Anubhav Verma vs Principal Judge Family Court ...
2022 Latest Caselaw 140 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Judgement reserved on 01-02-2022
 
Judgement delivered  through Video Conferencing on 25-02-2022
 

 

 
Case - CRIMINAL REVISION No. - 801 of 2021
 
Revisionist - Anubhav Verma
 
Opposite Party - Principal Judge Family Court Faizabad And Ors.
 
Counsel for Revisionist - Ashok Kumar Verma
 
Counsel for Opposite Party - Vaibhav Srivastava
 

 
Hon'ble Subhash Vidyarthi J.
 

 
1.	Heard Mr. Ashok Kumar Verma, learned counsel for the revisionist and Mr. Vaibhav Srivastava, learned counsel for the opposite parties no.2 and 3.
 
2.	By means of the instant revision filed under Section 19(4) of the Family Courts Act read with Section 397/401 of Code of Criminal Procedure, the revisionist has challenged the order dated 13.08.2021 passed by the Principal Judge, Family Court, Faizabad in Case No.187 of 2020 (Smt. Samiksha Saran & Another Vs. Anubhav Verma), whereby the application filed by the opposite party no. 2 seeking interim maintenance from the revisionist has been decided and as against the demand of Rs.50,000/- per month towards maintenance of the opposite party nos.2 and 3 who are the wife and the minor daughter of the revisionist,  the learned Principal Judge, Family Court has directed the revisionist to pay a sum of Rs.15,000/- per month to his wife and Rs.15,000/- per month to his daughter. He has also challenged the order dated 27-09-2021, whereby the Family Court has rejected his application "FOR REVIEW AND SET ASIDE THE INTERIM MAINTENANCE ORDER PASSED ON 13.08.2021".
 
3.	The revisionist has contended that the Principal Judge, Family Court has not provided him a proper opportunity of hearing. After service of summons of the case, the revisionist put in appearance for the first time on 08-01-2021, on which date he was supplied copies of the application for maintenance, affidavit in support of the same and the application for interim maintenance without the affidavit as required as per the guidelines formulated by the Hon'ble Apex Court in the case of Rajnesh Vs. Neha , (2021) 2 SCC 324.
 
4.	His submission is that the opposite party no. 2 filed an affidavit dated 16-02-2021 in compliance of the aforesaid judgment, without filing any document as required in law and various contents necessarily required were not correctly stated in the affidavit. The opposite party no. 2 filed some documents on 12-08-2021, which were not relevant for adjudication of the quantum of interim maintenance. Although the revisionist sought an adjournment on 13-08-2021, the learned Principal Judge passed an order awarding interim maintenance. While passing the order of interim maintenance, the learned Principal Judge has not recorded a finding as to whether the opposite party no. 2 is legally entitled to receive interim maintenance.
 
5.	On 04-09-2021 the revisionist filed an application before the Principal Judge, Family Court for setting aside the order dated 13-08-2021 and to provide opportunity of hearing but the same was rejected by means of an order dated 27-09-2021.
 
6.	While challenging the aforesaid orders, the revisionist has submitted that if he is compelled to pay the interim maintenance awarded to the opposite party nos. 2 and 3, it will be very harsh and difficult for him to pay the EMI's of Rs.31,068/- payable against the Housing Loan (in the joint names of revisionist and the opposite party no. 2), which is being paid by the revisionist alone. The revisionist, being the only son of his parents, is bearing the responsibility of his younger sister who is about to get married and he has to bear the expenses of his father who has undergone a major surgery of Fistula and earlier has undergone a major bypass heart surgery in the year 2017. His mother is suffering from high blood pressure and is diabetic whose medical expenses are also borne by the revisionist.
 
7.	The revisionist has filed a written statement in reply to the application under Section 125 Cr.P.C. and he has filed objections against the application for interim maintenance on 16-03-2021.
 
8.	On 13-08-2021 the revisionist filed an application for adjournment of the case on the ground that he had engaged a new counsel. The said application was rejected by the Principal Judge, Family Court for the reason that there was no sufficient ground for adjournment. 
 
9.	The second and the third Provisos appended to Section 125 provide as follows: 
 
"Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
 
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application such person."
 

 
10.	Thus there is a statutory mandate that the applications for interim maintenance have to be disposed off within a period of sixty days from the date of service of notice of the application on the respondent. Moreover, engagement of a new counsel does not give a right to a party to stall the proceedings of the case. Therefore, the Family Court did not commit any illegality in rejecting the application for adjournment filed on the ground of engagement of a new Counsel.

11. The order dated 13-08-2021 passed on the application for interim maintenance also records that the parties were heard on the application for interim maintenance. The learned Principal Judge has recorded the submissions made on behalf of the revisionist that the opposite party no. 2 holds a degree of M.B.A. and she is working in a private company and is earning Rs.40,000/- to 50,000/- per month. She has her own house and two plots in Ayodhya. Since imposition of lockdown in March 2020, the revisionist is being paid 60 per cent of his salary and his job is not permanent. He does not have any agricultural land or business. He has to bear the responsibility of his old and ailing parents. He has also submitted that he continuously keeps on visiting the opposite party no. 2 and pays her the monthly expenses and he also pays the school fees of the opposite party no. 3, instalment of housing loan and mobile bill of the opposite party no. 2.

