* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: September 02, 2022
+ CRL.M.C. 3202/2021
SONATA PARASHAR ..... Petitioner
Represented by: Mr.Jatin Sehgal, Advocate.
versus
TUSHAR GOYAL ..... Respondent
Represented by: Ms. Priya Hingorani, Sr. Advocate with Mr Himanshu Yadav and Mr. Anirudh Jamwal, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this petition, the petitioner seeks setting aside of the order dated 17th November 2021 passed by the learned Additional Sessions Judge, Saket whereby the appeal filed by the petitioner against the order of the learned Metropolitan Magistrate dated 1st September 2021 wherein the respondent was directed to produce only the partnership deed and Income Tax Return, was dismissed.
2. The petitioner got married to the respondent on 23rd February 2015. However, due to the differences between the parties on the allegations of unlawful acts of the respondent, the petitioner filed an application under Section 23 of the Protection of Women from Domestic Violence Act 2005 (in short, the PWDV Act) before the learned Metropolitan Magistrate being CC No. 13307/2018 titled 'Sonata Parashar Vs. Tushar Goyal and Ors.' The learned Metropolitan Magistrate issued notice to the respondent on the said application and in the meantime, restrained him from dispossessing the petitioner from the matrimonial home. Vide order dated 27th April 2019, Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 1 of 21 Signing Date:02.09.2022 19:48:55 learned M.M. directed both the parties to file their respective income affidavits in terms of the judgment of this Court reported as (2020) 271 DLT 232 in Kusum Sharma Vs. Mahinder Kumar Sharma.
3. Grievance of the petitioner is that though she filed an income affidavit along with the relevant documents, however, the respondent filed his income affidavit without disclosing his true financial details along with the illegible, deficient and incomplete documents. Further, despite the undertaking given to file a complete set of income affidavit along with the set of legible documents, the so called complete set of documents filed by the respondent in support of his income affidavit was still incomplete and thus, the petitioner filed a list of missing documents to which the respondent gave an undertaking that after going through the said list, he will file the relevant documents, however, he failed to file the same.
4. Relying upon the decision of the Hon'ble Supreme Court reported as (2021) 2 SCC 324 Rajnesh Vs. Neha & Another, the learned Metropolitan Magistrate vide order dated 10th July 2020 held that the arguments on interim maintenance can be heard on the basis of material on record and adverse inference could be drawn at the time of passing the order. The petitioner challenged the said order dated 10th July 2020 before the learned Sessions Court and thereafter, before this Court. The appeal before this Court was disposed of vide order dated 5th July 2021 when both sides undertook that they will file their requisite affidavits/income documents on record before the learned Trial Court from the year 2015 onwards.
5. Pursuant to the order of this Court dated 5 th July 2021, fresh income affidavits and the documents were filed, however, again the petitioner raised various objections. The petitioner was thus constrained to file another additional affidavit pointing out a comprehensive list of missing documents Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 2 of 21 Signing Date:02.09.2022 19:48:55 deliberately concealed and not filed by the respondent with his income affidavit. While dealing with the objections of the petitioner, the learned Metropolitan Magistrate directed the respondent to file some documents, however, with regard to the other documents, it was held that the same did not concern the respondent. Aggrieved by the said order of the learned Metropolitan Magistrate dated 1st September 2021, the petitioner preferred the appeal before the learned Additional Sessions Judge which was also dismissed vide order dated 17th November 2021. Hence, the present petition.
6. Vide order dated 1st September 2021, the learned Metropolitan Magistrate noted that the objections at serial Nos. 1, 2, 3, 6, 7, 12 to 18 and 23 to 32 stood resolved and the main dispute between the parties now survived in relation to the objections at serial Nos. 4, 5, 8, 9, 10, 11 and 19 to 22.
7. The objections to the documents in respect of serial Nos. 4 and 5 were in relation to the bank account statement qua M/s. Lotus Liaison Pvt. Ltd; serial Nos. 8, 9, 10 and 11 referred to the partnership deeds, bank account statement, ITR and balance sheet of M/s. Anil K.Goyal & Associates; and at serial Nos. 19 to 22 with respect to M/s. Anil K.Goyal and Sons HUF.
