Gauhati High Court
Debashis Paul vs Smti. Banhisikha Paul Deb on 7 August, 2024
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/5
GAHC010041252024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./245/2024
DEBASHIS PAUL
S/O SRI DILIP KUMAR PAUL, R/O 602-B, PRIYANKA APARTMENT, DINHATA
ROAD, NEAR MORAPARA CHOWPATTY, BESIDE ELECTRICITY OFFICE,
P.O.- COOCHBEHAR, PIN-736101, WEST BENGAL.
VERSUS
SMTI. BANHISIKHA PAUL DEB
D/O SRI BIPLAB DEB, W/O SRI DEBASHIS PAUL, R/O LACHIT NAGAR,
MAHALAYA APARTMENT, 4TH FLOOR, FLAT NO. 4-A, BYE LANE -12,
OPPOSITE BYE LANE NO. 09, P.S.-PALTAN BAZAR, GUWAHATI-781007,
DIST.- KAMRUP (M), ASSAM.
Advocate for the Petitioner : MR C KUMAR, MR. K KASHYAP,MS. V RAI,MR H BETALA
Advocate for the Respondent : ,
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 07.08.2024
Heard Mr. H.Betala, learned counsel for the petitioner.
2. By filing this criminal petition under Sections 401 of the CrPC r/w Section
Page No.# 2/5
19 (4) of the Family Courts Act, 1984, the petitioner has prayed for setting aside
the impugned Judgment and Order dated 11.07.2023 passed by the learned
Principal Judge, Family Court No.2, Kamrup (M) at Guwahati in F.C. (Crl.) Case
No. 548/2019 directing the petitioner to pay an amount Rs. 40,000/- per month
to the respondent as maintenance allowance from the date of order.
3. The opposite party, being the wife of the petitioner had filed an application
under Section 125 CrPC, 1973 before the learned Principal Judge, Family Court
No.2, Kamrup (M), Guwahati in FC (Crl.) Case No. 548/2019 praying for a
decree of maintenance in favour of the respondent/opposite party and her two
daughters.
4. Though the summons were served to the petitioner and subsequently, the
petitioner also filed a petition before the trial court showing his inability to
appear on the date but the trial court observing the continuous absence of the
petitioner/ husband, had proceeded the case ex-parte against him. Thereafter,
the evidence was adduced by the respondent wife. On 27.02.2022, the matter
was fixed for ex-parte argument. On the said date, the petitioner husband had
filed a petition praying for setting aside the ex-parte order dated 01.08.2022 but
the learned trial court did not consider the prayer of the petitioner and finally on
11.07.2023 ex-parte judgment was passed directing the petitioner to pay the
maintenance allowance to his respondent wife and her two daughters as
aforesaid.
5. Learned counsel for the petitioner has submitted that the learned trial
court while passing the ex-parte order on 11.07.2023, has failed to take note of
the vital fact that the decision arrived at in the case is against the guidelines of
the Hon'ble Supreme Court in the case of Rajnesh vs- Neha & anr. reported
in (2021) 2 SCC 324, which makes it mandatory to file an affidavit for
Page No.# 3/5
disclosure of assets and liabilities of the parties in order to arrive at a conclusion
for determining the quantum of maintenance. It is further submitted that as the
order dated 11.07.2023 passed by the trial court is a clear violation of the
guidelines referred in the case of Rajnesh (supra), the order is liable to be set
aside with a direction to decide the matter afresh.
6. By referring the judgment of Aditi @ Mithi vs- Jitesh Sharma reported
in (2023) SCC Online SC 1451, learned counsel for the petitioner has pointed
out that in the said case, the Hon'ble Supreme Court has held that the
guidelines laid down in the case of Rajnesh (supra) has to be followed
mandatorily by all the courts while deciding the case of maintenance.
7. Learned counsel for the petitioner has also contended that it is reflected in
the case of Rajnesh (supra) that in the first instance, the family court in
compliance of the mandate of Section 9 of Family Courts Act, 1984 must make
an endeavour for settlement of the disputes which is not followed in family
courts.
8. Learned counsel for the petitioner also submits that the appointment of
marriage counsellors in every family court is also required. Learned counsel has
also pointed out the paragraph 64 and 65 of the decision of Rajnesh (supra)
which are reproduced as follows:
"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 Section 5 and 6 of the Family Courts Act are
given effect to, by providing for the appointment of marriage counsellors in
Page No.# 4/5
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.
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, alongwith an
Affidavit of Disclosure of Assets and Liabilities before the concerned court, 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."
9. Having heard the learned counsel for the petitioner as well as in view of
the aforesaid legal mandates, the parties are to give declaration about their
income, assets and liabilities before the trial court in deciding the quantum of
maintenance. From the judgment of the trial court dated 11.07.2023, it reveals
that earlier though notice was served to the petitioner but due to his absence
for some days, the matter was proceeded ex-parte and the case was fixed for
ex-parte argument. Though the petitioner filed a petition before the trial court
to vacate the ex-parte order, but the trial court rejected the said petition.
Ultimately, the ex-parte judgment was delivered without determining the
assets and liabilities of the petitioner. The judgment dated 11.07.2023 also
shows that this exercise was not undertaken by the learned trial court in spite of
the binding directions issued by the Hon'ble Supreme Court.
10. As per judgments of the Rajnesh (supra) and Aditi @ Mithi (supra) it was
directed that the financial capacity of the husband, his actual income,
reasonable expenses of his own maintenance and dependant family 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
Page No.# 5/5
be paid.
11. In the case in hand, admittedly, the trial court did not allow the petitioner
to contest the case and to disclose his assets and liabilities which is a gross
violation of the guidelines of the Hon'ble Supreme Court in the aforesaid cases.
12. Hence, the judgment and order dated 11.07.2023 is set aside with a
direction to the trial court to give opportunity to both the parties to submit their
respective affidavits disclosing their assets and liabilities and thereafter, to hear
the matter afresh and to pass necessary order in accordance with law. The
parties are directed to appear before the trial court on or before 02.09.2024 to
take necessary instructions from the trial court to further proceed with the case.
13. If any payment is made by the petitioner, in view of the order dated
11.07.2023, the same shall be adjusted accordingly.
14. It is pertinent to mention here that the learned trial court is directed to
follow the guidelines enumerated by the Hon'ble Supreme Court in the case of
Rajnesh (supra) as reflected in paragraph 64 and 65 as aforesaid.
Criminal petition stands disposed of.
JUDGE
Comparing Assistant
