Jharkhand High Court
Sumit Saurav Aged About 33 Yrs. S/O ... vs The State Of Jharkhand on 15 April, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 300 of 2020
Sumit Saurav aged about 33 yrs. S/o Surendra Kumar, R/o Road No.3,
Budhanagar, South Chandmari Road, Kankerbagh, P.O. & P.S. Kankerbagh,
District Patna, Bihar-800020, presently posted as Senior Analyst, Bank of
America, Gurgaon Branch, Gurgaon, P.O. & P.S. Palam Bihar, Dist.- Gurgaon
(Hariyana). ... ... Petitioner
Versus
1. The State of Jharkhand.
2. Rashi Krishan, W/o Sumit Saurav, R/o 304, "Sushma Apartment, D.L. Bose
Lane, Tharpakhna, P.O. G.P.O., P.S. Lower Bazar, District Ranchi.
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Shailesh Kumar Singh, Advocate
For the Respondents : Mr. Abhijeet Kumar Singh, Advocate
: Mr. A.K. Kashyap, Sr. Advocate
For the State/APP : Ms. Nehala Sharmin, Spl. PP
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th
19/15 April 2024
1. Learned counsel for the parties are present.
2. This criminal revision has been filed challenging the legality, proprietary and correctness of the judgment dated 19.02.2020 passed by the learned Principle Judge, Family Court, Ranchi, in Original Maintenance Case No. 03 of 2019 whereby the learned Family Court has been pleased to pass an order directing the petitioner to pay a sum of Rs. 45,000/- per month to the opposite party no. 2 with effect from the date of the judgment.
3. Learned counsel for the parties have submitted that the impugned judgment dated 19.02.2020 was passed prior to the judgment of the Hon'ble Supreme Court in the case of Rajnesh vs. Neha & Anr. reported in (2021) 2 SCC 324 dated 04th November, 2020. However, this Court vide order dated 17.11.2021 had directed the parties to file their required affidavits in terms of Rajnesh vs. Neha & Anr. (supra). They submitted that affidavit has been filed before this Court, but there is a dispute with regards to correctness of the affidavit.
4. The learned counsels have jointly submitted that there is a serious dispute with regard to the quantum of maintenance in the instant case. It is not 2 in dispute that the opposite party no. 2 is the wife of the petitioner and both the parties are well educated.
5. Learned counsel for the petitioner has submitted that there was no disclosure of income of the opposite party no. 2 before the learned family Court and it cannot be assumed that she did not have any income. He has submitted that the quantum of income is to be determined in accordance with law even though in the judgment passed by Hon'ble Supreme Court in the case of Rajnesh vs. Neha & Anr. (supra), the affidavit of disclosures was required to be filed in all pending cases. He submits that in view of the order dated 17.11.2021 passed by this court in this case as well as the nature of dispute involved in the present case, the matter is fit to be remanded to the learned Family Court for fresh consideration upon filing of affidavits of both the parties in terms of Rajnesh vs. Neha & Anr. (supra). He submits that the petitioner is ready to file the required the affidavit in terms of Rajnesh vs. Neha & Anr. (supra) before the learned Court below within a period of 15 days from today and a date for that purpose may be fixed by this Court.
6. Learned counsel appearing on behalf of the opposite party no. 2 has submitted that she has no objection if the matter is remanded for fresh consideration but the maintenance which has been fixed by the learned Family Court be continued to be paid particularly with regards to the current maintenance so that the opposite party may not suffer any problem while conducting her case before the learned family court. He has also submitted that the impugned order of granting maintenance from the date of the judgment and not from the date of filing of the case itself is not correct in view of the judgment passed by the Hon'ble Supreme Court in the case of Rajnesh vs. Neha & Anr. (supra) which has held that the maintenance has to be awarded from the date of filing of the application.
7. Learned counsel has submitted that the maintenance may be continued as interim maintenance subject to the final result of the case before the learned family court.
8. At this, the learned counsel for the petitioner submitted that there is a distress warrant issued against the petitioner on account of non-payment of maintenance and he submits that the payment of current maintenance be made subject to the final result of the case.
39. He has further submitted that time frame of about two months may be fixed from the date of appearance of the parties, so that the matter is ultimately taken into a logical end. He further submitted that the Hon'ble Supreme Court in the case of Rajnesh vs. Neha & Anr. (supra) has also indicated that in case of false affidavit of disclosure of assets and liabilities a proceeding under Section 340 of the Cr.P.C. may also be initiated.
10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the marriage between the parties is not in dispute. This Court also finds that both the parties are highly educated and at the time of marriage, they were having their independent source of income. However, it is the case of the opposite party no. 2 that on account of illicit relationship of the petitioner with a third person and the fact that they were living at different locations, the marriage was not working out well and on account of this, she was forced to come back to her parental house after leaving the job and she has been staying at Ranchi along with her parents.