8. The learned Metropolitan Magistrate, dealing with the objections raised, held as under:-
"i) As regards the objections raised at Sr. Nos. 4 and 5 with respect to bank account statement of M/s Lotus Liason Pvt. Ltd., it is held that once the audited financial statements of the said company are placed on record in terms of part I of Enclosure 1 of the above judgment, there is no requirement for filing the bank account statements.
ii) As regards the objection at Sr. Nos. 8, 9, 10 and 11 qua Anil K. Goyal & Associates, in terms of part I of Enclosure 1, what is Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 3 of 21 Signing Date:02.09.2022 19:48:55 required to be filed by respondent no. 1 is partnership deed (to specify his share in the profit and losses of the partnership) and income tax returns of partnership firm for the last few years when the respondent no. 1 was a partner therein. No other document is required to be filed in respect of the said firm. Let the partnership deed and ITR be filed within one week with copy to the other side.
iii) Lastly, as regards the objections at Sr. No. 19, 20, 21, 22, with respect to M/s Anil K. Goyal and Sons HUF, as it is the case of respondent no. 1 that he does not have any share in the Anil K Goyal and Sons HUF, there is no need for filing of any documents in respect of the said concern, as no material to the contrary has been brought on record by the aggrieved.
Objections of the aggrieved are disposed of in the abovesaid terms. Let the documents as stated above be filed within 1 week".
9. Hon'ble Supreme Court in Rajnesh Vs. Neha (supra) while laying down uniform guidelines applicable to grant of interim and final maintenance held as under:-
"61. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the court concerned in the previous proceeding.
II. Payment of Interim Maintenance
62. The proviso to Section 24 of the HMA (inserted vide Act 49 of 2001 w.e.f. 24-9-2001), and the third proviso to Section 125 CrPC (inserted vide Act 50 of 2001 w.e.f. 24-9-2001) provide that the proceedings for interim maintenance, shall as far as possible, be disposed of within 60 days from the date of service of notice on the contesting spouse. Despite the statutory provisions granting a Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 4 of 21 Signing Date:02.09.2022 19:48:55 time-bound period for disposal of proceedings for interim maintenance, we find that applications remain pending for several years in most of the cases. The delays are caused by various factors, such as tremendous docket pressure on the Family Courts, repetitive adjournments sought by parties, enormous time taken for completion of pleadings at the interim stage itself, etc. Pendency of applications for maintenance at the interim stage for several years defeats the very object of the legislation.
63. At present, the issue of interim maintenance is decided on the basis of pleadings, where some amount of guesswork or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of interim maintenance. While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income. It has therefore become necessary to lay down a procedure to streamline the proceedings, since a dependent wife, who has no other source of income, has to take recourse to borrowings from her parents/relatives during the interregnum to sustain herself and the minor children, till she begins receiving interim maintenance.
64. In the first instance, the Family Court in compliance with the mandate of Section 9 of the Family Courts Act, 1984 must make an endeavour for settlement of the disputes. For this, Section 6 provides that the State Government shall, in consultation with the High Court, make provision for counsellors to assist a Family Court in the discharge of its functions. Given the large and growing percentage of matrimonial litigation, it has become necessary that the provisions of Sections 5 and 6 of the Family Courts Act are given effect to, by providing for the appointment of marriage counsellors in every Family Court, which would help in the process of settlement. If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.
Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 5 of 21 Signing Date:02.09.2022 19:48:55
65. The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, along with an Affidavit of Disclosure of Assets and Liabilities before the court concerned, as a mandatory requirement. On the basis of the pleadings filed by both parties and the Affidavits of Disclosure, the court would be in a position to make an objective assessment of the approximate amount to be awarded towards maintenance at the interim stage.
XXX XXX XXX
67. Given the vastly divergent demographic profile of our country, which comprises of metropolitan cities, urban areas, rural areas, tribal areas, etc. it was considered appropriate to elicit responses from the various State Legal Services Authorities ("SLSAs"). This Court vide its order dated 17-12-2019 [Rajnesh v. Neha, 2019 SCC OnLine SC 1918] requested the National Legal Services Authority ("NALSA") to submit a report of the suggestions received from the SLSAs for framing guidelines on the Affidavit of Disclosure of the Assets and Liabilities to be filed by the parties.
68. The NALSA submitted a comprehensive report dated 17-2- 2020 containing suggestions from all the State Legal Services Authorities throughout the country. We find the various suggestions made by the SLSAs to be of great assistance in finalising the Affidavit of Disclosure which can be used by the Family Courts for determining the quantum of maintenance to be paid.
69. Keeping in mind the varied landscape of the country, and the recommendations made by the SLSAs, it was submitted that a simplified Affidavit of Disclosure may be framed to expedite the process of determining the quantum of maintenance.
