Point of law: Enforcement of the order of maintenance is provided under Section 128 of Cr.P.C., giving option to the wife to seek enforcement either in a place where the order was passed or in a place the respondent was residing.

JUDGMENT :

Order passed by Family Court, Malappuram (for short 'the court below') on 20.01.2021 in Crl.M.P.(Ex) No.144/2020 was assailed in the petition on hand by the petitioner in M.C. No.999/2011.

2. By an order passed in the M.C. on 11.04.2018, Family Court, Malappuram has directed the 2nd respondent to pay monthly maintenance allowance at the rate of Rs.3,500/-to the petitioner from the date of the petition. The 2nd respondent failed to pay the monthly maintenance allowance as directed. Therefore, Crl.M.P.(Ex) No.144/2020 seeking for enforcement of the order passed in the M.C was filed by the petitioner before Family Court, Malappuram, true copy of which is produced alongwith the petition on hand as Ext.P1. Ext.P1 was returned by the court below for presentation before the proper court stating that it has no jurisdiction to execute the order, true copy of which is produced alongwith the petition on hand as Ext.P2. Crl.M.P (Ex) Nos.194/2018 and 82/2018 filed by the petitioner seeking for execution of order were also dismissed. Crl.M.P. No.01/2021 filed by the petitioner to review the orders of dismissal as above was also dismissed, copy of which order is also produced alongwith the petition on hand as Ext.P3.

3. The court below heard on maintainability of the petitions seeking execution filed before it and upholding the argument of the learned counsel for the respondent and relying on the dictums in Vijay Kumar Prasad v. State of Bihar [2004 KHC 601] and Denny Antony and Another v. Marykutty Abraham [2007 KHC 5126] held that the execution petition is to be filed before the Family Court within whose jurisdiction the respondent is residing and therefore, returned it for presentation before the proper court. A petition seeking review was filed and the court below dismissed that also.

4. The relevant part of the impugned order being apposite reference is extracted hereunder:

“6. The mode of execution is issuing distress warrant for attachment and sale of the property of the respondent and on his failure by arrest and detention of respondent. The arrest and detention of the respondent is feasible only if the respondent is residing within the jurisdiction of the court executing the order. That is why it is provided in section 128 of the Cr.P.C that the order may be enforced by any Magistrate in any place where the person against whom it is made may be. The provision refers to the Magistrate having jurisdiction of the place of the respondent. This is the only provision which deals with execution of the order. Section makes it clear that the order is to be executed by the Magistrate within whose jurisdiction the respondent may be. The section doesn't say that it may be executed by the Magistrate who passed the order. The want of mention of the Magistrate which passed the order in Section 128 of the Cr.P.C will make it clear that only the Magistrate having jurisdiction over the place of the respondent can execute the order. The view that it can be executed either by the court which passed the order is not sustainable. It is well said that the words "may be” used in a statutory provision may mean "shall". In view of the omission in Section 128 of the Cr.P.C of the power of Magistrate which passed the order to execute the same, and the specific mention that it may be executed by the court within whose jurisdiction the respondent may be, it is apparently evident that section 128 of the Cr.P.C. confers jurisdiction for enforcement of the order only on the court within whose jurisdiction the respondent may be. The words "may be" appearing in the sentence "may be enforced by any Magistrate in any place where the person against whom it is made may be” is used in reference to various Magistrates within whose jurisdiction the respondent may be. It cannot be interpreted to mean that the order can be executed by the Magistrate who passed the order (even if respondent is not within his jurisdiction). In fact, s.128 of Code of Criminal Procedure ena