Chattisgarh High Court
Hemant Suryavanshi vs Smt. Bharti Suryavanshi on 13 May, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP227 No. 135 of 2022
Hemant Suryavanshi S/o Ramchanran Suryavanshi Aged About 29
Years R/o Qtr. No. M-396, Pump House Colony, Chowki CSEB, Korba,
Tehsil And District Korba Chhattisgarh. ---- Petitioner
Versus
Smt. Bharti Suryavanshi W/o Hemant Suryanvanshi, Aged About 27
Years R/o Qtr. No. LCH-96, Chief House, Katainaar, Banki Mongra,
Thana Banki Mongra, Tehsil Katghora, District Korba Chhattisgarh.
Mobile No. 9098278336 ---- Respondent
For Petitioner :Shri Sanjay Patel, Advocate.
For Respondent :Shri Vijay Kumar Sahu, Advocate Hon'ble Shri Justice Sanjay S. Agrawal Order on Board 13.05.2022
1. By way of this petition, the petitioner - husband is questioning the legality and propriety of the order dated 26.08.2021 (Annexure P/2) passed by the Family Court, Camp Court, Katghora, District Korba, in Case No. 26/2021 "Smt. Bharti Suryawanshi vs. Hemant Suryawanshi", whereby the learned Court below has granted interim maintenance to the wife to the extent of Rs.5,000/- per month.
2. Briefly stated the facts of the case are that the respondent - wife initiated the proceedings under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C) by submitting, inter alia, that her marriage with the petitioner was solemnized on 14.05.2019 and immediately thereafter, she was ill-treated by her in-laws, owing to which, she was compelled to return to her parental house on 03.12.2019 and since then she is living there. It is pleaded further that she has no independent source of income and is, therefore, unable to maintain herself, whereas her husband is 2 working in the capacity of staff nurse in Gita Memorial Hospital and used to earn Rs.30,000/- per month. She, therefore, prays for grant of interim maintenance to the tune of Rs.12,000/- per month, while moving an application in the said proceeding.
3. In reply to the said application for grant of interim maintenance, it is stated by the petitioner - husband that he is unemployed and has no source of income and contended further that his wife herself has left the matrimonial house without any sufficient reasons being assigned, therefore, she is not entitled to get any amount of maintenance from him.
4. After considering the aforesaid application with regard to the grant of interim maintenance, the Family Court, vide its order impugned dated 26.08.2021 has fixed the interim maintenance amount of Rs.5,000/- per month payable by the petitioner to his wife. This is the order which has been questioned by way of this petition.
5. Learned counsel appearing for the petitioner submits that the learned Family Court has committed an illegality in fixing the alleged amount of maintenance only on the basis of averments made in the application, which is, however, not permissible in law. While placing his reliance upon the decision rendered by the Supreme Court in the matter of Rajnesh vs. Neha and another reported in (2021) 2 SCC 324, it is contended that before determining the amount of interim maintenance, the trial Court ought to have called for the Affidavits from both the parties in view of the said judgment. Having failed to do so, the Court below has erred in fixing the alleged amount of maintenance, which is, therefore, liable to be set aside.
6. On the other hand, learned counsel appearing for the respondent has supported the order impugned as passed by the Court below, while submitting that it does not require to be interfered. 3
7. I have heard learned counsel for the parties and perused the entire papers annexed with this petition carefully.
8. A bare perusal of the order impugned, it appears that the learned Court below has fixed the alleged interim amount of maintenance merely on the basis of the averments made in the said application for grant of interim maintenance and reply of it as filed by the petitioner. The Court below, however, should have called for the Affidavits from both the parties before determining the alleged amount of maintenance and should have followed the guidelines made by the Supreme Court in the matter of Rajnesh vs. Neha and another (supra) wherein it has been laid down at para 72 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 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 application accompanied with the Affidavit of Disclosure of Assets;
72.3 (c) The respondent must submit the reply alongwith 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. 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;4
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 concerned Court, 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 XI CPC. On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C 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 (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 u/S. 340 Cr.P.C. 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."5
9. The aforesaid guidelines so framed have been circulated to all the District Courts through the Registry of this Court as per the direction issued by the Supreme Court. However, despite the circulation of it, the same have not been followed by the Court below and in most casual manner and merely on the basis of the pleadings made in the application as well as its reply, the order impugned has been passed assessing the amount of interim maintenance to the tune of Rs.5,000/- per month payable to the wife. However, in the light of aforesaid guidelines, the concerned Family Court should have determined the amount of maintenance by obtaining the Affidavits of both the parties. But, no effort as such has been made by the Court below and without obtaining the Affidavits from the parties in the light of the said decision, the alleged amount of Rs.5,000/- has been determined towards grant of interim maintenance payable by the petitioner to his wife, which, therefore, cannot be held to be sustainable in the eye of law. The order impugned as passed by the learned Family Court, therefore, deserves to be and is hereby set aside.
10. Consequently, the matter is remitted back to the concerned Family Court with a direction to decide the said application afresh strictly in accordance with the guidelines framed by the Supreme Court in the matter of Rajnesh vs. Neha and another (supra) as early as possible and, both the parties are hereby directed to furnish their Affidavits forthwith, in the light of the said decision.
11. With the aforesaid observation, the petition stands disposed of.
Sd/-
(Sanjay S. Agrawal) Judge Anjani 6 HIGH COURT OF CHHATTISGARH, BILASPUR Order Sheet WP227 No. 135 of 2022 Hemant Suryavanshi Versus Smt. Bharti Suryavanshi 13.05.2022 Shri Sanjay Patel, counsel for the petitioner.
Shri Vijay Kumar Sahu, counsel for the respondent. With the consent of the parties, the matter is heard finally.
Order dictated in open Court. Signed and dated separately.
Sd/-
(Sanjay S. Agrawal) Judge Anjani