Ishant Jain vs Roopal Jain
2023 Latest Caselaw 494 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2524/2022

Ishant Jain S/o Vijay Jain, Aged About 38 Years, R/o 605, Kanakiya, 7 Of Marol Road, Saubag, Marol Andheri (East), Mumbai. Permanent R/o House No. 2, Sector 121, Noida Gautam Budh Nagar, Uttarpradesh.

----Petitioner Versus Roopal Jain D/o Shri Vijaraj Jain, Aged About 37 Years, W/o Shri Ishant Jain, R/o 115, Triroopli Vihar, Shikargarh, Jodhpur.

----Respondent

For Petitioner : Mr. Devender Mahalana For Respondent : Mr. Saurabh Maheshwari.

Mr. Tarun Dudia, on VC.

Mr. Maheshwar Singh Bhati.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

12/01/2023

This misc. petition has been preferred under Section 482

Cr.P.C., claiming the following reliefs:-

"1. It is, therefore, humbly prayed that this criminal misc. petition u/s 482 Cr.P.C. may kindly be allowed and the order dated 29.03.2022 passed by the Additional Chief Metropolitan Magistrate No.5, Jodhpur Metropolitan in criminal case no.392/2019 (NCV No.222/2020) Roopal Jain V/s Ishant Jain may kindly be quashed and set-aside and further the application filed u/s 91 Cr.P.C. may be allowed and the respondent may be directed to produce the necessary documents mentioned in the application before the learned court below.

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2. That explanation may be called from the learned court below for not following the direction given by the Hon'ble Apex Court in case of Rajnesh V/s Neha & Anr. (Supra)."

Learned counsel for the petitioner makes a limited

submission that the precedent law laid down by the Hon'ble Apex

Court in the case of Rajnesh Vs. Neha & Anr.; Criminal Appeal

No.730 Of 2020 decided on 04.11.2020 shall be applicable in

the present case, and that the petitioner is bound to disclose such

information, which has been sought within the purview of the

Affidavits of Assets and Liabilities for Non-Agrarian and

Deponents.

Learned counsel for the petitioner has relied upon the said

judgment, relevant portion of which reads as follows:-

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 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 17.02.2020 containing suggestions from all the State Legal Service Authorities throughout the country. We find the various suggestions made by the SLSAs to be of great assistance in finalizing the Affidavit of Disclosure which can be used by the Family Courts for determining the quantum of maintenance to be paid.

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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.

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.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;

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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.

134. A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts / Family Courts / Courts of Judicial Magistrates for awareness and implementation.

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:

A. Personal Information


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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.):

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 dependant 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.

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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:

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, alongwith 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:

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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.

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

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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. 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 dependant family members in India or abroad.

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     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.

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 upto seven years and fine, and Section 209 of Indian Penal Code punishable with imprisonment upto 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

Learned counsel for the petitioner submits that in accordance

with the said judgment, it was the duty of the respondents to duly

provide the requisite information, which was relevant for

determination of the quantum of maintenance payable to her.

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Learned counsel for the respondent has relied upon the

precedent law laid down by the Hon'ble Apex Court in the case of

Kunapareddy @ Nookala Shanka. vs Kunapareddy Swarna

Kumari, Criminal Appeal No.(S).516/2016 decided on

18.04.2016, the relevant portion of which reads as follows:-

"13. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498A of the Indian Penal Code. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows:

"INTRODUCTION.

The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of

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domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society the protection of Women from Domestic Violence Bill was introduced in the Parliament.

STATEMENT OF OBJECTS AND REASONS Domestic violence is undoubtedly a human Right issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation NO. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially the occurring within the family.

xxx xxx xxx

3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

4. The Bill, inter alia, seeks to provide for the following:- xxx xxx xxx

(ii) It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, secual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

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(iii)It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting the communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.

14. Procedure for obtaining order of reliefs is stipulated in Chapter IV of the DV Act which comprises Sections 12 to

29. Under Section 12 an application can be made to the Magistrate by the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person. The Magistrate is empowered, under Section 18, to pass protection order. Section 19 of the DV Act authorizes the Magistrate to pass residence order which may include restraining the respondent from dispossessing or disturbing the possession of the aggrieved person or directing the respondent to remove himself from the shared household or even restraining the respondent or his relatives from entering the portion of the shared household in which the aggrieved person resides etc. Monetary reliefs which can be granted by the Magistrate under Section 20 of the DV Act include giving of the relief in respect of the loss of earnings, the medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved

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person as well as her children, if any. Custody can be decided by the Magistrate which was granted under Section 21 of the DV Act. Section 22 empowers the Magistrate to grant compensation and damages for the injuries, including mental torture and emotional distress, caused by the domestic violence committed by the appellant. All the aforesaid reliefs that can be granted by the Magistrate are of civil nature. Section 23 vests the Magistrate with the power to grant interim ex-parte orders. It is, thus, clear that various kinds of reliefs which can be obtained by the aggrieved person are of civil nature. At the same time, when there is a breach of such orders passed by the Magistrate, Section 31 terms such a breach to be a punishable offence.

