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2022 DIGILAW 857 (HP)

Onkar Sharma v. State of Himachal Pradesh

2022-12-20

AJAY MOHAN GOEL

body2022
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner has assailed the order passed by learned Principal Judge, Family Court, Bilaspur, H.P., dated 25.03.2021, which reads as under:­ “It is stated by the respondent present in the Court that he is getting pension of Rs.14,000/­ per month, as he retired from Army in the year 2019. Keeping in view the facts and circumstances of the case and in view of the averments made by the respondent in the reply, the Court is of the opinion that Rs.2,000/­ per month is sufficient as interim maintenance to the petitioner. Hence, he petitioner is awarded with interim maintenance to the tune of Rs.2,000/­ per month from February, 2019 onwards. The application for interim maintenance disposed of accordingly. Papers of this application be tagged with main petition after due completion.” 2. Brief facts necessary for the adjudication of the present petition are that an application has been preferred under Section 125 of the Criminal Procedure Code, by the respondent against the petitioner, for grant of maintenance allowance. The respondent/applicant is father of the petitioner. During the pendency of the application under Section 125 of the Cr.P.C., in terms of the impugned order, learned Court below has awarded an amount of Rs.2,000/­ per month from February, 2019 onwards as interim maintenance in favour of father in view of the fact that the income of the son was Rs.14,000/­ per month in terms of the pension being received by him. 3. Learned counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law as while passing the impugned order, learned Court below has erred in ignoring the mandate as has been laid down by Hon’ble Supreme Court of India in Rajneesh Versus Neha and another, (2021) 2 Supreme Court Cases 324, in terms whereof, before the payment of interim maintenance, the affidavits of disclosure of Assets and Liabilities have to be mandatorily filed by both the parties in all the maintenance proceedings inconsonance with the enclosures I, II and III of the judgment. Learned counsel argued that the judgment of Hon’ble Supreme Court was pronounced on 04.11.2020. Learned counsel argued that the judgment of Hon’ble Supreme Court was pronounced on 04.11.2020. In terms of para­134 of the same, Hon’ble Supreme Court had directed the Secretary General of Supreme Court of India to communicate the judgment to the Registrars of all the High Courts, who in turn were directed to circulate the judgments to all the District Courts in the States and it was further ordered that the judgment shall be displayed on the Website of all the District Courts/Family Courts/Courts of Judicial Magistrate for awareness and implementation. Learned counsel has submitted that the impugned order having been passed on 25.03.2021 ought to have had complied with the judgment of Hon’ble supreme Court and no interim maintenance could have been awarded without calling upon the parties to submit the affidavits of Disclosure of Assets and Liabilities and as in the present case, learned Family Court failed to adhere to the said principles laid down by Hon’ble Supreme Court, therefore, the impugned order is bad and liable to be set aside. 4. Learned counsel for the respondents has submitted that taking into consideration the fact that only an amount of Rs.2,000/­ has been awarded by learned Court below as interim maintenance to the father, who presently happens to be around seventy two years old, the order calls for no interference, as the petitioner has failed to display as to how any prejudice has been caused to him by the non filing of the affidavits of Disclosure of Assets and Liabilities, because it is not the case of the petitioner herein that the father was having sufficient means to maintain himself. Accordingly, he prayed that the present petition be dismissed. 5. In rebuttal, learned counsel for the petitioner has submitted that prejudice indeed has been caused to the petitioner, because the petitioner had disclosed before learned Family Court the assets of his father which were not taken into consideration by learned Court below nor was the law laid down by Hon’ble Supreme Court. 6. I have heard learned counsel for the parties and have gone through the impugned order. 7. Hon’ble Supreme Court of India in Rajneesh Versus Neha and another (supra) has been pleased to lay down complete Guidelines with regard to the adjudication of the maintenance applications. 6. I have heard learned counsel for the parties and have gone through the impugned order. 7. Hon’ble Supreme Court of India in Rajneesh Versus Neha and another (supra) has been pleased to lay down complete Guidelines with regard to the adjudication of the maintenance applications. As has been rightly pointed out by learned counsel for the petitioner, in para­129 of the judgment, Hon’ble Supreme Court has been pleased to hold that with regard to payment of interim maintenance, affidavits of Disclosure of Assets and Liabilities annexed as Annexures I, II and III alongwith the judgment as may be applicable, shall be filed by both the parties in all maintenance proceedings including pending proceedings before the Courts mentioned therein. It appears that while passing the order with regard to the grant of interim maintenance, learned Court below has not adhered to the said directions issued by Hon’ble Supreme Court of India. The directions being mandatory, the Courts are bound to both adhere to them as well as implement them. Any dereliction in this regard by the Courts concerned, obviously does violence to the judgment passed by Hon’ble Supreme Court both in letter as well as spirit. 8. This Court is of the considered view that the judgment of Hon’ble Supreme Court should again be brought into the notice of all the Districts Courts/Family Courts/Courts of Judicial Magistrate in the State of Himachal Pradesh, so that the same can be implemented in letter and spirit and accordingly, learned Registrar General of the High Court of Himachal Pradesh is instructed to ensure that the judgment is again communicated to all the District Courts in the State, with further direction to learned District Judges to circulate the copies thereof to learned Family Courts as also the Courts of learned Judicial Magistrate, both for awareness as well as implementation. In addition, the same be also displayed on the website of all the District Courts/ Family Courts/ Courts of Judicial Magistrate for awareness as also implementation. All the learned Courts concerned to ensure that compliance of the judgment of the Hon’ble Court is reflected in the order/ judgment and the order/ judgment has to be a reasoned and speaking order. 9. All the learned Courts concerned to ensure that compliance of the judgment of the Hon’ble Court is reflected in the order/ judgment and the order/ judgment has to be a reasoned and speaking order. 9. Coming to the facts of present case, as it has not been disputed during the course of arguments that the petitioner who happens to be the son of the respondent, is getting pension of Rs.14,000/­ per month and further, as a measure of interim maintenance, only an amount of Rs.2,000/­ has been awarded by learned Court below in favour of the aged father, this Court is not interfering with the order passed by learned Court below, but it is ordered that while deciding the application filed under Section 125 of the Criminal Procedure Code finally, the principles laid down by Hon’ble Supreme Court in Rajneesh Versus Neha and another (supra) shall be adhered to by learned Court below in letter and spirit. 10. Petition stands disposed of in above terms. Pending miscellaneous applications, if any, also stand disposed of.