70. We feel that the affidavit to be filed by parties residing in urban areas, would require to be entirely different from the one applicable to rural areas, or tribal areas. For this purpose, a comprehensive Affidavit of Disclosure of Assets and Liabilities is Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 6 of 21 Signing Date:02.09.2022 19:48:55 being attached as Enclosures I [ Set out at pp. 384 et. seq., below.] and II [ Set out at pp. 389-390, below.] to this judgment.
71. We have been informed by the Meghalaya State Legal Services Authority that the State of Meghalaya has a predominantly tribal population, which follows a matrilineal system of society. The population is comprised of three tribes viz. the Khasis, Jaintia and Garo tribes. In Meghalaya, the youngest daughter is the custodian of the property, and takes important decisions relating to family property in consultation with her maternal uncle. The majority of the population is employed in the unorganised sector, such as agriculture. Under Section 10(26) of the Income Tax Act, 1961, the tribals residing in this State are exempted from payment of income tax. The Meghalaya State Legal Services Authority has suggested that the declaration in Meghalaya be made in the format enclosed with this judgment as Enclosure III [ Set out at pp. 390 et. seq. below.] .
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 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 Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 7 of 21 Signing Date:02.09.2022 19:48:55 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.
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.
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 Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 8 of 21 Signing Date:02.09.2022 19:48:55 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.
XXX XXX XXX III. Criteria for determining quantum of maintenance
77. The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
78. The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290] Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 9 of 21 Signing Date:02.09.2022 19:48:55
79. In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it.
80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able- bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]
81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 10 of 21 Signing Date:02.09.2022 19:48:55 should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
82. Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of the HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.
83. Section 20(2) of the DV Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
84. The Delhi High Court in Bharat Hegde v. Saroj Hegde [Bharat Hegde v. Saroj Hegde, 2007 SCC OnLine Del 622 : (2007) 140 DLT 16] laid down the following factors to be considered for determining maintenance : (SCC OnLine Del para
8) "1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 11 of 21 Signing Date:02.09.2022 19:48:55
11. The amount awarded under Section 125 CrPC is adjustable against the amount awarded under Section 24 of the Act."
85. Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties
86. In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and retrain herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependent wife to get an easy entry into the workforce after a break of several years.
(b) Right to residence
87. Section 17 of the DV Act grants an aggrieved woman the right to live in the "shared household". Section 2(s) defines "shared household" to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.
88. The right of a woman to reside in a "shared household" defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v. Sneha Ahuja [Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, by a Bench comprising of Hon'ble Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ.] held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 12 of 21 Signing Date:02.09.2022 19:48:55 household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a "shared household". It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a "shared household". Section 2(s) read with Sections 17 and 19 of the DV Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.
89. Section 19(1)(f) of the DV Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
(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 [Shailja v. Khobbanna, (2018) 12 SCC 199 : (2018) 5 SCC (Civ) 308; See also the decision of the Karnataka High Court in P. Suresh v. S. Deepa, 2016 SCC OnLine Kar 8848 : 2016 Cri LJ 4794 (Kar)] , 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. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] Sustenance does not mean, and cannot be allowed to mean mere survival. [Vipul Lakhanpal v. Pooja Sharma, 2015 SCC OnLine HP 1252 : 2015 Cri LJ 3451] Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 13 of 21 Signing Date:02.09.2022 19:48:55 90.2. In Sunita Kachwaha v. Anil Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] 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. 90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale [Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694] while relying upon the judgment in Sunita Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] , 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 [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] . 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 [Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 : (2015) 3 SCC (Civ) 274 : (2015) 2 SCC (Cri) 785] cited the judgment in Chander Parkash [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife."
Enclosure I Affidavit of Assets and Liabilities for Non-Agrarian Deponents I _________, d/o _______ or s/o______, aged about ______years, resident of______, do hereby solemnly affirm and declare as under: Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 14 of 21 Signing Date:02.09.2022 19:48:55 A. Personal Information
1. Name:
2. Age/Sex:
3. Qualifications (Educational and Professional):
4. Whether the Applicant is staying in the matrimonial house/parental home/separate residence. Please provide the current residential address of matrimonial home or place of residence and details of ownership of residence, if owned by other family member.
5. Date of marriage:
6. Date of separation:
7. General monthly expenses of the Applicant (rent, household expenses, medical bills, transportation, etc.): B. Details of Legal Proceedings and Maintenance being paid
1. Particulars of any ongoing or past legal proceedings with respect to maintenance or child support between the Applicant and Non- Applicant.
2. Whether any maintenance has been awarded in any proceeding arising under the DV Act, CrPC, HMA, HAMA, etc.? If yes, provide details of the quantum of maintenance awarded in the proceedings.
