O R D E R

This revision case has been preferred against the order dated

28.06.2022 made in Crl.M.P.No.6 of 2022 in M.C.No.13 of 2015 on the file of the Family Court, Perambalur.

2. The petitioner is the husband and the first respondent is the wife of the petitioner and the second respondent is their minor son. The respondents herein filed a petition under Section 125 Cr.P.C in M.C.No.13 of 2015 before the learned Chief Judicial Magistrate, Perambalur seeking maintenance from the petitioner. After trial, the learned Chief Judicial Magistrate awarded a sum of Rs.5,000/- per month to each of the respondents herein as maintenance. The petitioner failed to pay the said maintenance amount and hence, the respondents filed a petition under Section 128 Cr.P.C in C.M.P.No.6 of 2022 before the Family Court, Perambalur for execution of the order of the learned Chief Judicial Magistrate, Perambalur. The Family Court, Perambalur after hearing the arguments advanced on either side had given an opportunity to the petitioner to pay the entire arrears amount and also directed to pay not less than a sum of Rs.10,000/- on or before 28.07.2022 to the respondents, failing which, directed to issue warrant for executing the order. Challenging the said order, the petitioner has preferred the present revision case before this Court.

3.1 The learned counsel for the revision petitioner submitted that the Family Court, Perambalur has no jurisdiction to entertain the petition filed under Sections 125 to 128 Cr.P.C and the learned Magistrate alone got jurisdiction to try the cases. He further submitted that there is a bar under Section 3 of Muslim Women (Protection of Rights on Divorce) Act 1986.

3.2 The learned counsel for the revision petitioner by placing reliance on the decision of the Hon’ble Supreme Court in Shahidul Haq Chisti Vs Smt.Rana Nahid @ Reshma @ Sana & Anr. reported in 2010 SCC Online Raj 2819 submitted that the application filed under Section 125 Cr.P.C is maintained before the Magistrate, who is otherwise competent to hear the application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

3.3 The learned counsel for the revision petitioner further submitted that the first respondent/wife voluntarily left the matrimonial home without any valid reason and the petitioner also sent an application to the Jammath seeking divorce, as per the Personal Law. The Special Act prevails over general law and therefore, the respondents can only claim maintenance under the Special legislation and not under Section 125 Cr.P.C. The parties had settled their dispute under mutual agreements as early as on 2016 before the Jammath, and the petitioner herein also deposited a sum before the Jammath, which is readily available for disbursement to her as a fair and reasonable maintenance. Further, the Family Court has failed to consider the fact that a review petition is pending against the maintenance order.

Therefore, the order passed by the Family Court is liable to be set aside.

4.1 Per contra, the learned counsel for the respondents submitted that the petitioner was directed to pay maintenance to the respondents as per the order of the learned Chief Judicial Magistrate, Perambalur dated 07.02.2019 in M.C.No.13 of 2015. Since the petitioner has not paid any maintenance amount, a huge arrears is to be paid by him for 81 months. Challenging the order of the learned Magistrate, no appeal or revision is pending and also no stay order is passed and hence, as on date, the order of the learned Magistrate is enforceable under law. The Judge, Family Court, Perambalur has rightly appreciated the entire materials and given an opportunity to the petitioner to pay the entire arrears amount within a stipulated time, failing which, a warrant was ordered to be issued. However, the petitioner has not taken any steps to comply with the order of the Family Court, but in order to avoid the payment, he filed the present revision without any valid reason.

4.2