Delhi High Court: Chandra Dhari Singh, J., while addressed an issue with regard to maintenance and stated that,
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.
Instant petition was filed to set aside the order passed by the Family Court.
Petitioner 1 and respondent were wife and husband while petitioners 2 and 3 were the daughter and son respectively.
Petitioner had filed maintenance petition under Section 125 CrPC vide an order whereby the respondent was directed to pay Rs 1000 to the petitioner 1 and Rs 500 per month to petitioner 2, 3 and the third daughter.
Further, the petitioner moved the Court for the execution of the Order which withdrawn on account of the settlement between the parties before the Mediation Centre, Dwarka Courts. However, the respondent did not comply with the terms laid down in the settlement agreement and hence the petitioner filed another execution petition before the Family Court, Dwarka for the execution of the maintenance order.
Respondent in compliance with the maintenance order was paying a certain amount in pursuance of which the petitioners sought liberty from the trial court to amend/withdraw and refiled the petition with the prayer of payment of arrears of maintenance amount and warrants of attachment in case of failure on part of the respondent.
Trial Court passed the impugned order whereby it noted that Memo of Parties in the Execution Petition indicated that the respondent resided at Bharti Nagar, District Shaharsa, Bihar and that the petitioner can seek execution of the maintenance order before the Courts in Shaharsa, Bihar. Hence, the trial court directed that a transfer certificate may be issued for execution against the respondent.
Petitioner through the present petition has sought to set aside the said order of the trial court.
Analysis, Law and Decision
High Court expressed that from a bare reading of Section 126 read with Section 128 of the CrPC, it is apparent that a person may file for maintenance and have the proceedings initiated under Section 125 of the CrPC before the Magistrate concerned in any district where the husband is, where he or the wife resides or where they have last resided.
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.
Section 125(3) CrPC, empowers the Magistrate to issue a warrant for levying the amount due in the manner provided for levying fines, where there is default of payment in contravention of the orders of maintenance by the Magistrate. The same is guided by the provisions under Section 421 and 422 of the CrPC., which authorize the Court concerned to sell or attach a property even outside its jurisdiction.
In the present matter, it is evident that, if required, a property situated in Bihar, may be attached for the purposes of obtaining maintenance upon the order passed by the Courts in Delhi.
The Bench stated that as per the provisions under the CrPC and the findings of the Courts clear on the issue of jurisdiction in cases of maintenance under Section 125 of the CrPC.
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.
Supreme Court had even ruled that a judicial process may be enforced against a person even when he is in abroad.
In the present matter, while the Petitioner-wife may have approached the Courts concerned in Bihar, where the Respondent was alleged to have his permanent residence and the immovable property, simultaneously, her right to approach a Court in New Delhi also subsisted.
The rights of the Petitioners were 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.
Further, the Bench stated that the order of maintenance was passed in the year 2005 and now the trial court had after 16 years of the order and 4 years into the matter of execution taken up the issue of maintainability, despite the clear mandate of the CrPC.
Examining further, the Court added that 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.
In view of the above discussion, the petition was allowed.
Trial Court erred while giving its finding as the petitioner was well within her right under the law for having the maintenance order executed in her favour within the jurisdiction of Delhi.
The matter has been remanded back to the family court with direction for fresh adjudication of the execution petition. [Asha Devi v. Muneshwar Singh, 2021 SCC OnLine Del 5452, decided on 17-12-2021]
Advocates before the Court:
For the Petitioners: Mallika Parmar, Advocate (DHCLSC)
Fort Respondent: Kunal Malhotra and Ravinder Gaur, Advocates