3. If so, provide particulars thereof, along with a copy of the order(s) passed.
4. Whether the order of maintenance passed in earlier proceedings has been complied with. If not, arrears of maintenance.
5. Whether any voluntary contribution towards maintenance has been made/will be made in the future? If yes, provide details of the same.
C. Details of dependent family members
1. Details of dependent family members, if any.
(a) Relationship with dependants:
(b) Age and sex of dependant(s):
2. Disclose if any independent source(s) of income of the dependants, including interest income, assets, pension, tax liability on any such income and any other relevant details.
3. The approximate expenses incurred on account of the dependant. D. Medical details if any, of the deponent and/or dependent family members Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 15 of 21 Signing Date:02.09.2022 19:48:55
1. Whether either party or child/children is suffering from any physical/mental disability, or any other serious ailment. If yes, produce medical records.
2. Whether any dependent family member has serious disability, requiring continuous medical expenditure. If yes, produce disability certificate and approximate medical expenditure incurred on such medical treatment.
3. Whether either party or child/children or any other dependent family member is suffering from life-threatening diseases, which would entail expensive and regular medical expenditure? If yes, provide details of the same along with summary of previous details of hospitalisation/medical expenses incurred. E. Details of children of the parties
1. Number of children from the existing marriage/marital relationship/previous marriage.
2. Name and age of children.
3. Details of the parent who has the custody of the children.
4. Expenditure for maintenance of dependent children.
(a) Towards food, clothing and medical expenses.
(b) Towards expenses for education, and a summary of general expenses.
(c) Towards expenses, if any, of any extra educational, vocational or professional/educational course, specialised training or special skills programme of dependent children.
(d) Details of any loan, mortgage, charge incurred or instalment plan (being paid or payable), if any, on account of any educational expenses of children.
5. Whether any voluntary contribution by either of the parties is being made towards these educational expenses? If yes, provide details of the same. Also provide an estimate of any additional contribution that may be required.
6. Whether any financial support is being provided by a third party for the educational expenses of the children? F. Details of Income of the Deponent
1. Name of employer:
2. Designation:
3. Monthly income:
Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 16 of 21 Signing Date:02.09.2022 19:48:55
4. If engaged in government service, furnish latest salary certificates or current pay slips or proof of deposit in bank account, if being remitted directly by employer.
5. If engaged in the private sector, furnish a certificate provided by the employer stating the designation and gross monthly income of such person, and Form 16 for the relevant period of current employment.
6. If any perquisites, benefits, house rent allowance, travel allowance, dearness allowance or any other service benefit is being provided by the employer during the course of current employment.
7. Whether assessed to income tax?
If yes, submit copies of the Income Tax Returns for the periods given below:
(i) One year prior to marriage
(ii) One year prior to separation
(iii) At the time when the application for maintenance is filed
8. Income from other sources, such as rent, interest, shares, dividends, capital gains, FDRs, Post office deposits, mutual funds, stocks, debentures, agriculture, or business, if any, along with TDS in respect of any such income.
9. Furnish copies of bank statement of all accounts for the last 3 years.
G. Assets (movable and immovable) owned by the Deponent
1. Self-acquired property, if any:
2. Properties jointly owned by the parties after marriage:
3. Share in any ancestral property:
4. Other joint properties of the parties (accounts/investments/FDR/mutual funds, stocks, debentures, etc.), their value and status of possession:
5. Status of possession of immovable property and details of rent, if leased:
6. Details of loans taken or given by the Deponent:
7. Brief description of jewellery and ornaments of parties acquired during/after marriage:
8. Details of transfer deeds or transactions of alienation of properties previously owned by the applicant, executed during the subsistence of the marriage. Also provide brief reasons for such sale or transaction, if any.
Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 17 of 21 Signing Date:02.09.2022 19:48:55 H. Details of Liabilities of the Deponent
1. Loans, liabilities, mortgage, or charge outstanding against the Deponent, if any.
2. Details of any EMIs being paid.
3. Date and purpose of taking loan or incurring any such liability:
4. Actual amount borrowed, if any, and the amount paid up to date of filing the Affidavit:
5. Any other information which would be relevant to describe current liabilities of the Deponent.
I. Self-employed persons/Professionals/Business Persons/Entrepreneur
1. Brief description of nature of business/profession/vocation/self-
employed/work activity.
2. Whether the business/profession/self-employment is carried on as an individual, sole proprietorship concern, partnership concern, LLP, company or association of persons, HUF, joint family business or any other form? Give particulars of Applicant's share in the partnership/business/professional association/self- employment. In case of partnership, specify the share in the profit/losses of the partnership.
