CRL. REV. P. 614/2018

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Order: 17^th December 2021

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CRL.REV.P. 614/2018

ASHA DEVI & ORS

..... Petitioners

Through:

Ms.

Mallika

Parmar,

Advocate

(DHCLSC)

versus

MUNESHWAR SINGH @ MUNNA

..... Respondent

Through:

Mr. Kunal Malhotra and Mr. Ravinder

Gaur, Advocates

CORAM:

HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)

1. The instant petition under Section 397 read with Section 482 of the

Code of Criminal Procedure, 1973, (hereinafter “Cr.P.C.”) has been filed by

the petitioners seeking setting aside of the Order dated 28^th April, 2018,

passed by Family Court, Dwarka, New Delhi in Execution Petition No.

122/2017.

2. The Petitioner No.1 (hereinafter “the Petitioner”) and the Respondent

are wife and husband, while Petitioner no. 2 and 3 are the daughter and the

son, respectively, born out of their wedlock. The brief facts of the case

leading up to the present petition are summarized as under:

i)

Marriage between the concerned parties was solemnized on 12^th

July, 1988, and after a span of time, temperamental issues and

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marital differences arose between the parties, subsequent to

which, they started living separately since 2000.

ii)

Thereafter, the Petitioner filed Maintenance Petition under

Section 125 Cr.P.C. and vide Order dated 30^th August, 2005,

whereby the Respondent was directed to pay Rs. 1000/- per

month to the Petitioner No.1 and Rs. 500/- per month to

Petitioner No.2, 3 and the third daughter.

iii)

The Petitioner then moved the Court for execution of Order

dated 30^th August, 2005, which was withdrawn on account of the

settlement between the parties before the Mediation Centre,

Dwarka Courts, New Delhi. However, the Respondent did not

comply with the terms laid down in the settlement agreement

and hence the Petitioner filed another Execution Petition bearing

No. 122/2017 before the learned Family Court, Dwarka, New

Delhi for execution of order of maintenance.

iv)

The Respondent, in compliance of the maintenance order, was

paying certain amount, in pursuance of which the Petitioners

sought liberty from the learned Trial Court to amend/withdraw

and refile the Petition with the prayer of payment of arrears of

maintenance amount and warrants of attachment in case of

failure on part of the Respondent.

v)

The learned Trial Court passed the Impugned Order dated 28^th

April, 2018, whereby it noted that the Memo of Parties in the

Execution Petition indicated that the Respondent herein, resided

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at Bharti Nagar, District Shaharsa, Bihar and that the Petitioner

can seek execution of the Order of maintenance before the

Courts in Shaharsa, Bihar. Hence, the learned Trial Court

directed that a transfer certificate may be issued for execution

against the Respondent.

vi)

The Petitioner is before this Court seeking setting aside of the

said Order of the learned Trial Court.

3. Ms. Mallika Parmar, learned counsel appearing on behalf of the

Petitioners submitted that Section 125 of the Cr.P.C. lays down the power

with the Magistrate to order for monthly maintenance where they think fit.

Such power is available to every Magistrate, and it is at the option of the

person filing for maintenance who may decide where it may be filed. Under

Section 126 of the Cr.P.C., it is unequivocally stated that the proceedings

under Section 125 may be taken against any person in any district where he

is, where he or his wife resides, or where he last resided with his wife.

According, to this provision, the Petitioner was well within the mandate of

the Code, having proceeded against the Petitioner in Delhi, since, the

Respondent was in the jurisdiction of Delhi while the application for

maintenance was filed and adjudicated against him. Further, under Section

128