Karnataka High Court
Santosh S/O Kanteppa Wadepnoor vs Renuka W/O Santosh Wadepnoor And Anr on 27 March, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-K:2602-DB
MFA No.202478 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO.202478 OF 2022 (FC)
BETWEEN:
SRI SANTOSH
S/O KANTEPPA WADEPNOOR
AGE ABOUT: 43 YEARS
R/O H NO.8-10-117
BHAGYAWANTI LINGAYAT
KHANALVALI GANESH MAIDAN
BIDAR - 585 401.
...APPELLANT
(BY SRI GANESH SUBHASHCHANDRA KALBURGI AND
SRI ABHINAV R., ADVOCATES)
Digitally signed
by VARSHA N
RASALKAR AND:
Location: HIGH
COURT OF
KARNATAKA 1. SMT. RENUKA
W/O SANTOSH WADEPNOOR
AGED ABOUT 33 YEARS
R/O PLOT NO.55, H NO.3/352
ALAM PRABHU NAGAR
GUMPA, BIDAR - 585 403.
2. ABHISHEK
S/O SANTOSH WADEPNOOR
AGED ABOUT 16 YEARS
MINOR REPRESENTED BY HIS
GUARDIAN MOTHER
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NC: 2024:KHC-K:2602-DB
MFA No.202478 of 2022
THE 1ST RESPONDENT HEREIN
R/O PLOT NO. 55, H.NO.3/352
ALAM PRABHU NAGAR
GUMPA, BIDAR - 585 403.
...RESPONDENTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 05.08.2022 PASSED BY THE PRINCIPAL
JUDGE FAMILY COURT, BIDAR IN O.S.NO.04/2020 AND
DISMISS THE SAID SUIT BY ALLOWING THE APPEAL.
THIS MFA COMING ON FOR ADMISSION THIS DAY
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the husband under Section 19(1) of the Family Courts Act, challenging the judgment and decree dated 05.08.2022, passed in O.S.No.4/2020, whereby the husband was directed to pay the monthly maintenance of Rs.5,000/- to the wife and Rs.4,000/- to the son.
2. For the sake of convenience, parties are referred to as per their ranking before the Family Court.
3. The plaintiff Nos. 1 and 2 are the wife and son of the defendant. The plaintiffs filed a suit for maintenance and creating charges over the properties of the defendant. -3-
NC: 2024:KHC-K:2602-DB MFA No.202478 of 2022 The case of the plaintiffs is that plaintiff No.1 and defendant were married on 25.05.2003 in Bhavani Mandir, Kumbarwada, Bidar. Out of the wedlock, plaintiff No.2 born. After some time, there was a difference of opinion between the plaintiff No.1 and the defendant. They started living separately. Since the plaintiffs are not in a position to maintain their livelihood and the defendant was not paying any money, they filed the above suit before the Family Court, Bidar.
4. After service of summons, defendant appeared through counsel. After hearing the parties, the Family Court, by the impugned order, decreed the suit, directing the defendant to pay monthly maintenance of Rs.5,000/- to plaintiff No.1 - wife and Rs.4,000/- to plaintiff No.2 - son. Being aggrieved by the same, defendant - husband is before this Court.
5. Learned counsel appearing for the appellant/ defendant contended that before awarding monthly maintenance, the plaintiffs have not filed any affidavit -4- NC: 2024:KHC-K:2602-DB MFA No.202478 of 2022 disclosing their assets and liabilities. The Apex Court in the case of RAJNESH vs. NEHA reported in (2021) 2 SCC 324 has held that the Family Court, before deciding the maintenance, direct the parties to file an affidavit disclosing their assets and liabilities. Contrary to the judgment of the Apex Court, the decree has been passed.
6. Per contra, learned counsel appearing for the respondents/plaintiffs contended that the appellant/ defendant has appeared before the Family Court and after hearing both the parties the Family Court decreed the suit. The Family Court, after considering the oral and documentary evidence of the parties rightly decreed the suit. The decree passed by the Family Court is in accordance with law. Hence, sought for dismissal of the appeal.
7. Heard the learned counsel for the parties and perused the judgment and decree.
8. It is not in dispute that plaintiff Nos. 1 and 2 are the wife and son of the defendant. It is also not in dispute -5- NC: 2024:KHC-K:2602-DB MFA No.202478 of 2022 that plaintiff and defendant were married on 25.05.2003 in Bhavani Mandir, Kumbarwada, Bidar. Because of the dispute between the parties, the husband and wife were living separately. Since the plaintiff No.1 was unable to maintain herself and her son, she filed a suit against the defendant for maintenance. The Apex Court in the case of RAJNESH (supra) held as follows:
"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 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 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 -6- NC: 2024:KHC-K:2602-DB MFA No.202478 of 2022 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 [Kaushalya 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.-7-
NC: 2024:KHC-K:2602-DB MFA No.202478 of 2022 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.
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NC: 2024:KHC-K:2602-DB MFA No.202478 of 2022 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 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."
9. Following the judgment of the Apex Court in the case of RAJNESH (supra), the Apex Court in the case of ADITI ALIAS MITHI vs. JITESH SHARMA reported in 2023 SCC Online SC 1451 held as follows: -9-
NC: 2024:KHC-K:2602-DB MFA No.202478 of 2022 "15. 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, 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
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NC: 2024:KHC-K:2602-DB MFA No.202478 of 2022 level is taken up to this Court and the parties are forced to litigate.
10. From the above judgments, it is very clear that the Family Court, before passing any order for maintenance, either interim order or final order, has to insist the parties to file an affidavit in respect of the assets and liabilities. In the case on hand, both the plaintiff and the defendant have not filed their affidavits in respect of the assets and liabilities. Without the affidavit, the Family Court passed the decree and directed the defendant to pay the maintenance. The judgment and decree passed by the Family Court is contrary to the judgment of the Apex Court in the cases of RAJNESH (supra) and ADITI ALIAS MITHI (supra). Hence, the judgment and decree is unsustainable and liable to be set aside.
11. Accordingly, we pass the following order:
(i) The appeal is allowed.
(ii) The judgment and decree passed by the Family Court, Bidar in O.S.No.4/2020 is set aside.
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NC: 2024:KHC-K:2602-DB MFA No.202478 of 2022
(iii) The Family Court is directed to reconsider the matter afresh in terms of the law laid down by the Apex Court in the cases of RAJNESH (supra) and ADITI ALIAS MITHI (supra).
(iv) The parties are directed to appear before the Family Court, Bidar, on 24.04.2024, without any further notice.
(v) The Family Court, Bidar is directed to dispose of the suit, as expeditiously as possible, not later than four months from the date of appearance of the parties.
(vi) The amount deposited by the appellant/ defendant before this Court is ordered to be transferred to the Family Court, Bidar.
Sd/-
JUDGE Sd/-
JUDGE CM List No.: 1 Sl No.: 12