Madras High Court
Kumar vs Gomathi on 11 September, 2023
C.M.A.(MD) No.825 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.(MD) No.825 of 2023
and
C.M.P.(MD) No.11657 of 2023
Kumar ... Appellant
-vs-
1.Gomathi
2.Minor.Suhashini
rep.by the first respondent ... Respondents
Civil Miscellaneous Appeal filed under Section 19 of the Family
Courts Act, 1984, praying to set aside the fair and decreetal order, dated
27.06.2023, passed in M.C.No.15 of 2022 in H.M.O.P.No.34 of 2022, on the
file of the Family Court, Tirunelveli.
For Appellant : Ms.K.Anusuya
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C.M.A.(MD) No.825 of 2023
JUDGMENT
[Judgment of the Court was made by S.S.SUNDAR, J.]
This civil miscellaneous appeal is directed against the fair and
decreetal order, dated 27.06.2023, passed in M.C.No.15 of 2022 in
H.M.O.P.No.34 of 2022, by the Family Court, Tirunelveli.
2. It is not in dispute that the appellant is the husband. The
appellant's wife and minor daughter, who are respondents herein, filed
M.C.No.15 of 2022, before the Family Court, Tirunelveli, under Section 125 of
the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”) for maintenance.
3. The Family Court, Tirunelveli, by order dated 27.06.2023,
partly allowed the said petition directing the appellant herein to pay a sum of
Rs.7,500/- (Rupees seven thousand and five hundred only) per month to the
wife / first respondent herein and Rs.6,000/- (Rupees six thousand only) per
month to the minor daughter / second respondent herein and also directed
the appellant to pay a sum of Rs.3,000/- (Rupees three thousand only)
towards litigation expenses to the respondents herein. Questioning the
quantum of maintenance that was awarded by the Family Court, Tirunelveli,
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C.M.A.(MD) No.825 of 2023
in favour of the respondents herein, the appellant has filed this civil
miscellaneous appeal.
4. This Court, in Maria Antony Chandra Prakash, s/o. James
vs. Sheela Regina, reported in 2023-1-L.W.(Crl.) 768, has held that no
appeal will lie as against the order passed by the Family Court even in an
application filed under Section 125 Cr.P.C., as the said order is revisable in
terms of Section 397 Cr.P.C., read with Section 19(4) of the Family Courts Act,
1984. The relevant portion of the said decision is extracted hereunder:
“10. Though the learned Single Judge has come
to the conclusion that criminal jurisdiction cannot be
invoked under Section 397 of the Code of Criminal
Procedure against any order relating to the right of
maintenance, as referred to by us already, a careful
reading of Section 7(2)(a) and Section 10(2) of the Family
Courts Act vividly makes the position clear that the Family
Court is also considered as a Criminal Court and therefore,
the provisions of the Code of Criminal Procedure or the
Rules made thereunder shall apply to the proceedings
under Chapter IX before a Family Court. This view of ours
is also supported by a judgment of the Full Bench of the
Madhya Pradesh High Court in Rajesh Shukla v. Meena
[2005 (2) MPLJ 483], wherein, in paragraphs 4 and 5, it
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C.M.A.(MD) No.825 of 2023
has been held as under:
“4. From bare perusal of sub-section (2) of
Section 7 of the Act, it is apparent that jurisdiction
exercisable by a Magistrate of First Class under
Chapter IX of the Code of Criminal Procedure, 1973 (2
of 1974) relates to maintenance of wife, children and
parents. Thus, under Sub-section (2) of Section 7, the
Family Court exercises the jurisdiction of Magistrate
First Class under Chapter IX of the Code of Criminal
Procedure (hereinafter, referred to as the "Code").
Section 8 relates to exclusion of jurisdiction and
pending proceedings. Under Clause (b) of Section 8 no
Magistrate, shall, in relation to such area, have or
exercise any jurisdiction or power under Chapter IX of
the Code. So powers of a Magistrate under Chapter IX
of the Code can be exercised at a place where Family
Court is established by the Family Court only and not
by other Judicial Magistrate of the district. Section 10
of the Act provides for the procedure. Subsection (2) of
Section 10 provides that subject to the other provisions
of this Act and the rules, the provisions of the Code or
rules made thereunder, shall apply to the proceedings
under Chapter IX of the Code before a Family Court.
Sub-section (2) of Section 18 of the Act provides that
an order passed by a Family Court under Chapter IX
of the Code shall be executed in the manner
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C.M.A.(MD) No.825 of 2023
prescribed for the execution of such order by that
Code.
5.From a perusal of the scheme of the Act, it
is clear that Family Court exercises two types of
powers. Cases except the case under Chapter IX of
the Code are decided by the Family Court as a District
Court. The Family Court while dealing with the
proceedings under Chapter IX of the Code Family
Court exercises the jurisdiction of a Judicial
Magistrate First Class. In the circumstances, when
orders have been passed in exercise of the provisions
of the Code, revision before this Court under Section
19(4) of the Act cannot be termed as Civil Revision.
Proceedings are arising out of the Code, thus
essentially final orders so passed will be revisable
under Section19(4) of the Act as Criminal Revision."
11.In the light of the above legal position, the
issue is no longer res integra, hence, we are of the
considered view that as against the order passed by a
Family Court either refusing or granting maintenance in
favour of the wife or husband, the aggrieved party can
always file a criminal revision under Section 397 Code of
Criminal Procedure. Further, even though the right of
maintenance is a civil right, but, in the present context of
having a remedy against the order directing the payment of
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C.M.A.(MD) No.825 of 2023
such maintenance, it has to be seen that under Section
125(3) of Code of Criminal Procedure, in case of
noncompliance, the Family Court has to issue a warrant
levying the amount due as if it is fine and will have to
sentence such a person for imprisonment as provided. This
apart, as per Section 126(2) of Code of Criminal Procedure,
the Family Court/Judicial Magistrate has to proceed in the
matter as if it is a summons case. Coupled with this, on a
consideration of the provisions in Sections 7(2)(a), 10, 18
and 19 of the Family Courts Act, we have no hesitation to
hold that the aggrieved persons have to file only a Criminal
Revision Petition under Section 397 of Code of Criminal
Procedure read with Section 19(4) of the Family Courts Act.
Therefore, we direct the Registry to list the Criminal
Revision Case No. 1094 of 2021, as per roster, before the
learned single Judge for disposal of the same on merits
and in accordance with law.”
5. In view of the law laid down by this Court earlier, this Court
finds that this civil miscellaneous appeal is not maintainable.
6. Hence, giving liberty to the appellant to file a criminal revision
petition under Section 397 Cr.P.C., this civil miscellaneous appeal is
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C.M.A.(MD) No.825 of 2023
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
[S.S.S.R., J.] [D.B.C., J.]
11.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
1.The Judge,
Family Court,
Tirunelveli.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
S.S.SUNDAR, J.
and
____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.825 of 2023
D.BHARATHA CHAKRAVARTHY, J.
krk
C.M.A.(MD) No.825 of 2023
and
C.M.P.(MD) No.11657 of 2023
11.09.2023
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https://www.mhc.tn.gov.in/judis
