committed or any part of the propertywhich is the subject of the offence was received or retained, orCwas required to be returned or accounted for, by the accusedperson.”

A perusal of the aforesaid provision leaves no room for any doubt,that in offences of the nature as are subject-matter of considerationin the present controversy, the court within whose local jurisdiction,Dthe whole or a part of the consideration “… were required to bereturned or accounted for.…” would have jurisdiction in thematter.”

30. Having regard to the law enunciated by this Court as notedabove, it must be held that the Patna police committed no illegality inEregistering the Complaint. Looking at the nature of the allegations in theComplaint which also relate to misappropriation and breach of trust, theexercise of jurisdiction by the Bihar Police appears to be in order. At thestage of investigation, they were not required to transfer the FIR toMumbai police.For the same reason, the Bihar government wascompetent to give consent for entrustment of investigation to the CBIFand as such the ongoing investigation by the CBI is held to be lawful.

OPTIONS BEFORE MUMBAI POLICE

31. The Patna police although found to be competent to investigatethe allegation in the Complaint, the FIR suggests that most of theGtransactions/incidents alleged in the Complaint occurred within theterritorial jurisdiction of the State of Maharashtra. The Mumbai Policewas inquiring into the unnatural death of the complainant’s son undersection 174 of the CrPC. So far, their inquiry has not resulted in any FIRsuggesting commencement of investigation on the criminal aspects, ifany. However, the incidents referred to in the Complaint does indicateH

that the Mumbai police also possess the jurisdiction to undertakeinvestigation on those circumstances. Therefore, in the event of a casebeing registered also at Mumbai, the consent for the investigation by theCBI under Section 6 of the DSPE Act can be competently given byMaharashtra Government.

INVESTIGATION ENTRUSTMENT TO CBI

32. While the CBI cannot conduct any investigation without theconsent of the concerned state as mandated under section 6, the powersof the Constitutional Courts are not fettered by the statutory restrictionof the DSPE Act. For this proposition, one can usefully refer to State ofWest Bengal Vs. Sampat Lal (1985) 1 SCC 317 where JusticeRanganath Mishra in his judgment for the 3 judges Bench,held that:- “13. ……….It is certainly not for this Court at the presentstage to examine and come to a conclusion as to whether thiswas a case of suicide or murder. If as a result of investigation,evidence is gathered and a trial takes place the Sessions Judgewill decide that controversy and it may be that in due coursesuch controversy may be canvassed before this Court in someform or the other. It would, therefore, be wholly inappropriateat this stage to enter into such a question.…………In ourconsidered opinion, Section 6 of the Act does not apply whenthe Court gives a direction to the CBI to conduct aninvestigation and counsel for the parties rightly did not disputethis position……………”

33. Similarly, the Constitution Bench in the judgment authored byJustice D K Jain in State of W B Vs. Committee for Protection ofDemocratic Rights (2010) 3 SCC 571 pronounced as follows:- “68. Thus, having examined the rival contentions in the contextof the constitutional scheme, we conclude as follows:

(v) Restriction on Parliament by the Constitution and restrictionon the executive by Parliament under an enactment, do notamount to restriction on the power of the Judiciary underArticles 32 and 226 of the Constitution.

(vi) If in terms of Entry 2 of List II of the Seventh Schedule onthe one hand and Entry 2-A and Entry 80 of List I on theother, an investigation by another agency is permissible A

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Asubject to grant of consent by the State concerned, there isno reason as to why, in an exceptional situation, the Courtwould be precluded from exercising the same power whichthe Union could exercise in terms of the provisions of thestatute. In our opinion, exercise of such power by theconstitutional courts would not violate the doctrine ofBseparation of powers. In fact, if in such a situation the Courtfails to grant relief, it would be failing in its constitutionalduty.

(vii) When the Special Police Act itself provides that subjectto the consent by the State, CBI can take up investigation inCrelation to the crime which was otherwise within thejurisdiction of the State police, the Court can also exercise itsconstitutional power of judicial review and direct CBI to takeup the investigation within the jurisdiction of the State. Thepower of the High Court under Article 226 of the ConstitutionDcannot be taken away, curtailed or diluted by Section 6 ofthe Special Police Act. Irrespective of there being any statutoryprovision acting as a restriction on the powers of the Courts,the restriction imposed by Section 6 of the Special Police Acton the powers of the Union, cannot be read as restriction onthe powers of the constitutional courts. Therefore, exerciseEof power of judicial review by the High Court, in our opinion,would not amount to infringement of either the doctrine ofseparation of power or the federal structure.”

34. As noted earlier, the FIR at Patna was subsequently transferredto the CBI with consent of the Bihar government during pendency ofFthis Transfer Petition. However, in future, if commission of cognizableoffence under section 175(2) CrPC is determined, the possibility of parallelinvestigation by the Mumbai Police cannot be ruled out. Section 6 of theDSPE Act, 1946 read with Section 5 prescribe the requirement of consentfrom the State government, before entrustment of investigation to theGCBI. As the CBI has already registered a case and commencedinvestigation at the instance of the Bihar government, uncertainty andconfusion must be avoided in the event of Mumbai Police also decidingto simultaneously investigate the cognizable offence, based on their findingin the inquiry proceeding. Therefore, it would be appropriate to decide atthis stage itself as to who should conduct the investigation on all theH

attending circumstances relating to the death of the actor Sushant SinghRajput.This issue becomes relevant only if another FIR is registered onthe same issue, at Mumbai. A decision by this Court on the point wouldconfer legitimacy to the investigation.

