Court Retains Power To Execute Its Maintenance Order Against Person Residing Outside Its Jurisdiction: Kerala High Court

The Kerala High Court on Tuesday held that even though an order of maintenance may be enforceable at the place where the person - against whom it is made - resides, the court which passed the order also retains the power to execute it outside the jurisdiction where such person is residing. 

The Single Judge Bench of Justice A. Badharudeen considered the legal question as to whether a court which passed an order of maintenance under Section 125 and 127 of the Code of Criminal Procedure (CrPC) is competent to execute the order against a person, who has been residing in a place outside its jurisdiction.

"...it is necessary in the interests of justice to visualise the plight of poor wife and children or the parents, as the case may be, if a view taken to the effect that each and every execution proceedings to enforce order of maintenance obtained by the wife, children and parents at the place where the person against whom the order was made. If such a proposition is declared, a clever husband or son or daughter, as the case may be, could very well shift their residence, outside the jurisdiction of the court where the order of maintenance sought to be executed, so as to defeat the enforcement of the order. No doubt, it may be easy for them to shift their residence periodically, to defeat the enforcement of the maintenance order," the court observed.

The observations were made in the judgement on two petitions which challenged the decision of the Family Court at Malappuram to return the execution petitions with the observation that as per Section 128 CrPC, the court order is to be executed at the place of residence of the respondents.

It was contended by the counsels for the petitioners that since Section 128 employs the word 'may', the power of the court to execute an order passed under Section 125 and 127 of Cr.P.C shall not cease in cases where the respondent has been residing outside the jurisdiction of the Court.

The counsel placed reliance on the decisions of the Delhi High Court in Asha Devi & Ors. v. Muneshwar Singh @ Munna (2021), and that of the Division Bench of the Kerala High Court in Anoop Vijay v. Arunima P.T. to buttress the argument. 

On the other hand, the counsels for the respondents argued that the term 'may' used in Section 128 Cr.P.C. has be understood as 'shall' and the execution of orders passed under Section 125 or 127 of Cr.P.C has to be done by the court, where the person against whom the order is made.

The counsels relied on the decisions in Ramji Missar & Anr. v. State of Bihar (1963) and in Mohan Singh & Ors. v. International Airport Authority of India & Ors  in support of their contention. The counsels drew attention to the observation made in State of U.P v. Jogendra Singh where the Apex Court observed that while there is no doubt that the word 'may' generally does not mean 'must' or 'shall', it is also well settled that it could mean 'must' or 'shall' in the light of the context.

Justice Badharudeen in the judgement noted that it is the settled law that in cases where statute provides the word `may', the apex court has consistently held that in certain circumstances, the term 'may' has to be read as 'shall'. 

"No doubt, while interpreting a provision of law, the legislative intent and the impact of the provision of laws are decisive factors. In Section 128 of Cr.P.C, it has been provided that any 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. But the statute vigilantly avoided the word `shall', deemed to be with intention to retain the jurisdiction of the Family Court, which passed the order also in the matter of enforcement of the order," the court observed.

The court also took note of the Apex Court decision in Bhaskar Lal Sharma & Anr. v. Monica & Ors. It then observed that when the statute uses the word 'may', whether the same is to be understood as `shall' or the statute makes it as `mandatory' or `discretionary' shall have to be understood with reference to the context in which the legislation was enacted and the consequence of reading the provisions as `mandatory' or discretionary'.

"In the instant case, a harmonious and beneficial interpretation of the statutory wording would certainly throw light on the fact that as per the mandate of Section 128 of Cr.P.C, an order passed under Section 125 or 127 Cr.P.C can be enforced by the court in any place, where the person against whom the order is made and at the same time the court passed the order also could very well execute the order irrespective of the fact that the person against whom the order is made has been residing in a place, outside the jurisdiction of the court, which passed the order," the court said. 

It thus set aside the impugned orders and directed the Family Court, Malappuram to receive the Execution Petitions filed by the petitioners, and proceed to enforce the orders in accordance with law. 

Advocate K.M. Sathyanatha Menon appeared on behalf of the petitioners in Crl.M.C. No. 6566/2022 while the respondents therein were represented by Advocates Sumodh Madhavan Nair and T.A. Prakash. Public Prosecutor C. Seena also appeared in the case.

The petitioner in O.P. (Crl.) No. 549/2022 was represented by Advocate K. Reeha Khader, while Advocates Prabhu K.N. and Manumon A. appeared on behalf of the respondents. 

Case Title: Aswathi & Anr. v. Rajeesh Raman & Anr. and Betty Philip v. William Chacko 

Citation: 2023 LiveLaw (Ker) 20 

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