Gujarat High Court
Shaily Kunal Agrawal D/O Sanjaybhai ... vs Kunal Nandlal Agrawal on 19 December, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1820 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/FIRST APPEAL NO. 1820 of 2023
================================================================
SHAILY KUNAL AGRAWAL D/O SANJAYBHAI BADRINARAYAN ALOK
Versus
KUNAL NANDLAL AGRAWAL
================================================================
Appearance:
MR JAL UNWALA SR. ADVOCATE with MS ZEAL H SHAH(9811) for the
Appellant(s) No. 1
MR ND NANAVATI SR. ADVOCATE with MS DISHA N NANAVATY(2957) for
the Defendant(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 19/12/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Present appeal is filed under Section 19 of the Family
Courts Act, 1984 read with Section 96 of the Civil Procedure
Code, 1908 challenging the impugned order dated 06.03.2023
passed by the learned Judge, Family Court No.4, Ahmedabad
below application at Exhibit 45 in Family Suit No.1963 of 2021
for production of documents from the respondent whereby the
learned Judge rejected the said application.
2. Being aggrieved and dissatisfied with the impugned order,
the appellant has preferred the present appeal.
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
3. We have heard learned senior counsel appearing on behalf
of the respective parties and on broad consensus arrived at
between the parties, it appears that the documents which were
required to be produced before the Family Court. In view of the
direction issued by the Hon'ble Supreme Court in the case of
Rajesh Vs. Nena and another reported in (2021) 2 SCC 324,
the respondent has filed an affidavit along with the documents
before this Court, however, such documents were not produced
before the Family Court and, therefore, the appellant has
preferred an application below Exhibit 45 for production of
documents. In the affidavit filed by the respondent, it is
specifically mentioned that the respondent is ready to produce
documents before the Family Court, which are produced before
this Court along with the affidavit.
4. In the case of Rajesh (supra), the Hon'ble Supreme Court
has held and observed in para - 32, 36, 57, 62, 63, 72, 76 and
127 as under:-
"32. Chapter IX of Code of Criminal Procedure, 1973 provides
for maintenance of wife, children and parents in a summary
proceeding. Maintenance under Section 125 of the Cr.P.C. may
be claimed by a person irrespective of the religious community
to which they belong. The purpose and object of Section 125
Cr.P.C. is to provide immediate relief to an applicant. An
application under Section 125 Cr.P.C. is predicated on two
conditions : (i) the husband has sufficient means; and (ii)
"neglects" to maintain his wife, who is unable to maintain
herself. In such a case, the husband may be directed by the
Magistrate to pay such monthly sum to the wife, as deemed fit.
Maintenance is awarded on the basis of the financial capacity of
the husband and other relevant factors.
36. The amended Section 125 reads as under :
"125. Order for maintenance of wives, children and
parents.
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
(1) If any person having sufficient means neglects or refuses to
maintain-
(a) his wife, unable to maintain herself or
(b) his legitimate or illegitimate minor child, whether married or
not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is, by
reason of any physical or mental abnormality or injury unable to
maintain itself or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or
refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother, at such
monthly rate as such Magistrate thinks fit, and to pay the same
to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor
female child referred to in clause (b) to make such allowance,
until she attains her majority, if the Magistrate is satisfied that
the husband of such minor female child, if married, is not
possessed of sufficient means :
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 allow 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 of 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 to such person.
Explanation. -For the purposes of this Chapter, -
(a) "minor" means a person who, under the provisions of the
Indian Majority Act, 1875 (9 of 1875); is deemed not to have
attained his majority;
(b) "wife" includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
maintenance and expenses of proceeding shall be payable from
the date of the order, or, if so ordered, from the date of the
application for maintenance or interim maintenance and
expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to
comply with the order, any such Magistrate may, for every
breach of the order, issue a warrant for levying the amount due
in the manner provided for levying fines, and may sentence
such person, for the whole, or any part of each month's
allowance for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be, remaining unpaid
after the execution of the warrant, to imprisonment for a term
which may extend to one month or until payment if sooner
made:
Provided that no warrant shall be issued for the recovery of any
amount due under this section unless application be made to
the Court to levy such amount within a period of one year from
the date on which it became due:
Provided further that if such person offers to maintain his wife
on condition of her living with him, and she refuses to live with
him, such Magistrate may consider any grounds of refusal stated
by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there is just
ground for so doing.