12. The learned Principal Judge, Family Court has recorded in the order that from the money order receipts filed by the revisionist it appears that he has sent a total amount of Rs.13,500/- to the opposite party no. 2 in five instalments between 05-09-2020 to 08-03-2021. The documents filed by him to prove the employment of the opposite party no. 2 relate to the year 2014 and November 2018. In her affidavit of assets of liabilities filed before the learned Principal Judge, the opposite party no. 2 has stated that earlier she was in a private job at NOIDA but presently she is not earning.

13. The Family Court has also taken into consideration the contention of the opposite party no. 2 that the revisionist's father was employed in police department and he is not financially dependent upon the revisionist. The Family Court has also recorded that the details of bank account furnished by the revisionist discloses only the amounts withdrawn and it does not contain details of the amount credited to his account which indicates that the revisionist is concealing the correct particulars of his income from the Court.

14. After taking into consideration the aforesaid facts, the Family Court has partly allowed the application for interim maintenance awarding a sum of Rs.15,000/- only to the opposite party no. 2 and Rs.15,000/- per month to the opposite party no.3 and in view of the aforesaid discussions the order does not appear to be either having been passed without giving an adequate opportunity on suffering from any illegality or infirmity.

15. Shri A. K. Verma, learned counsel for the revisionist has submitted that the learned Principal Judge, Family Court has completely ignored the direction issued by the Hon'ble Supreme Court in Rajnesh (Supra), wherein it has been held that the party claiming maintenance should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before the concerned court. 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. Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, the Hon'ble Supreme Court framed the following guidelines: -

(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 concerned Family Court / District Court / Magistrate's Court, 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.32 On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;

(72.4)(d) The above format may be modified by the concerned Court, 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 concerned Court 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 of the 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)(k) The concerned Family Court / District Court / Magistrate's Court must make an endeavour to decide the I.A. 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) A professional Marriage Counsellor must be made available in every Family Court.

16. Shri A. K. Verma, has submitted that the opposite party no. 2 had filed only an incomplete affidavit of disclosure of income and liabilities without the requisite documents.

17. Copy of the aforesaid affidavit of the opposite party no. 2 was served upon the revisionist on 16-02-2021 itself. As per the guidelines issued by the Hon'ble Supreme Court contained in para 72.3 of the judgment in Rajnesh (Supra), it was obligatory upon the revisionist to submit his reply along with the affidavit of disclosure within a maximum period of four weeks. The Courts have been prohibited against granting more than two opportunities for submission of the affidavit of disclosure of assets and liabilities to the respondents.

18. In the present case, although a copy of the affidavit of assets and liabilities of the opposite party no. 2 were served upon the revisionist on 16-02-2021 and the period of four weeks stipulated in Rajnesh (Supra) expired on 16-03-2021, the applicant did not file his affidavit of assets and liabilities as mandated by the Hon'ble Supreme Court in the aforesaid case and the same was prepared on 26th of October 2021 i.e. after expiry of more than eight months since a copy of the affidavit of the opposite party no.2 was provided to him and after expiry of more than two months since passing of the order dated 13-08-2021 awarding interim maintenace to the opposite parties no. 2 and 3.

19. When the revisionist himself has opted not to file his affidavit of assets and liabilities before the Family Court as mandated by the Hon'ble Supreme Court in Rajnesh (Supra) and when after rejection of his application for adjournment filed on 13-08-2021, the learned counsel for the revisionist made submissions in opposition to the application for grant of interim maintenance, the order dated 13-08-2021 passed by the Principal Judge, Family Court awarding interim maintenance to the opposite party nos. 2 and 3 after taking into consideration the objections of the revisionist as well as the submissions made on his behalf, cannot be termed to have been passed without giving a proper opportunity of hearing to the revisionist.

20. On 04-09-2021 the revisionist filed an application for setting aside the aforesaid order dated 13.08.2021 on the ground that the said order has been passed without keeping in view the order passed by Rajnesh (Supra). The application does not disclose the provisions of law under which it has been filed, apparently because the order having been passed after taking into consideration the objections filed by the revisionist against the application for interim maintenance as also the submissions made on his behalf by his learned counsel in opposition to the aforesaid claim, is not an ex-parte order and there is no provision in law which empowers the Family Court to set aside an order passed by itself on merits of the case after hearing and taking into consideration the submission made by the respective Counsel for the parties.

21. The revisionist has contended in the aforesaid application that he was not granted any opportunity to file his income certificate. He further contended that the opposite party no. 2 is enjoying a lavish life. She is more qualified than the revisionist and she is working as a teacher in Sunbeam School, Ayodhya and earning Rs.13,000/- to Rs.14,000/- per month. His old parents and unmarried sister are dependent on him and he is unable to pay Rs.30,000/- per month towards interim maintenance.

