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Punjab High Court · body

2023 DIGILAW 1918 (PNJ)

Gurmeet Kaur v. Simranjit Singh

2023-05-31

TRIBHUVAN DAHIYA

body2023
Judgment Mr. Tribhuvan Dahiya, J. This petition has been filed for setting aside the order dated 18.08.2021 (Annexure P-6) passed by the Family Court, Ludhiana, camp at Samrala, in maintenance application under Section 125 Cr.P.C. instituted by the petitioners, who are wife and minor daughter of the respondent, wherein wife’s application seeking exemption from filing the affidavit of ‘assets and liabilities’ has been dismissed. Background 2. Briefly, the facts apparent on record are: (i) The petitioners filed an application claiming maintenance under Section 125 Cr.P.C. before the Family Court on 29.08.2012. During pendency of the proceedings, the Family Court vide order dated 20.05.2013 granted interim maintenance of Rs. 3,000 per month to each of the petitioners. The amount of interim maintenance granted to the petitioner/wife was to be adjusted against monthly maintenance of Rs. 15,000 granted to her under the Protection of Women from Domestic Violence Act, 2005, by the Magistrate in February, 2016. (ii) Thereafter, the petitioners concluded their evidence in the case on 18.12.2019, and it was adjourned for evidence of the respondent/husband. He was examined-in-chief on 08.01.2020; his cross-examination was deferred on the request of learned counsel for the petitioners to 15.01.2020, the date fixed for remaining evidence of the respondent at his own responsibility. (iii) The petitioner, instead of conducting the cross-examination filed an application seeking directions to the respondent to file a detailed affidavit with regard to his income and assets. The application was replied to by the respondent and was finally allowed by the Family Court vide order dated 26.02.2020, directing him to file a detailed affidavit of his sources of income and assets as per directions contained in the judgment of this Court in Jaspreet Singh v. Gurleen Kaur, 2020(1) R.C.R. (Criminal) 646. (iv) In compliance thereof, the said affidavit was filed by the respondent on 10.03.2021. However, before doing that, he filed an application dated 04.03.2020 for issuing appropriate direction to the petitioner/wife to file a detailed affidavit of her income and assets also as per judgment in Jaspreet Singh case (supra). Instead of filing the affidavit, she sought to be dispensed with the requirement of filing the affidavit in terms of the judgment, by filing an application dated 24.03.2021 (Annexure P-7) to that effect. She claimed to be not having any moveable or immovable property, except the amount of maintenance being paid to her. Instead of filing the affidavit, she sought to be dispensed with the requirement of filing the affidavit in terms of the judgment, by filing an application dated 24.03.2021 (Annexure P-7) to that effect. She claimed to be not having any moveable or immovable property, except the amount of maintenance being paid to her. She also claimed to be belonging to Economically Weaker Section (EWS) of society, and therefore, was not required to file the affidavit disclosing her assets and liabilities (for short ‘the Affidavit of Disclosure’) in terms of the Supreme Court judgment in Rajnesh v. Neha and another, 2021(2) SCC 324 . Her EWS Certificate dated 19.03.2021 issued by Department of Social Justice, Empowerment and Minorities, Government of Punjab for the financial year 2020-2021 has been placed on record as Annexure P-9. The subsequent certificate dated 11.10.2022 issued by the same Department for the financial year 2022-23 is also placed on record as Annexure P-11. (v) The application was contested by the respondent/husband by filing reply dated 02.06.2021 (Annexure P-8) stating that the petitioner/wife did not belong to EWS of the society, and she applied for the certificate only on 19.03.2021, when requirement of filing of affidavit before this Court arose. It was also stated that the certificate was obtained by withholding true facts as per parents possess immoveable properties including shops No.1295, 1296, 1297, 1298 and House No. 1299, situated at Mian Mohalla Machhiwara Sahib. 3. The Family Court vide impugned order dated 18.08.2021 (Annexure P-6) dismissed the petitioner/wife’s application by holding that she could not be exempted from filing the affidavit of her income and assets, since it was on her application only that the respondent/husband was directed to file such an affidavit, and had filed it too. Equity demands that she should also file the affidavit disclosing her income and property as per judgment in Jaspreet Singh case (supra). The case was then adjourned to 01.09.2021 for filing a detailed affidavit regarding her sources of income and property, if any, and for clearing the arrears of maintenance by respondent/husband, and thereafter, for conducting his cross-examination. Submissions 4. Learned counsel for the petitioners contends that in terms of the guidelines 72.9.