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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Aswathi, d/o. Vijaya narayanan – Appellant
Versus
Rajeesh Raman, Son Of Raman – Respondent
Crl.M.C.No.6566 of 2022 and O.P(Crl).No.549 of 2022
Decided on : 10-01-2023
Constitution of India, 1950 – Article 32 -Criminal Procedure Code, 1973 - Section 125, 127, 482, 128 - Family Courts Act, 1984 - Section 18, 18(3), 20 - Probation of Offenders Act, 1958 - Section 6(1), 11(1) - Land Acquisition Act, 1894 - Section 4(1), 6(1), 6(2) - Immoral Traffic in Women and Girls Act, 1956 - Section 18, 3, 7 –Enforcement of order of maintenance - Execution of decrees and orders -Order for maintenance of wives, children and parents - Closure of brothel and eviction of offenders from the premises -Whether a Court, which passed an order of maintenance under Section 125 and 127 of Code of Criminal Procedure, is competent to execute order against a person, who has been residing in a place outside jurisdiction of Court, which passed order – It is necessary in interests of justice to visualise plight of poor wife and children or parents, as case may be, if a view taken to effect that each and every execution proceedings to enforce order of maintenance obtained by wife, children and parents at place where person against whom order was made - Para 14.
Finding of the Court: Court held that in certain cases word ' shall' has to be read as 'may' - No doubt, while interpreting a provision of law, legislative intent and impact of provision of laws are decisive factors - But statute vigilantly avoided word ' shall', deemed to be with intention to retain jurisdiction of Family Court, which passed order also in matter of enforcement of order - In said decision, Court considered an execution petition filed before court passed order and matter considered was whether court which passed order had jurisdiction to execute order outside territory of India - Court passed order also retains power to execute order, outside jurisdiction where respondent has been residing - Accordingly, orders impugned shall stand set aside - Family Court, is directed to receive respective Execution Petition filed by petitioners, where impugned orders were passed, and proceed to enforce respective orders, in accordance with law.
Result: Petitions allowed.
ORDER :
The legal question emerges in these matters is, whether a Court, which passed an order of maintenance under Section 125 and 127 of the Code of Criminal Procedure, is competent to execute the order against a person, who has been residing in a place outside the jurisdiction of the Court, which passed the order?
2. Crl.M.C.No.6566 of 2022 has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for short) challenging Annexure-A3 order of the Family Court, Malappuram. As per Annexure-A3 order dated 16.08.2022 in the form of an endorsement in an unnumbered CMP (Execution)/2022 in M.C.No.64/2019, the Family Court returned the execution petition with the following endorsement:
3. In O.P(Crl.).No.549 of 2022, similarly the Family Court, Malappuram returned CMP (Execution)/2022 in M.C.No.392/2016 for the same reason.
4. Heard the learned respective counsel for the petitioners as well as the learned counsel appearing for the respondents and the learned Public Prosecutor.
5. It is argued by Advocate K.M.Sathyanatha Menon appearing for the petitioner in Crl.M.C.No.6566 of 2022 that the learned Magistrate went wrong in passing an order returning the execution petition on the ground that the order has to be executed at the place of residence of the respondent. According to the learned counsel, as per Section 128 of Cr.P.C, the word used is `may' and, therefore, the power of the Court to execute an order passed under Section 125 and 127 of Cr.P.C shall not cease in cases where the respondent has been residing outside the jurisdiction of the court. The learned counsel placed an unreported decision of the Delhi High Court dated 17.12.2021 in Crl.R.P.No.614/2018, Asha Devi & Ors. v. Muneshwar Singh @ Munna, to substantiate the said point. It is argued by the learned counsel Sri Sathyanatha Menon further that in the said decision, the Delhi High Court took the view that an order passed by the Family Court can be executed against a respondent, who is residing outside the jurisdiction of the Court.
6. Sri Sathyanatha Menon has placed a Division Bench decision of this Court reported in [2021 (1) KLJ 843], Anoop Vijay v. Arunima P.T, where this Court dealt with Section 18 of the Family Courts Act also in support of his contention. In this decision, this Court held that when we appreciate Section 18 of the Act, it can be understood that though the manner of executing the decree of a Family Court, is as prescribed in the CPC, the court that has to execute the decree or order is primarily the Family Court which passed the decree or order. The “other Family Court or ordinary civil court to which it is sent for execution” is secondary in nature. It arises only after an application by the decree holder to send the decree for execution is made and the Family Court which passed the decree or order, directs sending of the decree for execution to the other Court. The words “ by the other Family Court or ordinary civil court” in Section 18(3) of the Act is controlled and guided by the words “ to which it is sent for execution”. If it is not sent, undoubtedly the jurisdiction to execute the decree will continue to vest or remain with the Family Court that passed the decree or order. Such an interpretation arises on account of the overriding effect of the Family Courts Act in Section 20 and also due to the necessity of having certainty of laws. If the court of execution is a fluctuating one, depending on wherever the judgment debtor resides, an unscrupulous judgment debtor could easily circumvent or delay execution by repeatedly shifting his place of residence.
7. Whereas Advocate K.N.Prabhu, who appeared for the respondent in O.P(Crl).No.549/2022, raised a specific contention that sinc
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