Himachal Pradesh High Court
_________________________________________________ vs Divya Jyoti on 9 October, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 44 of 2023
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Reserved on: 28.09.2023
Date of Decision: 09.10.2023
_________________________________________________
Kamlesh Thakur
....Petitioner
Versus
Divya Jyoti
of
...Respondent
_________________________________________________
Coram
Hon'ble Mr. Justice Sushil Kukreja, Judge.
rt
Whether approved for reporting?1
________________________________________________
For the petitioner: Mr. Javed Khan, Advocate.
For the respondent: Mr. Ajay Kumar Chauhan,
Advocate.
________________________________________________
Sushil Kukreja, Judge (Oral)
The instant petition has been filed by the petitioner, who was respondent before the learned Trial Court, under Sections 482 of the Code of Criminal Procedure (for short 'Cr.P.C.') with a prayer to quash and set-aside order dated 26.11.2022, passed by the learned Sessions Judge (Family Court) Mandi, District Mandi, H.P., in a petition under Section 125(3) Cr.P.C., CIS Registration No. 36 of 2022, titled as Divya Jyoti vs. Kamlesh Thakur, passed in 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 09/10/2023 20:36:12 :::CIS 2Cr.M.A. No. 02/2022, whereby the learned Court has allowed the above mentioned petition and interim monthly .
maintenance of Rs.5000/- was awarded to the respondent, who was petitioner before the learned Trial Court, alongwith litigation charges to the tune of Rs.5000/- from the date of of application till the final disposal of the main petition (Case No. 28 of 2022).
2. The brief facts of the case, which emerge from rt the records, can be encapsulated as under:
2(a). The petitioner and respondent had solemnized marriage in the year 2010, as per the Hindu Rites and Customs, but no issue was born out of their wedlock. The respondent herein alleged before the learned Court below that the petitioner kept her nicely for 3-4 years and thereafter, he started harassing her and also started giving beatings to her. The respondent further alleged that during the month of July, 2019, the petitioner gave her merciless beatings and also ousted her. The respondent alleged that she has no source of income, whereas, the petitioner is working in Mandi Parwati Project on a technical post and his monthly salary is ::: Downloaded on - 09/10/2023 20:36:12 :::CIS 3 Rs.40,000/- and in addition to this he has landed property as well. Cumulatively, the monthly income of the petitioner, as .
per the respondent, is Rs.80,000/- per month.
2(b). The petitioner herein, by filing reply to the petition before the Court below, contested the same. The petitioner of alleged that he is an unemployed person, having no permanent source of income. He has further alleged that he earns his livelihood by doing private work of driving. He has rt liability towards his parents and other family members. As per the petitioner, the respondent had herself left his company and neglected him. The petitioner had prayed for dismissal of the petition preferred by the respondent before the learned Trial Court.
2(c). However, vide impugned order dated 26.11.2022, the learned trial Court had granted interim maintenance in favour of the respondent (herein) at the rate of Rs. 5,000/- per month, which is to be paid by the petitioner w.e.f. filing of the petition till final disposal of the main petition. The petitioner-Kamlesh Kumar was also directed to ::: Downloaded on - 09/10/2023 20:36:12 :::CIS 4 pay litigation expenses to the tune of Rs.5000/- to the respondent.
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3. Being dissatisfied, the petitioner preferred the instant petition with a prayer to allow the instant petition and to quash and set-aside the impugned order dated of 26.11.2022, passed by the learned Sessions Judge (Family Court) Mandi, District Mandi, H.P., in a petition under Section 125(3) Cr.P.C., CIS Registration No. 36 of 2021, titled as rt Divya Jyoti vs. Kamlesh Thakur.
4. I have heard the learned counsel for the parties and also gone through the material available on record.
5. In Rajnesh Vs. Neha and Another, (2021) 2 Supreme Court Cases 324, the Hon'ble Supreme Court had issued directions that the affidavit of disclosure of assets and liabilities shall be filed by both the parties in all the maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrate Court concerned, as the case may be, throughout the country to enable the Court to make an objective assessment of the quantum of interim maintenance. The Hon'ble Supreme ::: Downloaded on - 09/10/2023 20:36:12 :::CIS 5 Court had also issued necessary guidelines in this respect, which read as under:-
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"72.1 (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the Family of Court/District Court/Magistrate's Court concerned, as the case may be, throughout the country; 72.2 (b) The applicant making the claim for rt 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 willful 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;::: Downloaded on - 09/10/2023 20:36:12 :::CIS 6
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 of 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, rt 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 ::: Downloaded on - 09/10/2023 20:36:12 :::CIS 7 considered by the court at the time of final determination.
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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 PC, and for contempt of court.
of 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 rt 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 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."
6. In the instant case, the perusal of the record reveals that the learned trial Court has not called upon both the parties to file their affidavits of disclosure of assets and liabilities and had awarded interim maintenance in favour of the respondent in the sum of Rs. 5,000/- per month without calling for ::: Downloaded on - 09/10/2023 20:36:12 :::CIS 8 the affidavits of disclosure of assets and liabilities as per the directions of the Hon'ble Supreme Court.
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7. Hence, in view of the directions/guidelines issued by the Hon'ble Supreme Court and also in view of the facts and circumstances of the present of case, the matter deserves to be remanded back to the learned trial Court.
8. Accordingly, the matter is remanded back to rt the learned trial Court to decide the same afresh after calling both the parties to file their affidavits of disclosure of assets and liabilities in accordance with the directions/guidelines issued by the Hon'ble Supreme Court in Rajnesh's case (supra). The parties are directed to appear before the learned trial Court on 21st November, 2023.
9. In view of the above, the petition is disposed of, so also pending application(s), if any.
( Sushil Kukreja )
9th October, 2023 Judge
(raman)
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