ORDER N.N. Mithal, J.
1. An order passed by the Family Court repelling the appellant plea regarding lack of Family Courts jurisdiction to decide respondent's application under S. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act hereafter) is under, challenge in this appeal. The appellant (husband) before us has urged that such an application was not enterlainable by the Family Court and the impugned order was illegal for want of jurisdiction. This submission is countered by the respondent on the plea that the Family Court had jurisdiction in the matter under S. 7 thereof.
2. We have considered the rival submission and we are of the view that the contention of the appellant must prevail.
3. Admittedly the proceedings have been initiated on an application captioned under S. 3 of the 1986 Act. It is true that mere caption cannot be conclusive of the matter and substance of the applications is more material and important. The allegations made in the application arc that the parties were married on 4-10-83 and the appellant had divorced her on 25-2-91 but she had neither been paid the dower money nor the articles given to her on the occasion of her marriage had been returned back to her and in the alternative the price thereof has also not been paid by the appellant. These allegations leave no room for doubt that the application was essentially one under S. 3 of the 1986 Act, relevant portion of clause (i) whereof reads as under:--
"3. Mahr or other properties of Muslim woman to be given to her at the time of divorce-- (i) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to--
(a) to (b).....
(c) An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
....."
4. The point that remains to be seen is whether an application under S. 3 of 1986 Act can be entertained by the Family Court or whether it lies within the exclusive jurisdiction of the concerned Magistrate as provided by the Act itself. The respondent vehemently urged that the application could be entertained only by the Family Court in view of S. 7 of the 1984 Act. We may therefore first consider S. 7 of the Family Courts Act, 1984.
"7. Jurisdiction.-- (1) .Subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.-- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974);
(b) such other jurisdiction as may be conferred on it by any other enactment."
The section consists of two parts. The first relates to civil jurisdiction and the other to the criminal jurisdiction but this too is limited to Chapter IX of Cr. P. C. Besides this under S. 7(2)(b) a provision has been made for conferment of jurisdiction on the Family Court by any other enactment also. According to the respondent her case would be covered by explanation (c) of S. 7(i) of the Act. The contention must unhesitatingly be rejected.
5. S. 7(1)(a) confers the entire jurisdiction hitherto exercised by any district court or any subordinate civil court in suits or proceedings relating to matters mentioned in clauses (a) to (g) of the explanation. Sub-clause (b) creates a legal fiction endowing upon the Family Courts the status of the district court or subordinate civil court. Similarly S. 7(2)(a) confers the powers and jurisdiction hither to exercisable by first class Magistrate on the Family Court in relation to Chapter IX of the Criminal P.C., 1973.
6. Section 7(2)(b) however relates to conferment of any additional jurisdiction on the Family Courts by other enactments. This provision is in the nature of an enabling provision by which legislature can enlarge the Courts jurisdiction.
7. The point canvassed for the respondent is that an application under Section 3 of the 1986 Act can be filed before the family, court because it relates to property of parties to the marriage. This plea is not sustainable in view of the fact that Section 7(1) can apply only when (i) the suit or proceeding is of the nature envisaged by clauses (a) to (g) of the explanation, and (ii) the matter was cognisable by the District Court or any subordinate civil court. On both these counts application under S. 3 of the 1986 Act cannot be said to be covered by S, 7. The application is neither a suit nor a proceeding and such a matter was also not cognisable by the Civil Court. It was vainly urged that the word 'proceeding' is of wide import and will cover S. 3 matter also. We find it difficult to accept this submission. The context in which the word 'proceeding' has been used in juxtaposition to the word 'suit' 'indicates that the proceeding also has to be akin to a suit or related to a suit. It cannot lextend to a proceeding of criminal nature.
8. Apart from the above no application under S. 3 lies to the district court or subordinate civil court. As provided in Section 3(2) of 1986 Act the application can be moved before the first class Magistrate having jurisdiction in the area under the Cr.P.C. Thus S. 7(1) does not help the respondent at all.
9. Sub-clause (2) of Section 7 of the Family Court Act is also of no help to the respondent since the Act confers only a limited jurisdiction relating to those matters only as are covered by Chapter IX -of the Criminal P.C. Only this limited jurisdiction has been transferred to the Family Court. To this extent alone the first Class Magistrate having jurisdiction in the area for which Family Court has been established loses his jurisdiction which is thence forth exercisable by the Family Court only.
10. Thus, we have seen that neither under sub-section (1) nor under sub-section (2) of S. 7 the Family Court's Act has any jurisdiction to entertain an application of the nature contemplated by Section 3 of the 1986 Act.
11. Faced with such a situation the learned counsel for the respondent turned to sub-sec. (2)(b). He urged that jurisdiction may be deemed to have been conferred on the Family Court under this provision. We are afraid, the learned counsel is again on a weak ground. The words 'conferred on it' in sub-clause (b) speaks of conferment of jurisdiction on the Family Court by an enactment. The jurisdiction must be specifically conferred and cannot be assumed to have been conferred. No provisions of 1986 Act however, confers any such jurisdiction on the Family Court. On the other hand Section 3(2) of the 1986 Act provides that the application may be made to a Magistrate and not to the Family Court. Apart from this the 1986 Act was enacted subsequent to the Family Court Act and its provisions supersedes all earlier enactments. Hence this section must prevail over the Family Courts Act, 1984. Thus an application under Section 3 can lie only to the Magistrate having jurisdiction in the area.
12. Section 3 of the 1986 Act itself recognises rights of divorced Muslim Woman, prescribes a forum for rederess thereof and prescribes the manner of execution of the order made in that behalf. This makes the Act complete in itself and does not depend for support on any other enactment. The section begins with a non-obstante clause and it overrides all other provisions of the then existing laws. Alt provisions contrary to what is contained in S-. 3 of 1986 Act, including the Family Courts Act, 1984, shall stand superseded by its provision. A comparison of the provisions of 1984 and 1986 Acts would also show that the purpose and scope of the two Acts is somewhat different. Section 3 is only limited to certain claims enumerated therein which alone can be put forward by a divorced Muslim Woman under the Act in the manner prescribed. In other respects it seems to us that even a divorced Muslim woman can press her claim in the Family Court.
13. Having considered the matter therefore we are of the view that an application under S. 3 of 1986 Act can lie only before the Magistrate concerned and the Family Court established under the 1984 Act cannot exer-cise jurisdiction unless the same had been specifically conferred upon the Family Court under the provision of S. 2(b). The Family Court in this case was therefore, not competent to deal with the application moved by the respondent for want of jurisdiction.
14. In view of the above we allow the appeal and set aside the order dated 10-9-1991 passed by the Family Court. This however, will not debar or prejudice the respondent from moving a proper application before the appropriate court having jurisdiction in the matter in accordance with law.
15. Appeal allowed.