Gauhati High Court
Smt. Anindita Bhattacharjee vs Udit Mukherjee And 2 Ors on 4 December, 2020
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/5
GAHC010076012020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/315/2020
SMT. ANINDITA BHATTACHARJEE
W/O SRI UDIT MUKHERJEE, D/O LATE ASHISH BHATTACHARJEE, C/O ANIL
SAHA, H/ NO. 2, BLOCK-C, BHASKARNAGAR, P.O.-VINOVANAGAR,
GUWAHATI-781018, DIST-KAMRUP(M), ASSAM
VERSUS
UDIT MUKHERJEE AND 2 ORS.
S/O TRIDIV KANTI MUKHERJEE, R/O A 112, DELHI POLICE SOCIETY, PI I
SECTOR 32, GREATER NOIDA, UTTAR PRADESH-201308
2:TRIDIV KANTI MUKHERJEE
S/O LATE B.C MUKHERJEE
R/O A 112
DELHI POLICE SOCIETY
PI I SECTOR 32
GREATER NOIDA
UTTAR PRADESH-201308
3:SMT. ARUNIMA MUKHERJEE
W/O SRI TRIDIV KANTI MUKHERJEE
R/O A 112
DELHI POLICE SOCIETY
PI I SECTOR 32
GREATER NOIDA
UTTAR PRADESH-20130
Advocate for the Petitioner : MR. V K CHOPRA
Advocate for the Respondent : MR. M U MAHMUD
Page No.# 2/5
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 04.12.2020 Heard Mr. VK Chopra, learned Counsel for the applicant and Mr. MU Mahmud, learned counsel for the opposite party.
By this interlocutory application, the applicant/petitioner in Criminal Revision Petition No.09/2020 has prayed for modification and/ or alteration and/ or amendment of the order, dated 08.01.2020, passed by this Court in the aforesaid Criminal Revision Petition, whereby till the returnable date, further proceeding in DV Case No.109 M/2017, pending in the Court of learned Judicial Magistrate, First Class, Kamrup (M) at Guwahati was stayed.
The applicant has contended that in the said DV Case No.109 M/2017, the learned trial court by its order, dated 30.08.2017, allowed the interim prayer by directing the opposite party/ respondent No.1 to pay a monthly allowance of Rs.3000/- to her, who is the aggrieved person as well as Rs.3000/- for her house rent allowance and further, by its order, dated 05.12.2017, directed the opp.party/respondent No.1 to deposit the maintenance allowance as well as house rent allowance in the bank account as furnished by the aggrieved person. It has been contended that the further proceeding in the case pending in the learned court below was stayed on the prayer of the applicant/petitioner and while seeking the stay of the proceeding, on behalf of the applicant, neither the prayer was made in the Revision Petition nor any submission was made at the time of Motion to make the effective provision in the interim order for payment of the arrear interim maintenance as granted by the learned Magistrate as well as the future maintenance. Consequently, the learned Magistrate due to the stay of the further proceeding has not allowed payment of arrear maintenance due since November, 2019 as well as the future maintenance and as such, the order, dated 08.01.2020 has been necessitated to be modified as prayed to enforce the payment of arrear as well as further maintenance to the petitioner by the opposite party, which is not the subject matter of the application nor was the subject matter of Criminal Appeal No.112/2018.
