Ratheesh.S vs Sreelekshmi.S
2025 Latest Caselaw 5155 Ker

Kerala High Court

Ratheesh.S vs Sreelekshmi.S on 14 March, 2025

Author: Kauser Edappagath

Bench: Kauser Edappagath

                                                 2025:KER:22087



            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

  FRIDAY, THE 14TH DAY OF MARCH 2025 / 23RD PHALGUNA, 1946



                    OP(CRL.) NO. 104 OF 2025

  AGAINST THE ORDER DATED 19.11.2022 IN CRL.M.P. NO.295 OF

        2019 IN MC NO.115 OF 2019 OF FAMILY COURT,KOLLAM



PETITIONER/RESPONDENT/RESPONDENT:

           RATHEESH.S
           AGED 45 YEARS
           S/O G.SURENDRAN, OF PADMA BHAVANAM,
           THEKKENADA POST, NADUVILA VILLAGE,
           VAIKOM, PIN - 686141


           BY ADV.
           R.KISHORE



RESPONDENTS/PETITIONERS/PETITIONERS & STATE:

    1      SREELEKSHMI.S
           D/O SREEDEVIAMMA, AGED 33 YEARS,
           KALLUVILAPUTHENVEEDU, PUNUKKANNOOR,
           ALUMMOODU POST, KOTTENKARA VILLAGE,
           PIN - 691577

    2      ADHI NARAYANAN
           S/O SREELEKSHMI.S, AGED 7 YEARS,
           KALLUVILAPUTHENVEEDU, PUNUKKANNOOR,
           ALUMMOODU POST, KOTTENKARA VILLAGE
           REPRESENTED BY HIS GUARDIAN SREELEKSHMI.S
                                                      2025:KER:22087
O.P.(CRL) NO.104 OF 2025
                                  2

         D/O SREEDEVIAMMA, AGED 35 YEARS,
         KALLUVILAPUTHENVEEDU, PUNUKKANNOOR,
         ALUMMOODU POST, KOTTENKARA, PIN - 691577

    3    STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031


         BY ADVS.
         SRI.M.P. PRASANTH, PUBLIC PROSECUTOR
         BINU GEORGE
         HEMALATHA(K/1287/1999)
         AVANI P.S.(K/004719/2024)



     THIS OP    (CRIMINAL) HAVING       COME UP   FOR ADMISSION   ON
14.03.2025,    THE   COURT   ON   THE   SAME   DAY   DELIVERED    THE
FOLLOWING:
                                                 2025:KER:22087
O.P.(CRL) NO.104 OF 2025
                                3

                                                       "C.R."
                           JUDGMENT

This Original Petition has been filed challenging the

interim order of maintenance passed by the Family Court,

Kollam, in a proceeding under Section 125 of the Criminal

Procedure Code (for short, Cr.P.C.).

2. The petitioner is the husband of the 1 st respondent

and the father of the 2nd respondent. The marriage and

paternity are not in dispute. The respondents filed a petition

for maintenance as M. C. No.115/2019 before the Family

Court, Kollam against the petitioner. They also filed an

application for interim maintenance as Crl.M.P. No.295/2019.

The Family Court, after hearing both sides, granted interim

monthly maintenance of Rs.5,000/- (Rupees Five thousand

only) each to respondents 1 and 2. The said order is under

challenge in this Original Petition.

3. I have heard the learned counsel for the petitioner,

Adv. R. Kishore and the learned counsel for respondents 1

and 2, Adv. Binu George.

2025:KER:22087 O.P.(CRL) NO.104 OF 2025

4. The learned counsel for the petitioner submitted

that the impugned order is not sustainable for non-

compliance with the specific direction of the Supreme Court

in Rajnesh v. Neha and Another [(2021) 2 SCC 324]

regarding the requirement of the parties in a proceeding

under Section 125 of Cr.P.C. to file an affidavit disclosing

their assets and liabilities. The learned Counsel for the

respondents 1 and 2, on the other hand, submitted that since

the Family Court has ordered the payment of the interim

maintenance based on all relevant materials, mere failure to

take on record the asset affidavits shall not render its order

invalid.