(i) in the judgment passed in Rajnesh case (supra), the petitioner/wife is not required to file Affidavit of Disclosure as she belongs to EWS category. Submissions 4. Learned counsel for the petitioners contends that in terms of the guidelines 72.9.(i) in the judgment passed in Rajnesh case (supra), the petitioner/wife is not required to file Affidavit of Disclosure as she belongs to EWS category. The fact is apparent from the EWS Certificates dated 19.03.2021 and 11.10.2022, attached to the petition. He has further submitted that respondent’s evidence is going on before the Family Court, and he has the opportunity to prove that the petitioner does not belong to EWS category. In case it is so proved, she can then be directed to file the affidavit. 5. Learned counsel for the respondent, however, contents that neither the petitioner/wife belongs to EWS, nor can she be dispose with the requirement of filing the Affidavit of Disclosure for deciding the maintenance application filing by her. The respondent has already filed the Affidavit, therefore, she cannot seek exemption in equity also. Besides, filing of the Affidavit by her will bring true facts on record, and facilitate proper adjudication of the case. The certificates of EWS, placed on record by the petitioner/wife, have been issued only for claiming reservation in direct recruitment in civil posts and services of Government of India/Government of Punjab and admission in educational institutions of Government of India, as per office memorandum dated 31.01.2019 (Annexure P-10). It has nothing to do with the requirement of filing affidavit of assets and liabilities by the parties in proceedings claiming maintenance from a spouse. It is also submitted that the certificates have been issued on the basis of self-declaration by the petitioner/wife, as mentioned in these certificates itself. Therefore, the same cannot be the basis to exempt her for filing her affidavit before the Family Court. In support of the submissions, learned counsel has referred to the judgment of this Court in Jaspreet Singh case (supra), which lays down in one of the prescribed guidelines 22(iv) that “in exceptional cases, the Court may also dispose with the aforesaid requirement of furnishing affidavits especially in cases where the parties belong to the lowest strata of society and are absolutely not likely to be possessed of the sources detailed in the form or where the Court is of the opinion that directing the party to furnish such affidavit would cause unnecessary inconvenience to the party and is not likely be render any fruitful purpose.” 6. Learned counsel for the parties have been heard and the case file has been perused. Analysis 7. In Rajnesh case (supra), the Supreme Court framed guidelines inter alia on the issue of deciding applications for maintenance under provisions of the Special Marriage Act, 1954, Section 125 of the Code of Criminal Procedure, 1973, Protection of Women from Domestic Violence Act, 2005 and the Hindu Marriage Act, 1995. While framing the guidelines, it was felt that the litigating parties should be required to file their Affidavits of Disclosure before the Court concerned to facilitate early disposal of maintenance applications. Before issuing the guidelines, the Supreme Court considered judgments on the subject by different High Courts including the ones by the Delhi Court in Kusum Sharma I to V cases, which had considered the judgment rendered by this Court in Jaspreet Singh case (supra). As on date, the final enunciation of law of subject is by the judgment in Rajnesh case (supra). The guidelines laid down therein were made applicable to all the pending proceedings also. Formats of the Affidavits of Disclosure were also given with the judgment. These guidelines, framed by the Court in exercise of its powers under Article 136 read with Article 142 of the Constitution of India, read as under: 72.1.(a) The affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of the judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrate’s Court concerned, as the case may be, throughout the country; 72.2.(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets. 72.3(c) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the affidavit, and seeks more than two adjournments for this purpose, the court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings. If the respondent delays in filing the reply with the affidavit, and seeks more than two adjournments for this purpose, the court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings. On the failure to file the affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record. 