Top Stories News Updates Columns Interviews Foreign/International RT

Home > News Updates > Maintenance Order U/S 125 ...

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
It is immaterial where he is residing or where his permanent property is,
the Court said.

By - Nupur Thapliyal Update: 2021- 12- 22 10:30 GMT

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.

PRICE DROP

EORS Sale Is Live Now

Myntra

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."

PRICE DROP

EORS Sale Is Live Now

Myntra

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.

PRICE DROP

EORS Sale Is Live Now

Myntra

Since the Petition initially moved in 2005 was withdrawn on account of the settlement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

Click Here To Read Order 

Tags:    

Delhi High Court    Preferred Jurisdiction    Application For Maintenance   

Sec. 125 CrPC    Execution    Justice Chandra Dhari Singh   

 EORS Sale Is Live Now
Myntra

0 Comments Sort by Newest

Add a comment...

Facebook Comments Plugin

Karnataka High Court Directs Govt To Immediately Notify 'Live Streaming &
Recording Of Court Proceedings Rules'

Bombay High Court Turns Down Plea By 8 Bhima Koregaon Accused For
Factual Corrections In Order Denying Bail

WB Municipal Polls : State Election Commission Submits Election Schedule To

Calcutta High Court

Mere Refusal To Marry After Sexual Relations Not Offence of Cheating : Bombay
High Court

Karnataka High Court Dismisses Petitions Challenging KSLU Semester Exams

For LL B 5 Year Course
 For LL.B 5 Year Course

"Pending Contempt References Against Advocates Demoralize Judicial Officers":

Allahabad High Court Bats For Their Expeditious Disposal

'Busybodies Feel They Can Comment Anything In Social Media' : Kerala High
Court Directs Registry To Act Against Ex-Judge's FB Posts

Fake Antique Dealer: Kerala High Court Finds No Reason To Suspect Foul Play In
Ongoing Investigation

'Law Secretary Can't Discharge Quasi-Judicial Functions' : HP High Court

Directs State To Constitute State Transport Appellate Tribunal Within A
Month

Blast Rocks Ludhiana Court Complex; 2 Dead, Several Feared Injured

Child Visitation Rights Of Muslim Man Diminishes On Espousing Second Wife

During Subsistence Of First Marriage: Karnataka High Court

"CBI Seems To Have Left The Horse Pulling The Cart": Delhi Court Directs
Investigation Against Anil Deshmukh In Document Leak Case

Similar News

Karnataka High Court Directs Govt To Immediately

Notify 'Live Streaming & Recording Of Court
Proceedings Rules'
2021-12-23 11:36 GMT
Bombay High Court Turns Down Plea By 8 Bhima
Koregaon Accused For Factual Corrections In Order
Denying Bail
2021-12-23 10:52 GMT

WB Municipal Polls : State Election Commission

Submits Election Schedule To Calcutta High Court
2021-12-23 10:47 GMT

Mere Refusal To Marry After Sexual Relations Not

Offence of Cheating : Bombay High Court
2021-12-23 09:58 GMT

Karnataka High Court Dismisses Petitions

Challenging KSLU Semester Exams For LL.B 5 Year
Course
2021-12-23 09:40 GMT

"Pending Contempt References Against Advocates

Demoralize Judicial Officers": Allahabad High Court
Bats For Their Expeditious Disposal
2021-12-23 09:21 GMT

'Busybodies Feel They Can Comment Anything In

Social Media' : Kerala High Court Directs Registry To
Act Against Ex-Judge's FB Posts
2021-12-23 09:09 GMT
 Fake Antique Dealer: Kerala High Court Finds No
Reason To Suspect Foul Play In Ongoing Investigation
2021-12-23 08:36 GMT

'Law Secretary Can't Discharge Quasi-Judicial

Functions' : HP High Court Directs State To Constitute
State Transport Appellate Tribunal Within A Month
2021-12-23 08:13 GMT

Blast Rocks Ludhiana Court Complex; 2 Dead, Several

Feared Injured
2021-12-23 07:40 GMT

Child Visitation Rights Of Muslim Man Diminishes On

Espousing Second Wife During Subsistence Of First
Marriage: Karnataka High Court
2021-12-23 07:34 GMT

"CBI Seems To Have Left The Horse Pulling The Cart":

Delhi Court Directs Investigation Against Anil
Deshmukh In Document Leak Case
2021-12-23 07:13 GMT

Follow:  

Copyright @2020 Powered by Hocalwire