DIRECTION ON INVESTIGATION

35. The conflict between the two State governments on, whoamongst the two is competent to investigate the case, is apparent here.In K.V. Rajendran Vs. Superintendent of Police, CBCID, Chennai& Ors. (2013) 12 SCC 480, the 3 judges Bench in the judgment authoredby Justice Dr B S Chauhan held that transfer of investigation must be inrare and exceptional cases in order to do complete justice between theparties and to instil straight confidence in the public mind. While thesteps taken by the Mumbai police in the limited inquiry under Section174 CrPC may not be faulted on the material available before this Court,considering the apprehension voiced by the stakeholders of unfairinvestigation, this Court must strive to ensure that search for the truth isundertaken by an independent agency, not controlled by either of thetwo state governments. Most importantly, the credibility of theinvestigation and the investigating authority, must be protected.

36. The ongoing investigation by the CBI is held to be lawful. Inthe event a new case is registered at Mumbai on the same issue, in thefitness of things, it would be appropriate if the latter case too getsinvestigated by the same agency, on the strength of this Court’s order.Such enabling order will make it possible for the CBI to investigate thenew case, avoiding the rigors of Section 6 of the DSPE Act, requiringconsent from the State of Maharashtra.

37. In Monica Kumar (Dr.) and Anr. Vs. State of Uttar Pradeshand Others (2008) 8 SCC 781, Justice L.S. Panta in his judgment,referred to the inherent power conferred on this Court and stated thefollowing:- “45. Under Article 142 of the Constitution this Court inexercise of its jurisdiction may pass such decree or make suchorder as is necessary for doing complete justice in any “cause”or “matter” pending before it. The expression “cause” or“matter” would include any proceeding pending in court andit would cover almost every kind of proceeding in courtincluding civil or criminal. ………………………..This Court’s A

B

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GH

Apower under Article 142(1) to do “complete justice” is entirelyof different level and of a different quality. What would bethe need of “complete justice” in a cause or matter woulddepend upon the facts and circumstances of each case andwhile exercising that power the Court would take intoconsideration the express provisions of a substantive statute.BAny prohibition or restriction contained in ordinary lawscannot act as a limitation on the constitutional power of thisCourt. Once this Court has seisin of a cause or matter beforeit, it has power to issue any order or direction to do “completejustice” in the matter.”C

38. The above ratio makes it amply clear that the Supreme Courtin a deserving case, can invoke Article 142 powers to render justice.The peculiar circumstances in this case require that complete justice isdone in this matter. How this is to be achieved must now be decided.

39. As noted earlier, as because both states are making acrimoniousDallegations of political interference against each other, the legitimacy ofthe investigation has come under a cloud. Accusing fingers are beingpointed and people have taken the liberty to put out their own conjecturesand theories. Such comments,responsible or otherwise, have led tospeculative public discourse which have hogged media limelight. TheseEdevelopments unfortunately have the propensity to delay and misdirectthe investigation. In such situation, there is reasonable apprehension oftruth being a casualty and justice becoming a victim.

40. The actor Sushant Singh Rajput was a talented actor in theMumbai film world and died well before his full potential could be realised.FHis family, friends and admirers are keenly waiting the outcome of theinvestigation so that all the speculations floating around can be put torest. Therefore a fair, competent and impartial investigation is the needof the hour. The expected outcome then would be, a measure of justicefor the Complainant, who lost his only son. For the petitioner too, it willbe the desired justice as she herself called for a CBI investigation. TheGdissemination of the real facts through unbiased investigation wouldcertainly result in justice for the innocents, who might be the target ofvilification campaign. Equally importantly, when integrity and credibilityof the investigation is discernible, the trust, faith and confidence of thecommon man in the judicial process will resonate. When truth meets H

sunshine, justice will not prevail on the living alone but after Life’s fitfulfever, now the departed will also sleep well. Satyameva Jayate.

41. In such backdrop, to ensure public confidence in theinvestigation and to do complete justice in the matter, this Court considersit appropriate to invoke the powers conferred by Article 142 of theConstitution. As a Court exercising lawful jurisdiction for the assignedroster, no impediment is seen for exercise of plenary power in the presentmatter. Therefore while according approval for the ongoing CBIinvestigation, if any other case is registered on the death of the actorSushant Singh Rajput and the surrounding circumstances of his unnaturaldeath, the CBI is directed to investigate the new case as well.It is orderedaccordingly.

42. Before parting, it is made clear that the conclusion andobservations in this order is only for disposal of this petition and shouldhave no bearing for any other purpose.

43. The Transfer Petition is disposed of with the above order.

Ankit Gyan

Transfer Petition disposed of.

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