Date of judgement:
17th December 2021
Bench:
Justice Chandra Dhari Singh
Parties:
Appellant – Asha Devi and Ors
Respondent – Muneshwar Singh
Subject
A petition was filed in the High Court for quashing the order passed by the Trial Court regarding maintenance. The appeal of the petitioner was subsequently allowed by the High Court under Section 125 of CrPC.
Legal Provisions
- Section 125 CrPC- order for maintenance of children, wife and parents.
- Section 126 CrPC- Procedure of proceeding under section 125 CrPC.
- Section 128 CrPC- enforcement of order of maintenance
- Section 125(3) CrPC- power of magistrate to sentence a person or issue a warrant
- Section 421 CrPC- Warrant fro levy of fine
- Section 422 CrPC- Effect of warrant
Overview
- The present petition was filed to quash the order passed by the Family Court.Petitioners 1, 2 and 3 were the wife, daughter and son of the respondent respectively.
- Under section 125 CrPC, a maintenance petition was filed by the petitioner after an order was passed where the respondent was directed to pay Rs 1000 to the petitioner and Rs 500 to the daughter and son each month.
- A settlement between both the parties took place in the Mediation Centre Dwarka Courts. But the respondent didn’t follow the order. Resultantly, an execution petition was filed by the petitioner in the Family Court of Dwarka.
- The respondent used to pay a certain amount in accordance with the maintenance order and so the petitioner asked permission from the Trial Court to amend/withdraw and refile the petition with the prayer of payment of maintenance arrears and warrants of attachment in the event of the respondent's failure.
- The Trial Court held that the petitioners could seek execution of maintenance order in Shaharsa Courts, which is in Bihar, as the respondent resided there.
- As a result, the Trial Court ordered that a transfer certificate be issued against the respondent for execution.
- Aggrieved by the order of the Trial Court, the present petition was filed by the petitioners pleading the High Court to set aside the order of the Trial Court.
Judgment Analysis
- The High Court stated that based on a simple reading of Section 126 along with Section 128 of the CrPC, it can be established that a person may file for maintenance and have 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.
- Where there is a default of payment in breach of the Magistrate's orders of maintenance, Section 125(3) CrPC allows the Magistrate to issue a warrant for levying the amount due in the manner provided for levying penalties. The provisions of Sections 421 and 422 of the CrPC, which allow a Court to sell or attach property even if it is not within its jurisdiction, influenced this decision.
- Despite the explicit mandate of the CrPC, the Trial Court had brought up the question of maintainability 16 years after the order and 4 years into the subject of execution.
- Further, the Court stated that it was sad that a lady and her children had to go from pillar to post in order to obtain the rights to which they were entitled under the law.
- The petition was granted in light of the foregoing arguments.The Trial Court made an error in its decision since the petitioner was well within her legal rights to have the maintenance order enforced in her favor within Delhi's jurisdiction.
- The case was remanded to the Family Court with instructions to hear the execution petition again.
Conclusion
Section 125 CrPC offers the individual seeking maintenance a lot of leeway in terms of where he or she can petition for it and when it can be executed.In the instant case, it was clear that, if necessary, a property in Bihar might be taken for the purpose of recovering maintenance under a Court order issued in Delhi.
The Bench said that the provisions of the CrPC and the Courts' rulings on the issue of jurisdiction in maintenance matters under Section 125 of the CrPC are unambiguous. While the petitioner-wife may have sought relief from the Courts in Bihar, where the Respondent was believed to hold his permanent abode and immovable property, she also had the right to seek relief from a Court in New Delhi.Since the respondent used to reside in Delhi at the time of the application, the petitioners' rights were in accordance with the law.