72.4.(d) The above format may be modified by the court concerned, if the exigencies of a case require the same. It would be left to the judicial discretion of the court concerned to issue necessary directions in this regard. 72.5.(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the court concerned may pass appropriate orders in respect thereof. 72.6(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the court to serve interrogatories, and seek production of relevant documents from the opposite party under Order 11 CPC. On filing of the affidavit, the court may invoke the provisions of Order 10 CPC or Section 165 of the Evidence Act, 1872, if it considers it necessary to do so. The income of one party is often not within the knowledge of the other spouse. The court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.” 72.7(g) If during the courts of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended/supplementary affidavit, which would be considered by the court at the time of final determination. 72.8.(h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings, if false statements and misrepresentations are made, the court may consider initiation of proceeding under Section 340 Cr.P.C., and for contempt of court. 72.9.(i) In case the parties belong to the economically weaker sections (“EWS”), or are living below the poverty line (“BPL”), or are casual labourers, the requirement of filing the affidavit would be disposed with. 72.9.(i) In case the parties belong to the economically weaker sections (“EWS”), or are living below the poverty line (“BPL”), or are casual labourers, the requirement of filing the affidavit would be disposed with. 72.10.(j) The Family Court/District Court/Magistrate’s Court concerned must make an endeavour to decide the IA for interim maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court. 72.11.(k) A professional Marriage Counsellor must be made available in every Family Court. 8. The guidelines contained in paragraph 72.9.(i) provide, in case parties belong to Economically Weaker Section (EWS), or are living Below Poverty Line (BPL), or are casual labourers, the requirement of filing the Affidavit of Disclosure would be dispensed with. The petitioner/wife herein wants to take benefit of this exclusion in seeking exemption from filing the Affidavit. Income and Asset Certificates for the financial years 2020-21 and 2022-23 certifying that the petitioner belongs to Economically Weaker Section (for short, ‘the EWS Certificates’) relied upon by her, have been issued by the Department of Social Justice, Empowerment and Minorities, Government of Punjab, as per the office memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, dated 31.01.2019. Relevant part of the EWS certificates reads as under: Income of Asset Certificate (For EWS for appointment in civil posts and services in the Govt. of India/Govt. of Punjab and admission in education institutes of Govt. of India) Certificate No. LDH/IAC/2022/N/41560054 Issuance Date 11/10/2022 Valid for financial year 2022-23 This is to certified that Smt. Gurmeet Kaur W/o Simaranjit Singh resident of H.No.1533 W.No.10 Near Gurdwara Ravidas Mian Mohalla Machhiwara, Sub Tehsil Machhiwara, Ludhiana Post Office Machhiwara District Ludhiana in the State of Punjab, Pincod 141115 whose photograph is above belongs to Economically Weaker Sections since the gross annual income of his/her family is below Rs.8.00 lakh (Rupees Eight Lakh only) for the financial year 2021 to 2022. His/her family does not own or possess any of the following assets: i.    5 acres of agriculture land and above. ii. Residential flat of 1000 sq. ft. and above. iii. Residential plot of 100 sq. yards and above in notified municipalities. iv. Residential plot of 200 sq. yards and above in areas other than the notified municipalities. 2. His/her family does not own or possess any of the following assets: i.    5 acres of agriculture land and above. ii. Residential flat of 1000 sq. ft. and above. iii. Residential plot of 100 sq. yards and above in notified municipalities. iv. Residential plot of 200 sq. yards and above in areas other than the notified municipalities. 2. Smt. Gurmeet Kaur belongs to the ARORA caste/class which is not recognized as a Scheduled Caste, Scheduled Tribe and Other Backward Classes (Central List). 