Explanation. - If a husband has contracted marriage with
another woman or keeps a mistress, it shall be considered to be
a just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the
maintenance or interim maintenance and expenses of
proceeding, as the case may be, from her husband under this
section if she is living in adultery, or if, without any sufficient
reason, she refuses to live with her husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order has been
made under this section is living in adultery, or that without
sufficient reason she refuses to live with her husband, or that
they are living separately by mutual consent, the Magistrate
shall cancel the order. " (emphasis supplied).
The issue whether maintenance u/S. 125 Cr.P.C. could be
awarded by the Magistrate, after permanent alimony was
granted to the wife in the divorce proceedings, came up for
consideration before the Supreme Court in Rakesh Malhotra
vs. Krishna Malhotra., 2020 SCC Online SC 239 . The Court
held that once an order for permanent alimony was passed, the
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
same could be modified by the same court by exercising its
power u/S. 25(2) of HMA. The Court held that: (SCC OnLine SC
para 16)
"16. Since the Parliament has empowered the Court Under
Section 25(2) of the Act and kept a remedy intact and made
available to the concerned party seeking modification, the
logical sequitur would be that the remedy so prescribed ought to
be exercised rather than creating multiple channels of remedy
seeking maintenance. One can understand the situation where
considering the exigencies of the situation and urgency in the
matter, a wife initially prefers an application Under Section 125
of the Code to secure maintenance in order to sustain herself. In
such matters the wife would certainly be entitled to have a full-
fledged adjudication in the form of any challenge raised before a
Competent Court either under the Act Or similar such
enactments. But the reverse cannot be the accepted norm. "
The Court directed that the application u/S. 125 Cr.P.C. be
treated as an application u/S. 25(2) of HMA and be disposed of
accordingly.
62. The proviso to Section 24 of the HMA (inserted vide Act 49
of 2001 w.e.f 24.09.2001), and the third proviso to Section 125
Cr.P.C. (inserted vide Act 50 of 2001 w.e.f. 24.09.2001) 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 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 guess-work 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
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
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 dependant 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.
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
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. 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
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
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 (j) The concerned Family Court / District Court /
Magistrate's Court must make an endeavour to decide the LA.
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.
76. If there are any trust funds / investments created by any
spouse / grandparents in favour of the children, this would also
be taken into consideration while deciding the final child
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
support.
127. In view of the foregoing discussion as contained in Part B -
1 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
concerned Family Court / District Court / Magistrates Court, 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
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
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 concerned Court 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 28A of the Hindu Marriage Act, 1956;
Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C, 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 r.w. Order XXI."
5. In view of the above referred concluding paragraph/s of the
Hon'ble Supreme Court and the guidelines issued by the Hon'ble
Supreme Court, ultimately we are concluding as under:-
5.1 In view of the aforesaid proposition delivered by the
Hon'ble Supreme Court, learned senior advocate appearing for
the respondent has submitted that the affidavit and the
documents which are produced in the appeal will be produced by
the respondent before the concerned Court for effective
proceeding with the main application and if any other document
which is desirable by the Court and even if not available, will be
produced before the Court and based upon the same,
appropriate decision will be taken in accordance with law after
NEUTRAL CITATION
C/FA/1820/2023 ORDER DATED: 19/12/2023
undefined
giving sufficient opportunity to both the sides. It has been
observed that it is always open for the Court to take appropriate
decision in case any document if not available on record and as
such keeping this submission in mind, learned advocate
appearing for the appellant has requested the Court to permit
the appellant not to press the appeal in view of the above
mentioned stand taken by the respondent. It is also observed
that if any document is left out, according to the appellant and if
necessary, an appropriate request can always be made and in
case of non-availability, the concerned Family Court can take
appropriate decision and accordingly, learned advocate for the
appellant does not press this appeal.
5.2 We make it clear that since present order is passed with
broad consensus and no reasons are called for, we express no
opinion on merit and accordingly, the appeal stands disposed of
as not pressed.
5.3 In view of the fact that the main appeal is disposed of as
not pressed, the civil application does not survive for further
consideration and accordingly, the same stands disposed of.
(ASHUTOSH SHASTRI, J)
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