3. Net Income from the business/profession/partnership/self-
employment.
4. Business/partnership/self-employment liabilities, if any, in case of such activity.
5. In case of business of company, provide brief details of last audited balance sheet to indicate profit and loss of the company in which such party is in business in the company.
6. In case of a partnership firm, provide details of the filings of the last Income Tax Return of partnership.
7. In case of self-employed individual, provide the filings of the last Income Tax Return from any such professional/business/vocational activity.
J. Information provided by the Deponent with respect to the income, assets and liabilities of the other Spouse
1. Educational and professional qualifications of the other spouse:
Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 18 of 21 Signing Date:02.09.2022 19:48:55
2. Whether spouse is earning? If so, give particulars of the occupation and income of the spouse.
3. If not, whether he/she is staying in his/her own accommodation, or in a rented accommodation or in accommodation provided by employer/business/partnership?
4. Particulars of assets and liabilities of spouse as known to the deponent, along with any supporting documents. K. Details of Applicant or the other Spouse, in case parties are Non- Resident Indians, Overseas Citizens of India, Foreign Nationals or Persons living abroad outside India
1. Details of Citizenship, Nationality and current place of residence, if the Applicant or other spouse is residing abroad outside India, temporarily or permanently.
2. Details of current employment and latest income in foreign currency of such applicant/spouse, duly supported by relevant documentation of employment and income from such foreign employer or overseas institution by way of employment letter or testimonial from foreign employer or overseas institution or latest relevant bank statement.
3. Details of household and other expenditure of such applicant/spouse in foreign jurisdiction.
4. Details of tax liability of applicant/other spouse in foreign jurisdiction.
5. Details of income of applicant/other spouse from other sources in India/foreign jurisdiction.
6. Details of expenses incurred or contribution made on account of spousal maintenance, child support or any other educational expenses, medical treatment of spouse or children.
7. Any other relevant detail of expenses or liabilities, not covered under any of the above headings and any other liabilities to any other dependent family members in India or abroad.
Declaration
1. I declare that I have made a full and accurate disclosure of my income, expenditure, assets and liabilities from all sources. I further declare that I have no assets, income, expenditure and liabilities other than as stated in this affidavit.
Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 19 of 21 Signing Date:02.09.2022 19:48:55
2. I undertake to inform this Court immediately with respect to any material change in my employment, assets, income, expenses or any other information included in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt of court, may also constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code punishable with imprisonment up to seven years and fine, and Section 209 of the Indian Penal Code punishable with imprisonment up to two years and fine. I have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860.
DEPONENT Verification Verified at ___on this _____day of _____ that the contents of the above affidavit are true to my personal knowledge, no part of it is false and nothing material has been concealed therefrom, whereas the contents of the above affidavit relating to the assets, income and expenditure of my spouse are based on information believed to be true on the basis of record. I further verify that the copies of the documents filed along with the affidavit are the copies of the originals.
DEPONENT
10. Clause I (2) of Enclosure I provides that in case of a company, the share of the deponent be indicated and the audited financial statement be file. Thus, once the audited financial statements of the company M/s. Lotus Liaison Pvt. Ltd. has been placed on record and in view of the share of the appellant being none, no further requirement of filing the bank account statements arose and thus, the objection was rightly rejected. Further, with regard to the partnership in the name of M/s. Anil K.Goyal & Associates is concerned, the Court directed the respondent to file the partnership deed and the ITRs within one week and as regards the income from M/s. Anil K.Goyal and Sons HUF is concerned, since the respondent stated that he has no share and concern in the said HUF, learned Metropolitan Magistrate Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 20 of 21 Signing Date:02.09.2022 19:48:55 deemed it fit to not pass any further orders. Even going by the guidelines laid down in Rajnesh Vs. Neha (supra) as adverted to by the learned counsel for the petitioner, this Court is of the considered view that no further directions can be passed to the respondent to file further documents. Needless to note that in case the petitioner makes out a case of concealment, besides drawing adverse influence, the learned Magistrate would be competent to pass appropriate orders.
11. Petition is accordingly dismissed.
CRL.M.A. 19758/2021 (stay) In view of the order passed in petition, the application is dismissed as infructuous.
(MUKTA GUPTA) JUDGE SEPTEMBER 02, 2022/akb Signature Not Verified Digitally Signed By:ATISH GOEL CRL.M.C. 3202/2021 Page 21 of 21 Signing Date:02.09.2022 19:48:55