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2024 DIGILAW 1388 (PNJ)

Amit Kumar v. Pinki Rani

2024-12-17

SUMEET GOEL

body2024
JUDGMENT : Sumeet Goel, J. The instant petition is directed against the order dated 19.10.2023 passed by Principal Judge, Family Court, Bhiwani, Haryana whereby the petition filed by the respondent-wife (herein) under Section 125 of Cr.P.C., 1973 for grant of maintenance was allowed as follows: “5, For the foregoing reasons, recorded in light of the cumulative effect of the circumstances, the application seeking interim maintenance allowance is hereby allowed and the respondent is hereby directed to pay a sum of Rs.15,000/- (Rupees fifteen thousand only) per month to his petitioner-wife towards interim maintenance from the date of filing of the application till final disposal of the present petition on merits. Besides above, respondent is also directed to pay an amount of Rs.5500/- (rupees five thousand five hundred only) as of litigation expenses to the petitioners. Accordingly, the application for interim maintenance in hand stands disposed off in the above terms.” 2. Learned counsel for the petitioner has iterated that the respondent has deserted the petitioner without any reasonable cause and has intentionally refrained from joining the company of the petitioner. It has been further iterated that the Family Court has erroneously allowed the application of the respondent for interim maintenance based on unsubstantiated grounds. The Family Court has relied upon photographs of a dairy farm and buffaloes produced by the respondent despite the absence of any documentary evidence linking the petitioner to the said dairy farm. Furthermore, the respondent has failed to provide any concrete proof, such as documentary evidence, to establish the petitioner’s financial condition, ownership of movable or immovable property or actual income. Learned counsel asserts that it is the respondent who has left the matrimonial home without any valid reason and he has already filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which is pending before the learned Principal Judge, Family Court, Hisar. It has been further argued that the Family Court has overlooked the fact that it is the conduct of the respondent that led to the breakdown of the marriage. Learned counsel has highlighted that the petitioner has supported the respondent in her further studies by getting her admitted to a coaching institute which emphasize his efforts to sustain the marriage. It is, thus, pleaded that the interim maintenance of Rs.15,000/- granted by the learned Family Court is illegal and liable to be set-aside. 3. Learned counsel has highlighted that the petitioner has supported the respondent in her further studies by getting her admitted to a coaching institute which emphasize his efforts to sustain the marriage. It is, thus, pleaded that the interim maintenance of Rs.15,000/- granted by the learned Family Court is illegal and liable to be set-aside. 3. Per contra, learned counsel for the respondent submits that the learned Family Court has rightly determined the quantum of maintenance based on the calculation of the income of the petitioner and hence no interference is called for in the impugned order. According to him, the petitioner and his family members, used to treat the respondent with mental as well as physical cruelty in order to get their illegal demands of dowry and ultimately they had ousted the respondent from her matrimonial home without any reasonable and justifiable cause. Thus, it has been prayed that the present petition be dismissed. 4. I have heard counsel for the rival parties and have gone through the available records of the case. 5. During the course of hearing, it has transpired that the impugned judgment has been passed by the learned Family Court without seeking, from the rival parties, the affidavit(s) of assets and liabilities in terms of the judgment of the Hon’ble Supreme Court in Rajnesh vs. Neha, 2021(2) SCC 324 . 6. It would be apposite to refer herein to a judgment passed by the Hon’ble Supreme Court in Aditi @ Mithi vs. Jitesh Sharma, 2023 INSC 981 ; relevant whereof reads as under: - “8. The manner in which maintenance payable under Section 24 of the Hindu Mariage Act, 1955 or Section 125 Cr.P.C. is to be assessed, was considered by this Court in its celebrated judgment in Rajnesh v. Neha and Another, (2021) 2 SCC 324 . Detailed guidelines were issued. It was noticed that the terms of maintenance are decided on the basis of pleadings of parties and on the basis of some amount of guess work. It is often seen that both the parties submit scanty material and do not disclose correct details. The tendency of the wife is to exaggerate her needs, whereas the husband tends to conceal his actual income. Keeping that in view, this Court laid down the procedure to streamline grant of maintenance. It is often seen that both the parties submit scanty material and do not disclose correct details. The tendency of the wife is to exaggerate her needs, whereas the husband tends to conceal his actual income. Keeping that in view, this Court laid down the procedure to streamline grant of maintenance. The judgments of various courts were referred to and response from various State Legal Services Authorities was sought. This Court even requested the National Legal Services Authority to submit a report on the suggestions received from the State Legal Services Authorities for framing guidelines on the affidavit of disclosure of assets and liabilities to be filed by the parties. Guidelines were issued in exercise of powers under Article 136 read with Article 142 of the Constitution of India, prescribing a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings. The judgment was delivered on 04.11.2020. The affidavit was to be submitted in all maintenance proceedings including pending proceedings. The directions given are extracted as under: “72. Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of India: 72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures [, II and Ill of this 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. (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 [Kaushalva v. Mukesh Jain, (2020) 17 SCC 822 : 2019 SCC OnLine SC 1915] . 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 course 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. 72.7. (g) If during the course 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 CrPC, 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 dispensed with. 72.10. (j) The Family Court/District Court/Magistrate’s Court concerned must make an endeavour to decide the [A 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.” xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 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. 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, Section 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.” Thus, it is unequivocal that filing of affidavit(s) of assets and liabilities of rival parties, as mandated by the Hon’ble Supreme Court, is pertinent and essential. 7. It is not in dispute and rather has been conceded by the learned counsels for the rival parties that, that the affidavit(s) of assets/liabilities of rival parties were not brought on record. As a result thereof, the impugned judgment cannot be sustained on this score alone. 8. Keeping in view the totality of facts and circumstances of the case, it is directed as follows: (i) The impugned judgment order dated 19.10.2023 passed by Principal Judge, Family Court, Bhiwani, Haryana is set-aside. (ii) The parties are directed (through their respective counsel) to appear before the said Family Court on 07.01.2025 whereinafter the said Family Court shall proceed further, in accordance with law, with the matter & decide the same after taking affidavit(s) of assets/liabilities as directed for by the Hon’ble Supreme Court in the judgments titled as Rajnesh vs. Neha, 2021(2) SCC 324 and Aditi @ Mithi (supra). (iii) The petition (under Section 125 of Cr.P.C. of 1973 for grant of maintenance) was instituted in the year 2020 & hence the said Family Court is directed to decide the matter expeditiously, in accordance with law, preferably within a period of 03 months from date of the receipt/production of certified copy of this order. 9. Pending application(s), if any, shall also stand disposed off.