5. The Supreme Court in Rajnesh (supra) laid down a

procedure to streamline the grant of maintenance in

maintenance proceedings. The Court also set out criteria for

determining the quantum of maintenance, the date from

which maintenance was to be awarded, how to enforce

orders of maintenance, and the fixing of payment of interim

maintenance. Noticing that in maintenance proceedings the 2025:KER:22087 O.P.(CRL) NO.104 OF 2025

wife tends to exaggerate her needs and the husband tends to

conceal his actual income, the Supreme Court made it

mandatory to file an Affidavit of Disclosure of Assets and

Liabilities by the parties in all such proceedings, including

pending proceedings before the Family Court/ District Court/

Magistrate's Court concerned, as the case may be,

throughout the country. A uniform format for the Affidavit of

Disclosure of Assets and Liabilities to be filed in such

proceedings was prescribed. The format of the said affidavit

was annexed as Enclosures I, II and III with the judgment.

Keeping in mind the need for a uniform format of Affidavit of

Disclosure of Assets and Liabilities to be filed in maintenance

proceedings, the Supreme Court framed guidelines in the

exercise of the powers under Article 136 read with Article 142

of the Constitution of India. The guidelines framed by the

Supreme Court are as follows:

"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 mainte- nance proceedings, including pending proceedings before 2025:KER:22087 O.P.(CRL) NO.104 OF 2025

the Family Court / District Court / Magistrate's Court con- cerned, 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 opportuni- ties 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 exer- cising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in de- laying 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 con- cerned to issue necessary directions in this regard. 72.5. (e) If apart from the information contained in the Affi- davits 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 declara- tion made in the Affidavit of Disclosure, the aggrieved party 2025:KER:22087 O.P.(CRL) NO.104 OF 2025

may seek permission of the court to serve interrogatories, and seek production of relevant documents from the oppo- site party under O.11 CPC. On filing of the affidavit, the court may invoke the provisions of O.10 CPC or S.165 of the Evi- dence Act, 1872, if it considers it necessary to do so. The in- come of one party is often not within the knowledge of the other spouse. The court may invoke S.106 of the Evidence Act, 1872 if necessary, since the income, assets and liabili- ties 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 infor- mation 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 mainte- nance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the court may consider initiation of proceeding under S.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 Dis- closure have been filed before the court.

2025:KER:22087 O.P.(CRL) NO.104 OF 2025

72.11. (k) A professional Marriage Counsellor must be made available in every Family Court."

6. A slew of directions in the form of guidelines issued

by the Supreme Court in Rajnesh (supra) and extracted

above are mandatory in nature and must be followed in all

maintenance cases by all Courts dealing with maintenance

throughout the country. The judgment in Rajnesh (supra)

was delivered on 04/11/2020 and the guidelines therein have

been circulated to all the Courts in India for compliance. After

the judgment in Rajnesh (supra) was rendered, the Supreme

Court in the judgment in Aditi Alias Mithi v. Jithesh

Sharma [(2023) SCC OnLine SC 1451] which was delivered

on 06/11/2023 noticed that guidelines in Rajnesh (supra)

have not been followed by many courts in the country while

fixing the maintenance, either interim or final. The Supreme

Court expressed its deep concern in not adhering to the

mandatory guidelines given in Rajnesh (supra) so far as the

requirement of filing the Affidavit of Disclosure is concerned.

Accordingly, the Supreme Court has issued directions to re-

2025:KER:22087 O.P.(CRL) NO.104 OF 2025

circulate a copy of the judgment containing guidelines for

expeditious disposal of cases involving grant of maintenance

to judicial officers in all High Courts across the country.

However, it is quite unfortunate to notice that, despite the

specific directions of the Supreme Court in Rajnesh (supra)

and Aditi Alias Mithi (supra), various Courts in the State,

like in the present one, are passing orders, either interim or

final, fixing maintenance, without there being any Affidavit of

Disclosure on record filed by the parties. This Court can take

judicial notice of the said fact from the number of Original

Petitions [(OP(Crl.)] and Revision Petitions [(RP(FC)] filed

before this Court challenging the interim as well as final order

of maintenance passed without bringing on record the

Affidavit of Disclosure of the parties in terms of the directions

in Rajnesh (supra).