22. The aforesaid application has been rejected by the Family Court by means of the order dated 27.09.2021 by highlighting the contradictions in two affidavits-19-B and 17-B of the revisionist, in one of which he has alleged that the opposite party no. 2 is working as H.R-cum-Counsellor in Sunbeam School and her earning is Rs.12,500/- to Rs.14,000/- per month while in the other he has stated that she is employed in Duniya Online Pvt. Ltd and earns Rs.40,000/- to Rs.50,000/- per month. The Family Court has held that even if the opposite party no. 2 is earning Rs.12,500/- to Rs14,000/- per month, it would not absolve the revisionist of his liability to pay interim maintenance to the opposite party nos. 2 and 3.

23. The revisionist has filed a copy of his affidavit of assets and liabilities filed before the Family Court in which he has stated that his general monthly expenses (rent, household expenses, medical bills, transportation etc. to be Rs.35,000/- approximately). Against the entry "whether any voluntary contribution towards maintenance has been made/will be made in the future? If yes, provide details of the same". The revisionist has mentioned Rs.19,631/- per month approximately. As against the details of dependant family members he has mentioned the names of his daughter, opposite party no. 3, his father and mother and immediately afterwards where he was required to 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". The revisionist has stated that his father denied disclosing his income as per the Article 21 of the Constitution of India.

24. The revisionist has not stated that his father and mother do not have any income of their own and from his statement it appears that they are in fact not financially dependent on him.

25. In his affidavit of assets and liabilities the revisionist has claimed his monthly income to be Rs. 97,765.00/- per month (in hand) but he has neither disclosed his gross income nor has he filed copies of his salary slip or income tax return from which his gross salary can be ascertained. He has not disclosed the amount which is required to be deducted from his salary mandatorily.

26. In Jasbir Kaur Sehgal v. Distt. Judge, Dehradun, (1997) 7 SCC 7, the Hon'ble Supreme Court was pleased to lay down that "The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions."

(Emphasis supplied)

27. For taking into consideration income of a person for the purpose of fixing maintenance, only such deductions made from his income are to be taken into account as are mandatory. If a person willingly gets a higher amount deducted from his salary than the prescribed minimum statutory deduction, those deductions will not be taken into consideration while fixing the amount of maintenance, so as to justify award of a lower amount as maintenance.

28. Keeping in view of the aforesaid facts and conduct of the revisionist, I am satisfied that when the revisionist had been supplied with a copy of the affidavit of assets and liabilities of the opposite party no. 2 on 16-02-2021 itself, his failure to file an affidavit of his assets and liabilities in response to the same till passing of the order dated 13-08-2021 passed by the Principal Judge, Family Court awarding interim maintenance to the opposite party nos. 2 and 3 cannot be assailed on the ground that no proper opportunity of hearing was granted to the revisionist. The revisionist has filed the application for setting aside the orders dated 13-08-2021 on 04-09-2021 and he did not file his affidavit of assets and liabilities even with this application and he has filed it as late as on 26-10-2021. Even while filing a copy of the affidavit of his assets and liabilities before this court, he has not annexed his salary slips, income tax returns and statements of his bank accounts.

29. A litigant while approaching the High Court for invoking its revisional jurisdiction, must place on record all the material and relevant documents and he cannot be allowed play hide and seek with the Court and this conduct of the revisionist cannot be appreciated.

30. The contention of the revisionist that he has to take care of his parents and sister and for this reason he cannot pay interim maintenance to his wife and daughter cannot be appreciated, more particularly when he has not categorically stated that his parents have no income of their own and they as well as his sister are financially dependent on him. His contention that if he is made to pay the amount of interim maintenance to his wife and daughter, he will not be able to pay the EMI of the housing loan is also not without any force, as providing maintenance to his wife and daughter is the statutory obligation of the revisionist. Keeping in view the fact that the revisionist has stated his in hand monthly income to be Rs.97,765/- and he has not disclosed his gross income, the total amount of 30,000/- per month awarded as interim maintenance to the opposite party nos. 2 and 3 cannot be said to be excessive.

31. By means of the order dated 13-08-2021, the Family Court has merely made an interim arrangement for the maintenance of the opposite parties no. 2 and 3, who are none other than the wife and daughter of the revisionist, which shall obviously be open to be revised when the Family Court decides the Application under Section 125 Cr. P. C. finally. The revisionist himself has pleaded that he keeps on visiting the opposite party no. 2 and pays her the monthly expenses and he is voluntarily paying Rs.19,631/- per month to the opposite party no. 3. In such a factual situation, no reasonable person of ordinary prudence can accept that a person who is voluntarily paying such amounts to his wife and daughter, will be aggrieved by the award of Rs.15,000/- each as interim maintenance to his wife and daughter. The amount of Rs.15,000/- per month each awarded as interim maintenance to the opposite parties no. 2 and 3 does not appear to be suffering from any such illegality as warrants an interference by this Court in exercise of its revisional jurisdiction.

32. In view the aforesaid facts, I am of the view that the impugned orders dated 13.08.2021 and 27.09.2021 passed by the Principal Judge, Family Court, Faizabad in Case No.187 of 2020 do not suffer from any illegality or infirmity. The revision filed against the aforesaid orders lacks merit and it is accordingly dismissed.

Order Date-25-02-2022

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