Maintenance Order U/S 125 CrPC May Be Enforced In Any Place Where Person Against Whom It Is Made May Be; Residence Not Material: Delhi HC

The Delhi High Court has observed that the presence of a person at preferred jurisdiction at the time of application for maintenance against him under Section 125 of the Code of Criminal Procedure would be a material fact for execution of the said order of maintenance.

Justice Chandra Dhari Singh added that Section 128 of the Code which contemplates procedure for enforcement of order of maintenance, use the words 'where the person against whom it is made may be' and not where he is residing or where his permanent property is.

It observed,

"Mandate under Section 128 of the Cr.P.C. categorically provides for enforcement of order of maintenance by any Magistrate in any place where the person against whom it is made may be. The Code gives ample prerogative with respect to the jurisdiction where the person seeking maintenance may file for the same and its subsequent execution. The words used are, „where the person against whom it is made may be' and not where he is residing or where his permanent property is. The material fact, hence, would be the presence of the person at the preferred jurisdiction at the time of the application for maintenance."

The Bench was dealing with a plea challenging the Order dated 28th April, 2018 passed by Family Court, Dwarka, New Delhi in the Execution Petition between a couple.

The wife, petitioner, and the husband, respondent, got married in 1988 but started living separately since 2000. The wife had then filed a Maintenance Petition whereby the husband was directed to pay Rs. 1000 per month to the wife and Rs. 500 per month to the other petitioners being the children.

Since the Petition initially moved in 2005 was withdrawn on account of the settlement between the parties, another Execution Petition was filed by the petitioner before the Family Court for execution of order of maintenance.

The Trial Court vide the Impugned Order noted that the Memo of Parties in the Execution Petition indicated that the husband resided in Bihar. With the said reasoning, the Court had said that the wife can seek execution of the Order of maintenance before the Courts in Bihar. Hence, the Trial Court had directed that a transfer certificate may be issued for execution against the husband.

The High Court expressed it's unhappiness over the fact that the Trial Court had taken up the issue of maintainability after an order of maintenance was passed 16 years ago in 2005 and 4 years into the matter of execution.

"It is unfortunate that a woman and her children have to run pillar to post to avail their rights to which they are entitled under the law of the country. material fact, hence, would be the presence of the person at the preferred jurisdiction at the time of the application for maintenance," the Court said while setting aside the impugned order.

Sec. 128 of CrPC provides that "an order of maintenance may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non- payment of the allowance due."

Advocate Mallika Parmar appearing for the petitioners submitted that the wife was well within the mandate of the Code since the husband was in the jurisdiction of Delhi while the application for maintenance was filed and adjudicated against him.

It was also submitted that as per sec. 128 of the Code, the order of maintenance may be enforced by any Magistrate where the person against whom it is made may be and therefore under Cr.P.C., the wife 'may' have proceeded for execution at the place of permanent residence of the husband, but the same was an option and not an obligation.

On the other hand Advocate Kunal Malhotra, appearing on behalf of the husband, vehemently opposed the petitioner's submission by arguing that sec. 126 of the Cr.P.C. discusses the procedure and proceedings under sec. 125 with regards to the maintenance and not for execution of the same.

"It is apparent from the bare reading of Section 126 read with Section 128 of the Cr.P.C. that a person may file for maintenance and have the proceedings initiated under Section 125 of the Cr.P.C. before the concerned Magistrate in any district where the husband is, where he or the wife resides or where they have last resided. Further, the mandate under Section 128 of the Cr.P.C. categorically provides for enforcement of order of maintenance by any Magistrate in any place where the person against whom it is made may be," the Court analysed.

The Court took note of the fact that the provisions under the Cr.P.C. and the findings of the Courts were clear and definitive on the issue of jurisdiction in cases of maintenance under sec. 125 of the Cr.P.C.

"The Court makes available the option to the wife to proceed before a Court for maintenance and its execution where either the husband is, or where either of the parties resides as well as the place where they used to reside. There may be alternative jurisdictions available to the person seeking execution of order of maintenance and it is upon the meeting of the requirements of the provisions that the person "may" approach the concerned court in the appropriate jurisdiction," the Court added.

On the facts of the case, it was observed that while the wife may have approached the Courts in Bihar where the husband alleged had his permanent residence and immovable property, however, her right to approach a Court in Delhi also subsisted.

"The rights of the Petitioners are in consonance with the provisions of the law, since, the Respondent used to reside in Delhi at the time of application. Moreover, the Petitioners had the opportunity to execute within the jurisdiction of the Court where the order of maintenance was passed," the Court said.

Accordingly, the Court allowed the petition by setting aside the impugned order while remaining the proceedings back to the Family Court, Dwarka, New Delhi, with a direction for fresh adjudication of the execution petition.

Case Title: ASHA DEVI & ORS v. MUNESHWAR SINGH @ MUNNA

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