The Kerala High Court observed that while interpreting a provision, legislative intent and the impact of the provisions of laws are the decisive factors. Analyzing Section 128 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), the High Court noted that the word “shall” has been purposely avoided so that Family Courts could have the jurisdiction to pass an enforcement order. Harmoniously interpreting the section would show that the orders under Sections 125 and 127 of Cr. P.C. can be enforced in any Court irrespective of the fact that the Respondent resides outside the jurisdiction of the Court.
Brief Facts:
The primary issue to be ascertained in the present case was whether the Court passing the maintenance order under Section 125 of the Cr.P.C., the competency to execute the order against a person who resides outside the jurisdiction of the said Court.
Contentions of the Petitioners:
It was argued that the Learned Magistrate erred while returning the execution petition on the ground that it has to be executed where the Respondent resides.
It was submitted that Section 128 Cr.P.C. uses “may” which means that the Court’s power under Sections 125 and 127 of Cr.P.C. shall not cease in cases where the Respondent resides outside the jurisdiction of the Court.
Contentions of the Respondents:
It was contended that the word “may” in Section 128 Cr. P.C shall be interpreted as “shall” and hence, the execution of orders under Sections 125 and 127 of Cr. P.C. must only be done by the Court in whose territorial jurisdiction the Respondent resides.
Observations of the Court:
It was observed that if such a law is declared that every execution proceeding to enforce the maintenance order has to be at the place where the Respondent resides, then the consequences of the plight of wife, children, and parents would be unimaginable. Moreover, to defeat the enforcement order, the Respondent could very well shift outside the jurisdiction of the said Court.
It was noted that while interpreting a provision, legislative intent and the impact of the provisions of laws are the decisive factors. Analyzing Section 128 of Cr.P.C., the High Court noted that the word “shall” has been purposely avoided so that Family Courts could have the jurisdiction to pass an enforcement order. Harmoniously interpreting the section would show that the orders under Sections 125 and 127 of Cr. P.C. can be enforced in any Court irrespective of the fact that the Respondent resides outside the jurisdiction of the Court.
The decision of the Court:
Based on the abovementioned reasons, the Kerala High Court held that the Court passing a maintenance order does have the power to pass an execution order as well and accordingly, allowed the present petition.
Case Title: Aswathi & Anr. V. Rajeesh Raman & Anr. And Betty Philip v. William Chacko.M.
Coram: Hon’ble Mr. Justice A. Badharudeen
Case No: CRL.MC. No. 6566 of 2022 and OP(CRL) No. 549 of 2022
Advocate for Petitioners: Adv. K.M. Sathyanatha Menon, K. Reeha Khader
Advocates for Respondents: Ads. Smt. C. Seena (Public Prosecutor), Sumodh Madhavan Nair, Prabhu K.N., Manumon A.
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