The applicant/petitioner filed an application against the respondent/opp.parties under section 12 of the DV Act before the Court of learned CJM, Kamrup (M) at Guwahati, Page No.# 3/5 whereupon DV Case No.109M/ 2017 was registered. In para 14 of the said application, the applicant/petitioner pleaded that the monthly income of the respondent/ opposite party No.1 was about Rs.1.10 Lakh (Rs.60,000/- salary + Rs.20,000/- rent + Rs. 30,000/- interest) and the respondent Nos. 2 and 3 have income from pension etc. The respondent/ opp.parties in their written statement denied the aforesaid income and the respondent No.1 furnished his bank account statement showing his salary and other income sources. In view of such contesting plea and counter plea regarding income, assets and liabilities of the respondent No.1, the applicant/ petitioner filed an application on 20.04.2018 in the court of learned Magistrate seeking a direction for filing affidavits by both parties disclosing their respective assets, income and expenditures following the principle laid in the judgment, dated 14.01.2015 of the Delhi High Court passed in Kushum Sharma -vs- Mahindra Kumar Sharma . However, by order, dated 26.06.2018, the learned trial court rejected the said petition holding that submission of affidavits on assets, income and expenditures by the parties would amount to resolve the petitioner/aggrieved person from her burden of proof of income of the respondents. Moreover, the aforesaid judgment of the Delhi High Court, which is yet to attain finality, is found to be not a binding precedent on the said Court. Being aggrieved by the aforesaid order, the applicant/petitioner preferred an appeal under Section 29 of the DV Act, being Criminal Appeal No.112/2018, but the same was dismissed by the appellate court of learned Addl.Sessions Judge, FTC No.3, Kamrup (M), Guwahati vide order, dated 07.12.2019, holding that the parties to the case cannot be made to self incriminate themselves and neither there is any specific guideline from this High Court nor any such rules have been framed and thereby upheld the impugned order, dated 26.06.2018 of the learned trial Court. Being aggrieved by the aforesaid order, dated 07.12.2019, the applicant/petitioner has preferred the connected criminal revision being Crl.Revn.petition No.9/2020 praying as follows:
"It is, therefore, prayed that Your Lordships may be pleased to issue a Rule calling upon the respondent to show cause as to why the Impugned Judgment and Order dated 07/12/2019, passed by the L'd Additional Sessions Judge (FTC) No.3, Kamrup (M), Guwahati in Criminal Appeal No.112/2018 and the order dated 26.06.2018 passed by te JMFC, Kamrup (M), Guwahati in DV Case No.109 M/2017 should not be set aside and / or quashed;
Page No.# 4/5 AND Call for the record of Criminal Appeal No.112 /2018 from the Court of Additional Sessions Judge (FTC) No.3, Kamrup (M), Guwahati and the records of the DV Case No.109M/2017 which is now pending in the Court of Judicial Magistrate, 1st Class, Kamrup, Guwahati and on hearing such cause or causes as may be shown by the respondent, make the Rule absolute and/or pass such or further Order/Orders as to Your Lordships may seem fit and proper;
In interim, the further proceeding of the DV Case No.109 m of 2017 which is now pending in the Court of Judicial Magistrate, 1 st Class, Kamrup, Guwahati may kind be stayed.:
Upon hearing the learned counsel for the applicant/petitioner and as prayed for interim relief, stated above, this Court passed the following order, dated 08.01.2020 (relevant portion) "X X X X X X X X X X X X X X Till the returnable date, further proceedings in DV Case No.109M/2017, pending in the Court of learned JMFC, Kamrup (M), Guwahati shall remain stayed"
Now, by the instant Interlocutory Application the applicant/petitioner has prayed for modification of the above interim order of stay of proceeding.
Mr. VK Chopra, learned counsel for the applicant/petitioner, submits that the matter should be remanded back to the Court of learned trial Court for consideration of her aforesaid petition, dated 20.04.2018, afresh in view of the recent guidelines issued, interalia, in such situation by the Hon'ble Apex Court in the judgment rendered in Criminal Appeal No.730/2020 (Rajnesh -vs- Neha & Anr) (arising out of SLP (Crl.)No.9503 of 2018).
Mr. MU Mahmud, learned counsel appearing for the opposite party/respondent has concurred with the view expressed by the learned counsel for the applicant/petitioner.
In Rajnesh (supra), the Hon'ble Apex Court issued guidelines, interalia, under the heading 'Payment of Interim Maintenance' as hereunder:-
"(b)Payment of Interim Maintenance The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by Page No.# 5/5 both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court/ District Court / Magistrates Court, as the case may be, throughout the country.
(c)Criteria for determining the quantum of maintenance For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B -III of the judgment.
The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
(d)Date from which maintenance is to be awarded We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B -IV above.
(e)Enforcement/ Execution of orders of maintenance For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.
In view of the above recent guidelines of the Hon'ble Supreme Court on the subject, and as submitted by both sides, the interim stay order, dated 08.01.2020, on the proceedings in DV Case No.109 M/2017 pending in the court of learned Judicial Magistrate, 1 st Class, Kamrup (M) Guwahati is hereby vacated.
Interlocutory application stands disposed off.
JUDGE Comparing Assistant