The Difference Method Makes: Judicial Restraint and Judicial Creativity in Rana Nahid v Sahidul Chisti

Abstract

Restraint and creativity are both necessary judicial attitudes. But when should judges exercise restraint in adjudication and when, creativity? This is the question posed by the Supreme Court’s 2020 split verdict in the case of Rana Nahid v Sahidul Chisti, which required the Court to decide whether Family Courts had jurisdiction over maintenance claims under the Muslim Women (Protection of Rights on Divorce) Act, 1986. By contrasting the two approaches taken by the judges to statutory interpretation in this case, the note argues that while judges should refrain from arbitrary rule making, creativity must be viewed as duty when it can fill a gap in the law or prevent an unreasonable outcome and is in furtherance of pre-existing legal principles.