The Supreme Court of India has directed the husband to pay arrears of maintenance to wife as it found that the order of remand simplicitor passed by Family Court was without providing any financial security to the wife being noticing that maintenance remained pending for nearly a decade.
The Apex Court instructed payment of the arrears in six equal monthly instalments and if the husband fails to comply with the order for deposit of arrears and month to month installments, it will be open to the wife to apply before the Family Court to get the defence of the husband struck off.
The roots of the case begin with the date 16th Oct, 2006, when the husband instituted a petition for divorce before the Family Court and 22nd Aug 2007, when the wife instituted maintenance proceedings under Section 125 of the CrPC.
Parties adduced evidence in the maintenance proceedings which continued to remain pending from 2007 until 29 April 2017 when the First Additional Family Court at Chennai awarded maintenance in the amount of ₹20,000 per month to the appellant with effect from 22 Aug 2007 which is the date on which the petition for maintenance was instituted.
Both the parties moved the High Court in revision, the wife seeking enhancement of maintenance, while the husband challenged the order for the grant of maintenance.
The High Court allowed the revision filed by the husabnd on the ground that the Family Court, having held that the appellant had failed to demonstrate what was the actual income earned by the respondent, an award of maintenance in the sum of ₹20,000 per month was without basis and thus passed an order of remand.
In the meantime the husband filed a divorce petition being and on 29 Nov 2008 an ex parte decree granting the divorce was passed. The wife has moved an application for setting aside the ex parte decree on the ground that the summons were not served on her and that though she resides at Chennai, substituted service took place through the publication of the summons in the newspapers at Jodhpur.
The Supreme Court was of the opinion that even though the application for setting aside the ex parte decree is pending, that doesn't form the subject matter of these proceedings.
It was also emerged taht during the course of proceedings before this Court since the passing of the decree for divorce, the wife has married again and has a child from the marriage.
In support of the application for maintenance under Section 125 of the CrPC, the wife stated that the respondent who is a member of a joint family has a shop at Jodhpur and a jewellery and financing business but the husband denied these averments.
He, in his defence has said that he was “now” residing in Baroda as he is employed there having been forced to leave the joint family because of the behaviour of the appellant. He claimed that he was working on a monthly remuneration of ₹3,500 in a school in District of Panch Mahal and that presently, he was working for a private limited company as a Supervisor on a salary of ₹ 5,000 per month. The aforesaid position was set out in the counter affidavit filed before the Family Court on 14 July 2008.
Further, the Court took notice that the judgment of the Trial Court indicates that the wife relied upon the commercial tax returns and the deposition of the sister in law of the husband. The learned counsel appearing on behalf of the appellant has placed reliance on the documentary material. In the divorce proceedings before the Family Court at Jodhpur, the husband in the course of his deposition, stated that all the brothers have a joint business and there is a shop where the joint business was being carried on. The sister-in-law of the respondent (PW-2) in the above case stated that all the members of the family were residing together as a joint family.
The father of the husband, in his evidence, also made a reference to the shop in which the family carried on its business. The appellant produced the returns obtained from the Commercial Taxes Department and the Government of Rajasthan for the purposes of Value Added Tax which indicates a gross turn over of ₹7.82 crores of a firm by the name of Shreepal Marketing for the period from 1 July 2015 to 30 Sept 2015. Besides the aforesaid documentary material, the wife has also produced documents obtained from the Commercial Taxes Department which are annexed to the affidavit in rejoinder.
On this note Learned Counsel that while the Trial Court may have felt some difficulty in making an exact computation of the income of the respondent, this is certainly not a case where the 4 appellant should be left in the lurch without any order of maintenance whatsoever pending an uncertain future date when the remanded proceedings would be decided.
The Apex Court after examining all that felt that the state of affairs relating to this case has to be rectified at the earliest as it is symptomatic of the breakdown of the administration of justice in family matters.
Thus the Court affirmed the order of remand as the learned counsel of wife submitted that in the course of remanded proceedings, the respondent would wish to lead evidence in regard to the financial position of the wife. It was also of the opinion that doing so without a protective ad interim direction for the grant of maintenance would result in a failure of justice.
It thus passed the discussed directions on maintenance alsong with instructions to Family Court to dispose of the remand proceddings within six months.
It also request Mr. Sriram Panchu (learned senior counsel practising before the Madras High Court) to act as a mediator to explore the possibility of a mediated settlement.
The Judgement has been delivered by a bench comprising of Justice D Y Chandrachud and Justice Indira Banerjee on 24-07-2019.
Read Judgement Here:
