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DV Landmark Judgments #8: Kusum Sharma Vs Mahinder Kumar Sharma: Filing Of Prescribed Affidavit Necessary In Cases Relating To Maintenance Including Cases Under Hindu Marriage Act, Domestic Violence Act And Other Family Law Statutes

Neeraj ,
  01 April 2022       Share Bookmark

Court :
High Court of Delhi
Brief :
The present appeal arose from the decision of the appropriate court through which permanent alimony under the Hindu Marriage Act, 1955 was denied. The High Court was to construe provisions related to the determination of income of parties to be assessed to pass the order for maintenance.
Citation :
First Appeal from Order 297/1997

Date of Judgement:
14th January 2015

Coram/Judge:
Hon'ble Mr. Justice J.R. Midha

Parties to the Case:
Petitioner- Kusum Sharma
Respondents- Mahinder Kumar Sharma

Legal Provisions

  • Section 24 of Hindu Marriage Act-deals Maintenance pendente lite and expenses of proceedings
  • Section 25 of Hindu Marriage Act- deals with permanent Alimony and maintenance.
  • Section 10 of Family Courts Act, 1984- lays down procedure for proceedings in family courts.

Overview

  • The court observed that the basis of the claim for maintenance, under Hindu marriage act, was that the claimant had no independent income to support herself and the Court had to take into consideration the income of both the parties.
  • It was rare that the parties disclosed their true income. The applicants, commonly, didn’t possess documents from which the income of the respondent can be ascertained. Such documents were accessible to the respondent only.
  • In Radhika v. Vineet Rungta, the High Court had observed that a safer and surer method to be employed for reaching a realistic conclusion was to look at the status of the parties. As incomes can be concealed, the status was probably evident. If a luxurious lifestyle was enjoyed by spouse, he should not be heard to complain or plead that he had only a meagre income.
  • The true income of the parties was within their personal knowledge and therefore, the burden to prove their true income was on them under Section 106 of the Indian Evidence Act.
  • On failure of the husband to disclose the true income without valid reasons, the Courts normally draw a presumption against him and accepted the allegations of the wife as to the income of the husband.

Issue

Whether maintenance as envisaged under Hindu Marriage Act, 1955 be granted or refused on the basis of submissions of the parties regarding their true income?

Judgement Analysis

  • The Court was of the view that the assets, liabilities, income and expenditure of the parties were necessary to be determined to fix the maintenance under Section 24 and Section 25 of the Hindu Marriage Act. It was therefore necessary to construct a format of the affidavit of expenditure,assets and income.It was also necessary to specify the documents to be attached along with it.
  • Matrimonial jurisdiction was of a special nature and deserved a special attention. Lengthy trial in matrimonial proceedings should be avoided.A lengthy trial would be in opposition to the spirit of Hindu Marriage Act.
  • The affidavit of assets, income and expenditure of both the parties would be necessary to determine the rights of the parties under Sections 24 to 27 of the Hindu Marriage Act and, therefore, should be filed by both the parties at the earliest in order to curb the delay.
  • The Court formulated the format of the affidavit of assets, income and expenditure as attached to the order. The documents required to be filed along with the affidavit were also prescribed in the format of the affidavit.
  • Application under Section 24 should be filed along with the petition, if the petitioner claimed maintenance. However, if respondent claims maintenance, such application along with the affidavit of assets and response to the petitioner’s affidavit, in the format provided, should be filed within 30 days from the date of serving notice.
  • The response to the respondent’s affidavit should be filed by the petitioner within two weeks. If the parties were unable to file the response within two weeks, Court may condone the delay.
  • There may be cases where the spouses would have sufficient means of sustenance and hence, the application under Section 24 was not warranted at the initial stage. The concerned spouse need not file the application under Section 24 of the Hindu Marriage Act but should specifically mention this fact in the pleadings.
  • If the claim of permanent alimony under Section 25 of the Hindu Marriage Act would be raised before the appellate Court, the appellate Court would direct the parties to file their affidavits of assets, income and expenditure.
  • The Court shall ensure that the filing of the affidavits by the parties wasn’t a mere formality. The Court shall scrutinize the affidavits and may decline to take the same on record unless it had complete particulars mentioned as prescribed.
  • If a party made false statement in the affidavit, the opposite party shall disclose the particulars of the same in his/her response to affidavit along with the evidence to prove the false statement. The aggrieved party may also seek permission for production of relevant documents from the opposite party.
  • If the statements made in affidavit were found to be incorrect, the Court shall consider its effect while fixing the maintenance.
  • At the time of issuing notice, the Court shall consider directing the petitioner to deposit such sum, as considered appropriate, on the basis of petitioner’s affidavit, for payment to the respondent towards interim litigation expenses. However, in cases the wife who unable to support herself and was claiming maintenance from the husband, it would not be appropriate to direct the petitioner to pay the litigation expenses to the respondent.
  • These directions are necessitated because the parties in the matrimonial litigation did not disclose their true income and the claims of maintenance were dragged.Finding it difficult to determine the true income, the Court tends to fix maintenance by drawing presumptions.
  • Theprocedure established herein would be followed in all cases relating to maintenance including cases under Hindu Marriage Act, Protection of Women from Domestic Violence Act, Hindu Adoption and Maintenance Act, Special Marriage Act as well as Section 125 CrPC.
  • The Courts were at liberty to direct the parties to disclose further relevant facts and documents if deemed necessary to determine the true income and to consider Rules and formats of affidavits to develop and improve the format of the affidavit formulated by this Court.
  • The Court was of the view that filing of affidavit by both the parties in the prescribed format in matrimonial litigations would enable the Courts to pass maintenance order within 60 days in terms of Section 24 of the Hindu Marriage Actand therefore should be incorporated in all the matrimonial statutes.

Conclusion

The Honourable Court construed the provisions of the Hindu Marriage Act 1955 and evolved an expeditious way to adjudicate matters related to alimony and maintenance. A format of affidavit relating to the assets, liabilities, income and expenditure of the parties was necessitated to initiate proceedings under sections 24 and 25 of the Act. The information contained therein would assist the Courts in determining the true nature of the income of the parties and fix the maintained accordingly under different statutes.

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