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deep Sharma (Law Student)     12 March 2012

Using fundamental right in maintenance case

 

 Dear Peers,

If a Judge or MM in district Court ordered to us to submit our last 2-3 or 5 years or current salary slip, bank detail, or any movable or immovable assets detail in maintenance case.

Can we deny/challenge this by using our fundamental right article 20(3) which says "No person accused of any offense shall be compelled to be a witness against himself".

Or can we also use the statement that the "burden of proof is rely on the other party" in any maintenance case like DV, 125, section 24. 
Can we use this legal parameter.

Regds.
DS

 

 



 7 Replies

Kiran Kumar (Lawyer)     12 March 2012

if the things are to be considered with your view point then there will be no witness in any case.

 

primarily the said provision is regarding criminal liability and the purpose of including this provision is to ensure that a person is not forced to accept his guilt without a fair trial.

 

as far as ur case is concerned, the perusal of documents by the court is must and the Article 20 does not come to your rescue.

 

if you are denying your income or claim of the opposite party by way of a contrary submission then certainly the burden is upon you as well to prove to the contrary.

 

making it to be a constitutional issue will not help you out.

1 Like

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     12 March 2012

Dear Querist,

Such arguments are misconcieved and bound to fail. Because S.106 - categorically provides that burden to prove a fact which lies in specific knowledge of a person, is on that person only. Hence since you are under a better position to disclose your salary the court can very well put the burden on you as to the quantum of salary. If you fail to come out with your salary slips - the court may draw an adverse inference against you - and may presume that 'what you conceal' must be something that goes against you. Hence it's better to come out clean and contest wife's maintenance plea on other grounds such as her withdrawing w/o sufficient cause etc. 

As regards Art.20(3) - It is also bound to fail as 

i) You are not an accused - 125 is quasi civil proceedings essentially civil in nature;

ii) It is not something that is in your personal knowledge - i.e it is not testmonial - furthermore - the information is not such as would incriminate you. 

Feel free to talk !@

1 Like

Arup (UNEMPLOYED)     13 March 2012

mr deep the points you raised have weightage.

mr chugh's reply also having weightage. more discussion on the matter required.

Democratic Indian (n/a)     13 March 2012

Reply of Advocate Chugh appears perfect when he says the following:

As regards Art.20(3) - It is also bound to fail as 

i) You are not an accused - 125 is quasi civil proceedings essentially civil in nature;

ii) It is not something that is in your personal knowledge - i.e it is not testmonial - furthermore - the information is not such as would incriminate you.

read alonwith this Supreme Court judgment: https://indiankanoon.org/doc/1626264/

Shailendra Mishra (Legal Consultant)     15 March 2012

Hi Deep,

Article 20 (3) doest not implicate for the civil liability AND it is provisioned for the criminal liablity. You can not take the help of constitution for not disclosing the salary. it is your salary; so onus is on you to show and prove it; no other can do except your employer. Go ahead and disclose it...

Thanks!

Siv (engineer)     06 April 2012

Hi,

 

If court ask you to submit the details you are bound to submit it and in CrPC-125 case you are suppose to disclose the detaisl even without court order considering that the CrPC-125 case requires the parties shall prove their capacity to maintain by the partie (wife and husband).

 

If court specifically ask for disclosure something which the party has not...then simply say that party does not have such things....

N.K.Assumi (Advocate)     12 May 2012

Adv Bharat Chugh is absolutely right.


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