Affidavit Disclosing Assets Mandatory In Maintenance Proceedings: Orissa HC Laments Non-Compliance Of SC Guidelines By Family Court

The Orissa High Court has expressed displeasure over the recalcitrance of a Family Court in following guidelines issued by the Supreme Court which mandated a person to file an affidavit disclosing his/her assets while making a maintenance application and the respondent to submit his reply along with a similar asset affidavit, only after which a maintenance case can be decided. While remitting the case back to the Court below for fresh disposal in strict accordance with the aforesaid guidelines, the Single Bench of Justice Gourishankar Satapathy observed – “When the principle culled out in a decision is directed to be followed mandatorily, the Court concerned is under obligation to follow such guidelines, but in this case, the learned trial Court having not followed the provisions of the guidelines issued in Rajnesh (supra), the matter is required to be remitted back for fresh disposal in accordance with law by complying the guidelines of the Rajnesh (supra)” Case Background The monthly salary of the petitioner-husband was Rs.42,000/-, but he was directed to pay Rs. 41,000/- per month in three different proceedings; firstly, Rs.20,000/- per month in a proceeding under Section 12 of the Protection of Women from Domestic Violence Act, secondly, Rs.1,000/- in a proceeding under Section 24 of the Hindu Marriage Act and thirdly, Rs.20,000/- in the proceedings under Section 125 of the CrPC. Counsel appearing for the petitioner-husband conveyed to the Court that neither of the parties has filed any affidavit disclosing their respective assets, as mandatorily required by the ruling of the Apex Court in the landmark case of Rajnesh v. Neha (2020). The husband's counsel further questioned the order of the lower Court asking him to pay Rs. 20,000/- as maintenance effective from 01.12.2017, while his salary was merely Rs. 10,300/- in 2017. Thus, it was argued, the lower Court committed a gross error in passing the maintenance order. However, it was submitted on behalf of the opposite party-wife that since the trial Court has ordered the payment of maintenance amount on the basis of all relevant materials, mere failure to take on record the asset affidavits shall not render its order void. High Court's Observations At the outset, the Court referred to the guidelines issued by the Supreme Court in Rajnesh (supra) in so far as it mandated consideration of affidavits disclosing assets of parties before passing order of maintenance. The top Court had issued the following directives – “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 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 the basis of the affidavit filed by the applicant and the pleadings on record.” Despite of the aforesaid precise guidelines, the Apex Court had taken note of the deviations/non-compliances by the concerned Courts across the country. In Aditi v. Jitesh Sharma, 2023 LiveLaw (SC) 963, the Court had lamented failure on the part of judicial officers to follow the guidelines rendered in Rajnesh (supra) and had ordered re-circulation of the judgment copy among all the judicial officers of the country. “Even after pronouncement of the aforesaid judgment, this Court is still coming across number of cases decided by the courts below fixing maintenance, either interim or final, without their being any affidavit on record filed by the parties. Apparently, the officers concerned have failed to take notice of the guidelines issued by this Court for expeditious disposal of cases involving grant of maintenance,” a Division Bench of the highest Court had observed. Despite of the authoritative ruling and reminder by the Apex Court, the High Court regretted non-compliance of mandatory guidelines by the trial Court, which went on to pass the maintenance order without taking asset affidavits on record. “It is also not in dispute that the judgment in Rajnesh (supra) was delivered on 4.11.2020 and the guidelines therein have been circulated to all the Courts in India for compliance, but it has not been followed in this case while passing the impugned judgment.” Consequently, the was remitted back to the Family...

Affidavit Disclosing Assets Mandatory In Maintenance Proceedings: Orissa HC Laments Non-Compliance Of SC Guidelines By Family Court

Jyoti Prakash Dutta

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