15. In the aforesaid scenario, merely because Section 28 of the DV Act provides for that the proceedings under some of the provisions including Sections 18 and 20 are essentially of civil nature. We may take some aid and assistance from the nature of the proceedings filed under Section 125 of the Code. Under the said provision as well, a woman and children can claim maintenance. At the same time these proceedings are treated essentially as of civil nature.

16. In Ramesh Chander Kaushal vs. Venna Kaushal (1978) 4 SCC 70, Justice Krishna Iyer, dealing with the interpretation of Section 125 of the Code, observed as follows:

"9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social functions to fulfill. The brooding presence of the constitutional empathy for

(14 of 17) [CRLMP-2524/2022]

the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause of the derelicts."

17. We understood in this backdrop, it cannot be said that the Court dealing with the application under DV Act has no power and/or jurisdiction to allow the amendment of the said application. If the amendment becomes necessary in view of subsequent events [escalation of prices in the instant case] or to avoid multiplicity of litigation, Court will the have power to permit such an amendment. It is said that procedure is the handmaid of justice and is to come to the aid of the justice rather than defeating it. It is nobody's case that respondent no. 1 was not entitled to file another application claiming the reliefs which she sought to include in the pending application by way of amendment. If that be so, we see no reason, why the applicant be not allowed to incorporate this amendment in the pending application rather than filing a separate application. It is not that there is a complete ban/bar of amendment in the complaints in criminal Courts which are governed by the Code, though undoubtedly such power to allow the amendment has to be exercised sparingly and with caution under limited circumstances. The pronouncement on this is contained in the recent judgment of this Court in S.R.Sukumar vs. S. Sunaad Raghuram (2015) 9 SCC 609 in the following paras:

"17. Insofar as merits of the contention regarding allowing of amendment application, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board vs. Modi Distillery And Ors., (1987) 3 SCC 684, wherein the

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name of the company was wrongly mentioned in the complaint that is, instead of Modi Industries Ltd. The name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows:-

"...The learned Single Judge has focused his attention only on the [pic]technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in para 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery.... Furthermore, the legal infirmity is of such a nature which could be easily cured...""

Learned counsel for the respondent, however, submits that

essentially the Domestic Violence Act is a civil law and thus, the

judgment of the Hon'ble Apex Court in the case of Rajnesh Vs.

Neha (Supra) would not apply to it.

Learned counsel for the respondent further submits that if at

all the judgment of the Hon'ble Apex Court in the case of Rajnesh

Vs. Neha (Supra) has to apply in a stricter terms, the paragraph-

72.6 ought to be followed and the petitioner can be directed to

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seek details under Order 11 of CPC, while resorting the order 10

CPC and Section 165 of Evidence Act.

This Court after hearing learned counsel for the parties at

length, is of the firm opinion, that once the issues pertaining to

calculation of quantum of maintenance has been exhaustively

decided by the Hon'ble Apex Court in the case of Rajnesh Vs.

Neha (supra), which includes the format of affidavits to be filed by

the concerned parties, then there can be no escape for either of

the parties to dither from the mandate of the said judgment, the

learned Trial Court has faltered by seeking such information would

amount to the gathering of evidence. Such an argument would

have held water, had it been a case, wherein something beyond

the parameters laid down by the Hon'ble Apex Court in Rajnesh

Vs. Neha (supra) was called for or was being sought.

However, this Court is of the firm opinion that the learned

Trial Court was bound to follow the mandate of Rajnesh Vs. Neha

(supra) and could not have dithered from the issues stipulated

therein by the Hon'ble Apex Court.

The maintenance for all purposes has to be covered by

judgment rendered in the case of Rajnesh Vs. Neha (supra) as it

governs the field, and it deals with in detail, as to how the parties

are to seek information for the purpose of the determination of

the quantum of maintenance.

In the opinion of this Court, the judgment of the learned Trial

Court squarely deals with the materials, which are required to be

brought before the Court at the time of determination of the

quantum of maintenance and thus, the exhaustive information is

required, to arrive at an appropriate and considerate quantum of

the maintenance.

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Thus, the impugned order dated 29.03.2022 passed by

learned Additional Chief Metropolitan Magistrate No.5, Jodhpur

Metropolitan in Criminal Case No.392/2019 (NCV No.222/2022) is

quashed and set aside.

Though Section 91 of Cr.P.C. also grants the competent Court

ample powers, but at this stage, the Court does not wish to delve

as to what would be powers of Section 91 of Cr.P.C., but while

quashing impugned order dated 29.03.2022, the petitioner is

given liberty to file an application under order 11 of CPC alongwith

necessary interrogatories, which shall be dealt with strictly in

accordance with law, and particularly, in the judgment of Rajnesh

Vs. Neha (supra), it is made clear that the learned Trial Court

shall be bound to implement the mandate of Rajnesh Vs. Neha

(supra). All pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

192-nirmala/jitender

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