One cannot seek transfer of execution proceeding under Section 125(3) CrPC to another Court once the order fixing maintenance attains finality: Supreme Court

Supreme Court: In a complex case where both the parties claimed to be disabled to get the matrimonial case transferred to the court of their convenience, V. Ramasubramanian, J., held that once the order fixing maintenance has attained finality, the petitioner cannot seek a transfer of the execution pending under Section 125(3) the CrPC to another Court.

In a collateral proceeding, the marriage between the parties had been dissolved by the Family Court and the petitioner-husband was directed to pay the maintenance to the respondent-wife under Section 125(1) CrPC. The said order has attained finality.

Later on, the respondent-wife approached the Family Court on the ground that the maintenance so fixed in the original order had not been. The petition for enforcement was taken up by the Family Court along with an application for modification of the maintenance, filed by the petitioner-husband.

The Family Court passed an order on 18-01-2019 directing the petitioner-husband to pay the entire arrears of maintenance within one month as a condition precedent for deciding the application for modification. Though the petitioner did not challenge the said order dated 18-01-2019, he has come up with the instant petition for transfer of the proceedings on the ground that he is suffering from bone cancer and that he is not in a position to undertake travel from Delhi to Nagpur, Maharashtra. The Petitioner also contended that he is wheelchair-bound and the Family Court in Nagpur is not disabled-friendly. The averments made by the petitioner were disputed by the respondent-wife. In contrast, she claimed to be suffering from a serious kidney disorder forcing her to undergo dialysis.

Considering the contentions of the parties, the Court said,

“The question as to whether the petitioner or the first respondent, who is more disabled has itself become a serious matter of challenge. It is not possible for this Court while dealing with a transfer Petition, to undertake a roving inquiry to find out who is more disabled.”

Noticing that the conditional order dated 18-01-2019 for taking up the application for modification has also not been complied with and a period of more than three years has passed, the Court opined that even if the transfer is ordered, as prayed for, the order dated 18-01-2019 will stare at the face of the petitioner.

Therefore, the Court concluded that however unfortunate the case may be on either side or on both sides, the petitioner did not deserve the indulgence of the Court for transfer. Therefore, the Transfer Petition was dismissed.

[Navneet Wadhwa V. Simran Wadhwa, 2022 SCC OnLine SC 1078, decided on 16-08-2022]


Advocates who appeared in this case :

AOR Krishan Kumar,and Advocates Vidur Kamra and Jyoti Taneja, Advocates , for the Petitioner;

Senior Advocate V. Mohana, Advocates Satyajit A. Desai, Devdeep, and AOR Anagha S. Desai, Advocates, for the Respondent(s).


*Kamini Sharma, Editorial Assistant has put this report together.

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