7. Coming to the facts of the case, admittedly,

neither of the parties has filed the disclosure affidavit in

terms of the decision rendered by the Apex Court in Rajnesh

(supra). However, the Family Court disposed of the interim

maintenance application as per the impugned order 2025:KER:22087 O.P.(CRL) NO.104 OF 2025

considering the pleadings. The petitioner herein, while

considering the application for interim maintenance, pointed

before the Family Court that the 1 st respondent did not file

the affidavit showing her assets and liabilities. However, the

Family Court took the view that since the petitioner himself

did not file the affidavit, he could not take up such a

contention. Guideline No.72.1(a) in Rajnesh (supra)

specifically says that the parties in all maintenance

proceedings, including pending proceedings, throughout the

country, shall file an Affidavit of Disclosure of Assets and

Liabilities before the concerned court as a mandatory

requirement. Guideline No.72.2(b) in Rajnesh (supra) makes

it mandatory for the applicant making a claim for

maintenance to file a concise application accompanied by the

Affidavit of Disclosure of Assets . It was further observed that

based on 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. It is

true that guideline No.72.3 says that the respondent also 2025:KER:22087 O.P.(CRL) NO.104 OF 2025

must submit the reply along with the Affidavit of Disclosure

within a maximum period of four weeks, and the court may

not grant more than two opportunities for submission of the

affidavit of Disclosure of Assets and Liabilities to the

respondent. But the mere fact that the petitioner herein did

not file an Affidavit of Disclosure as directed in Rajnesh

(supra) would not absolve the 1 st respondent from filing such

an affidavit. Since the impugned order is passed without the

affidavits of both parties, it cannot be sustained and is liable

to be set aside. The matter is required to be remitted back

for fresh consideration in accordance with the law by

complying with the directions in Rajnesh (supra). The

counsel for the 1st respondent submitted that the 1st

respondent has now filed an Affidavit of Disclosure of Assets

and Liabilities before the Family Court.

In the light of the above findings, this Original Petition

is disposed of as follows:

i. The impugned order granting interim

maintenance is set aside.

2025:KER:22087 O.P.(CRL) NO.104 OF 2025

ii. The parties shall appear before the Family

Court on 20.03.2025.

iii. Crl. M.P. No.295/2019 is remitted to the Family

Court for fresh disposal.

iv. The petitioner shall file an affidavit disclosing

his assets and liabilities in terms of the

directions in Rajnesh (supra) within a period of

ten days from the appearance of the parties

before the Family Court.

v. The Family Court is directed to reconsider the

application for interim maintenance and pass

an order in accordance with law within a period

of two weeks thereafter.

vi. If the petitioner fails to file the affidavit as

directed above, the Family Court is free to pass

order based on the pleadings of the parties and

considering the affidavit filed by the 1st

respondent.

2025:KER:22087 O.P.(CRL) NO.104 OF 2025

vii. In case the Family Court passes an order of

interim maintenance, it shall grant maintenance

with effect from the date of the petition.

viii. All the Courts in the State dealing with

maintenance cases are directed to strictly

follow the guidelines of the Supreme Court in

Rajnesh (supra) that before passing a final

order of maintenance or interim order of

maintenance, the parties should be directed to

file Affidavit of Disclosure of Assets and

Liabilities and the order should be passed based

on the pleadings, evidence as well as the

disclosure made in the affidavits.

ix. The Registry shall forward a copy of this

judgment to all the Courts in the State dealing

with maintenance cases.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE BR 2025:KER:22087 O.P.(CRL) NO.104 OF 2025

APPENDIX OF OP(CRL.) 104/2025

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF ORDER DATED 19/11/2022 PASSED BY THE FAMILY COURT, KOLLAM IN CRL.M.P NO-295/2019 IN MC NO-115/2019 IN THE FILE OF THE SAID COURT.

Exhibit P2 TRUE COPY OF MC-115/2019 IN THE FILE OF THE FAMILY COURT, KOLLAM

Exhibit P3 TRUE COPY OF CRL.M.P NO-295/2019 IN MC NO-115/2019 IN THE FILE OF THE FAMILY COURT, KOLLAM

Exhibit P4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN TO THE SAID CRL.M.P NO-295/2019 IN MC NO-115/2019 IN THE FILE OF THE FAMILY COURT, KOLLAM

Exhibit P5 TRUE COPY OF THE COMPROMISE DATED 12/02/2020 EXECUTED BY THE PETITIONER HEREIN AND THE 1ST RESPONDENT IN MC NO- 115/2019 IN THE FILE OF THE FAMILY COURT, KOLLAM

RESPONDENTS' EXHIBITS: NIL