3. This certificate is being issued on the basis of the Self Declaration by the Applicant. Digitally Signed by Maninder Singh Designation Naib Tehsildar Location Sub Tehsil, Machhiwara, Ludhiana Date and Timing of signing 11/10/2022 12.29 p.m. 9. The office memorandum dated 31.01.2019, based upon which the EWS certificates have been issued to the petitioner, is for providing reservation to EWS not covered under the reservation scheme for Scheduled Castes(SCs)/Scheduled Tribes (STs)/Other Backward Classes (OBCs) for direct recruitment in civil posts and services in the Government of India. Further, as per the memorandum, to claim benefit of reservation under EWS category, a candidate is required to provide the income and assets certificate issued by the competent authority in the format prescribed therein, which shall be accepted as proof of the candidate belonging to this category Paragraph 4.1 of the office memorandum provides that a person whose family’s gross annual income is below Rs.8 lakh, is to be identified as EWS for the benefit of reservation. This income shall also include income from all sources, i.e., salary, agriculture, business, profession, etc. for the financial year prior to the year of applying for the EWS certificate; and the family must not possess any of the immovable properties/assets mentioned therein. Paragraph 4.3 defines family to include the person seeking benefit of reservation, his/her parents and minor siblings, as also spouse and minor children. Paragraph 5.4 provides that the appointing authority should offer appointment to the candidates belonging to EWS category provisionally, subject to verification of the income and asset certificate through proper channels. If the verification reveals that the candidate’s claim of belonging to EWS category is fake/false, his/her services would be terminated forthwith without assigning any reason. The relevant paragraphs of the memorandum read as under: 4. If the verification reveals that the candidate’s claim of belonging to EWS category is fake/false, his/her services would be terminated forthwith without assigning any reason. The relevant paragraphs of the memorandum read as under: 4. Criteria of Income & Assets: 4.1 Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has gross annual income below Rs.8.00 lakh (Rupees eight lakh only) are to be identified as EWSs for benefit of reservation, Income shall also include Income from all sources, i.e., salary, agriculture, business, profession, etc. for the financial year prior to the year of application. Also persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income: i. 5 acres of agricultural land and above, ii. Residential flat of 1000 sq.ft. and above; iii. Residential plot of 100 sq. yards and above in notified municipalities; iv. Residential plot of 200 sq. yards and above in areas other than the notified municipalities. 4.2. xxx xxx xxx xxx 4.3 The term “Family” for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years. 5. Income and Asset Certificate Issuing Authority and Verification of Certificate: 5.1 to 5.3. xxx xxx xxx xxx 5.4. The appointing authorities should, in the offer of appointment to the candidates claiming to be belonging to EWS, include the following clauses: “The appointment is provisional and is subject to the income and asset certificate being verified through the proper channels and if the verification reveals that the claim to belong to EWS is fake/false the services will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of the Indian Penal Code for production of fake/false certificate.” The appointing authority should verify the veracity of the income and asset certificate submitted by the candidate through the certificate issuing authority. 10. Apparently, the EWS certificates issued to the petitioner are based on her self-declaration. The certificates have been issued for the financial years 2020-21 and 2022-23, only for claiming reservation in direct recruitment in civil posts and services in the Government of India. 10. Apparently, the EWS certificates issued to the petitioner are based on her self-declaration. The certificates have been issued for the financial years 2020-21 and 2022-23, only for claiming reservation in direct recruitment in civil posts and services in the Government of India. Any appointment issued on the certificates shall itself be provisional in nature, and will be subject to their being verified through proper channels to establish her claim of belonging to the EWS category. Whereas, the Affidavit of Disclosure that the parties are required to file before the Court in a maintenance application in terms of para 72.1.