11. This Court finds that before the learned Family Court, true disclosure with regard to the income of the parties was not brought on record. The opposite party no. 2 had neither disclosed her income on affidavit, nor her income, tax returns, etc were filed before the learned Family Court. However, the petitioner had filed certain documents but the disclosure of assets and income was also not complete in all respect. Apparently, both the parties are fighting on the point of quantum of maintenance.
12. This Court is of the considered view that the quantum of maintenance cannot be fixed by this Court in revisional jurisdiction.
13. As observed by the Hon'ble Supreme Court in the case of Rajnesh vs. Neha & Anr. (supra) even if the wife and her parents have sufficient income for her maintenance that cannot operate as a bar from being awarded maintenance by the husband. However, certainly the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
14. In view of the fact that the parties are fighting on the quantum of maintenance and the obligation of the husband to maintain his wife cannot be disputed, the maintenance has to be quantified in accordance with law.
15. Some of the important observations and directions issued by the Hon'ble Supreme Court in the case of Rajnesh v. Neha, (2021) 2 SCC 324 which are relevant for the present case are as under :-
472. 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 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. 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.
572.7. (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 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.
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(c) Where wife is earning some income
90. The courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The courts have provided guidance on this issue in the following judgments:
90.1. In Shailja v. Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.
90.2. In Sunita Kachwaha v. Anil Kachwaha the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.6
90.3. The Bombay High Court in Sanjay Damodar Kale v.
Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha, held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.
90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court.
90.5. This Court in Shamima Farooqui v. Shahid Khan cited the judgment in Chander Parkash with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
........................................................... VI. Final Directions
127. In view of the foregoing discussion as contained in Part B
-- I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India.
(a) Issue of overlapping jurisdiction
128. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:
128.1. (i) Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding.
128.2. (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding.
128.3. (iii) If the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding.
(b) Payment of Interim Maintenance
129. 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 both parties in all maintenance proceedings, including pending proceedings before the Family Court/District 7 Court/Magistrates Court concerned, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
130. 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 court concerned 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
131. 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
132. For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28-A of the Hindu Marriage Act, 1955; Section 20(6) of the DV Act; and Section 128 of CrPC, 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 read with Order 21.
133. Before we part with this judgment, we note our appreciation of the valuable assistance provided by the learned Amici Curiae Ms Anitha Shenoy and Mr Gopal Sankaranarayanan, Senior Advocates in this case.
134. A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States.
It shall be displayed on the website of all District Courts/Family Courts/Courts of Judicial Magistrates for awareness and implementation."
16. In view of the aforesaid facts and circumstances, the impugned order dated 19.02.2020 passed in Original Maintenance Case No. 03 of 2019 is hereby set aside only with regard to the quantum of maintenance, so that the matter is taken up afresh by the learned Family Court and the quantum of maintenance be fixed in terms of the judgment passed by the Hon'ble Supreme Court in the case of Rajnesh vs. Neha & Anr. (supra).
17. It is also observed that since the monthly income of the parties could vary from time to time, therefore, the parties to file their disclosures for each of the financial year right from the date when the case was filed before the learned family court.
818. The parties to appear before the learned family court on 30th April, 2024 with the required affidavit in terms of the terms of the judgment passed by the Hon'ble Supreme Court in the case of Rajnesh Vs. Neha & Another (supra) and observation made above. Upon their appearance, the learned Family Court is directed to pass appropriate order in accordance with law with regard to the quantum of maintenance after giving due opportunity to the parties concerned by 14th of June, 2024.
19. Learned counsel for the parties have undertaken to extend all co- operation before the learned Family Court for expeditious disposal of the matter in terms of the directions by this Court.
20. The fresh order to be passed by the learned court be communicated to the parties through e-mail at the e-mail id to be provided by them.
21. Although there are arrears in connection with maintenance, since the matter is being remanded for fresh consideration on the quantum of maintenance, it is hereby directed that the petitioner would continue to pay current monthly maintenance amount of Rs. 45,000/- to the opposite party no.2 from the month of April, 2024 and the same would be subject to final adjudication by the learned family Court on the point of quantum of maintenance. The current maintenance amount for the month of April, 2024 be remitted to the bank account of the opposite party no. 2 within a period of one week from today.
22. Considering the aforesaid facts and circumstances, the distress warrant issued against the petitioner due to non-payment of the maintenance passed by the learned Family Court is hereby set aside.
23. Pending I.A. No. 3328 of 2024 and I.A. No. 5715 of 2022 are closed.
24. The present petition is accordingly disposed of in the aforesaid terms.
25. Let a copy of this order be communicated to the learned court through 'FAX/e-mail'.
(Anubha Rawat Choudhary, J.) Aditi