Crl.R.C.No.1290 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 14.11.2022

PRONOUNCED ON : 25.11.2022

CORAM:

THE HON'BLE MR.JUSTICE P.VELMURUGAN

Crl.R.C.No.1290 of 2022

and

Crl.M.P.No.13855 of 2022

Mohammed Yasin

... Petitioner

..vs..

1.Jannath

2.Minor Son Ameera

Represented by the Natural Guardian

his mother, the first respondent herein

... Respondents

Criminal Revision Case filed under Sections 397 r/w 401 Cr.P.C to

set aside the order in Crl.M.P.No.6 of 2022 in M.C.No.13 of 2015 dated

28.06.2022 on the file of the Family Court, Perambalur.

For Petitioner

: Mr.C.Sai Krishna

for Mr.V.Raghavachari

For Respondents

: Mr.R.Venkatesulu

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.

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Crl.R.C.No.1290 of 2022

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.

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Crl.R.C.No.1290 of 2022

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

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Crl.R.C.No.1290 of 2022

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 ord