(a) of the guidelines in Rajnesh case (supra), does not concern job requirement of any of the parties. It is to ensure disclosure of income, assets and other liabilities of the parties for facilitating prompt adjudication of the maintenance application, and determining the quantum of maintenance/interim maintenance payable to the applicant. Only the ‘parties’ belonging to the EWS category, or the ones who are living Below Poverty Line, or are casual labourers, are exempted from filing the Affidavit of Disclosure in terms of para 72.9(i) of the guidelines. Merely because the petitioner claims to have acquired the EWS certificates issued by the State Government, it does not entitle her to claim exemption from filing the Affidavit. The EWS certificate, on the basis of which the petitioner is seeking exemption from filing the Affidavit of Disclosure in her maintenance application, is alien to the issue raised in the application itself, as also to the grounds on which filing of the Affidavit is required or seeking exemption therefrom can be considered. There is no semblance of equality between the ‘parties’ belonging to EWS category referred to in the guidelines, who are exempted from filing the Affidavit, and the ‘persons’ who are issued EWS certificate based on the criteria laid down in the office memorandum dated 31.01.2019. The two are distinct and unrelated. The categories they belong to may have similarity in nomenclature, but in reality the two are meant for different purposes and save different ends, as discussed hereinabove. 11. Besides, the EWS certificates issued by the government concerned, itself inter alia require gross annual income of the applicant’s ‘family’ to be below Rs. 8 lakh. And ‘family’ includes the candidate’s parents as well as spouse, siblings and children below eighteen years of age. 11. Besides, the EWS certificates issued by the government concerned, itself inter alia require gross annual income of the applicant’s ‘family’ to be below Rs. 8 lakh. And ‘family’ includes the candidate’s parents as well as spouse, siblings and children below eighteen years of age. It is, therefore, based upon the ‘family income’ as against the ‘individual income’, which is the sole concern of a Court deciding maintenance application filed by a party. Whereas, the Affidavit of Disclosure in terms of guidelines 72.1.(a) is required to be filed by the parties for disclosing their income and liabilities. A party in the maintenance application may or may not belong to a family whose gross annual income is below Rs.8 lakh. Prime concern of a Court in deciding the maintenance application is to ascertain the applicant’s own assets and liabilities, income from different sources, number of dependants, etc. Keeping that in view, guidelines in Rajnesh case (supra) were issued. Paragraph 72.9.(i) of the guidelines specifically provides, the ‘parties’ who belong to EWS category, or are living Below Poverty Line, or are casual labourers, are dispensed with the requirement of filing the Affidavit of Disclosure. The exemption granted from filing the Affidavit, as per guideline 72.9.(i) is to be read with the requirement of filing the Affidavit as per guideline 79.1.(a); the former cannot be read in isolation. Both the guidelines clearly require the ‘parties’ to file or seek exemption from filing the Affidavit. The exemption, therefore, is meant for the ‘parties’ concerned, and only when they themselves belong to the categories mentioned. It concerns the ‘party’ himself/herself instead of his/her ‘family’. On the contrary, the EWS certificate issued as per the office memorandum is concerned with the ‘family’ and its gross annual income. It is issued only on the basis that the person concerned belongs to a ‘family’, whose gross annual income is less than Rs.8 lakh, and has no concern with the person’s own income or assets. Conclusion 12. Therefore, the petitioner’s attempt to seek exemption from filing the Affidavit of Disclosure by claiming herself to be from EWS category, since her family’s gross annual income is less than Rs.8 lakh from all sources, is misconceived. Conclusion 12. Therefore, the petitioner’s attempt to seek exemption from filing the Affidavit of Disclosure by claiming herself to be from EWS category, since her family’s gross annual income is less than Rs.8 lakh from all sources, is misconceived. It will not entitle her to seek exemption from filing the Affidavit in terms of the judgment in Rajnesh case (supra), since, as discussed above, paragraph 72.9.(i) of the guidelines does not refer to any such applicant, nor can the EWS certificate for claiming reservation in direct recruitment in civil posts and services as per the office memorandum, dated 31.01.2019, have any bearing on the requirement of filing the Affidavit for adjudicating the maintenance application. 13. In view thereof, there is no ground to interfere with the impugned order passed by the Family Court, and the petition is, accordingly, dismissed. 14. Pending miscellaneous application(s), if any, stand disposed of as having been rendered infructuous.