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2023 DIGILAW 2203 (BOM)

Sana Razvi v. State of Goa

2023-11-29

B.P.DESHPANDE

body2023
JUDGMENT/ORDER 1. Rule. rule is returnable forthwith. 2. Heard learned Counsel for the parties with the consent for final disposal. 3. The petitioner/wife challenged the order dtd. 25/07/2023 passed by the learned Trial Court whereby an application for directions to the respondent/husband to file an affidavit disclosing assets and liabilities, his source of Income, NRI Bank statement and other statements, was rejected. 4. Mr. Sardesai appearing for the petitioner submits that the impugned order is based on the observations of the Apex Court in Rajnesh v/s. Neha and Another [ (2021) 2 SCC 324 ]. He submits that the Trial Court rejected the application only on the ground that in Rajnesh (supra), the Apex Court considered the aspect of filing such an affidavit at the interim stage whereas the matter before the trial Court is at the final stage. 5. Mr. Sardessai now submits that recently in the case of Aditi alias Mithi v/s. Jitesh Sharma Criminal Appeal No.3446/2023 decided on 06/11/2023 by the Apex Court, this aspect has been clarified in paragraph No.14. According to him, the observations in the case of Rajnesh(supra) are also applicable at the final stage and hence the trial Court has committed error. 6. Per contra, Mr. Coutinho appearing for respondent No.2 submits that the husband has already filed an affidavit and he was cross-examined at length on all the aspects. The matter was fixed for final arguments and even arguments were heard partly when the present application was filed. He submits that the observations of the Apex Court in the case of Rajnesh(supra) are applicable at the interim stage. He also claims that the observations of the Apex Court in the case of Aditi(supra) while referring to Rajnesh there is only passing reference that such pronouncement is applicable even to the final stage. Besides this, he submits that the husband has already filed an affidavit in detail and no interference is called for with the order of the trial Court. 7. The rival contentions fall for determination. 8. On perusal of the impugned order, it is clear that learned trial Court has relied upon the observations in the case of Rajnesh(supra). The basic contention of rejection of such application is that the same is filed at the stage of final hearing whereas observations in the case of Rajnesh(supra) are applicable at the interim stage. 9. 8. On perusal of the impugned order, it is clear that learned trial Court has relied upon the observations in the case of Rajnesh(supra). The basic contention of rejection of such application is that the same is filed at the stage of final hearing whereas observations in the case of Rajnesh(supra) are applicable at the interim stage. 9. This aspect has been clarified in the case of Aditi(supra) and more specifically in paragraph No.14 which reads thus: "14. Nothing is evident from the record or even pointed out by the learned counsel for the appellant at the time of hearing that affidavits were filed by both the parties in terms of judgment of this Court in Rajnesh 's case (supra), which was directed to be communicated to all the High Courts for further circulation to all the Judicial Officers for awareness and implementation. The case in hand is not in isolation. Even after pronouncement of the aforesaid judgment, this Court is still coming across number of cases decided by the courts below fixing maintenance, either interim or final, without their being any affidavit on record filed by the parties. Apparently, the officers concerned have failed to take notice of the guidelines issued by this Court for expeditious disposal of cases involving grant of maintenance. Comprehensive guidelines were issued pertaining to overlapping jurisdiction among courts when concurrent remedies for grant of maintenance are available under the Special Marriage Act, 1954, Sec. 125 Cr.P.C., the Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act, 1956, and Criteria for determining quantum of maintenance, date from which maintenance is to be awarded, enforcement of orders of maintenance including fixing payment of interim maintenance. As a result, the litigation which should close at the trial level is taken up to this Court and the parties are forced to litigate." 10. In view of the said pronouncement of the Apex Court, it is clear that such directions in the case of Rajnesh(supra) are also applicable at the final stage. The principles laid down by the Apex Court in the case of Rajnesh(supra) and in the case of Aditi(supra) are required to be looked into without considering the stage of the matter. 11. The principles laid down by the Apex Court in the case of Rajnesh(supra) and in the case of Aditi(supra) are required to be looked into without considering the stage of the matter. 11. The contention of respondent No.2 that affidavit is already filed and he has been cross-examined by the petitioner, needs to be looked into with the fact that such affidavit is in fact not disclosing of required details of the assets and liabilities, bank transaction details, source of income of the husband etc. as required to be disclosed in the said proceedings. Accordingly, the affidavit filed by the husband before the trial Court cannot be considered as compliance of the directions of the Apex Court in the case of Rajnesh(supra) and further clarified in the case of Aditi(supra). 12. Accordingly, the impugned order needs to be quashed and set aside and the application at Exh.159 filed by the petitioner needs to be allowed. 13. At this stage, the learned Counsel for respondent No.2 pointed out that as per the observations in the case of Rajnesh(supra) the petitioner will have to file the affidavit of disclosure of assets. Mr. Sardessai undertakes to file such an affidavit before the trial Court within two weeks from today. 14. In view of the above observations, the impugned order is quashed and set aside. The application at Exh.159 filed by the petitioner before the trial Court stands allowed. The petitioner shall file an affidavit disclosing assets within a period of two weeks. Similarly, respondent No.2 shall file his affidavit within a period of two weeks. 15. The petition stands disposed of in the above terms. Accordingly, Rule is made absolute.