JAYARAJ R. NAIR v. RENUKA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943** **RPFC NO. 25 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CMP 602/2021 IN MC 154/2017 OF FAMILY COURT,** ## **OTTAPPALAM** ## **REVISION PETITIONER/PETITIONER/RESPONDENT:** **JAYARAJ R. NAIR AGED 44 YEARS S/O.LATE RAJENDRAN, RAJ VILLA, KAVUVATTOM, P.O.CHERPULASSERI, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 503.** **BY ADVS. P.JAYARAM GIGI PAPPACHAN K.R.PAUL** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 RENUKA AGED 38 YEARS D/O.VENUGOPALAN, ANUPAMA HOUSE, P.O.NELLAYA, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 335.** **2 MAYOOKH AGED 14 YEARS** **(MINOR), S/O.JAYARAJ R.NAIR, ANUPAMA HOUSE, P.O.NELLAYA, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 335. (MINOR 2ND RESPONDENT REPRESENTED BY MOTHER, 1ST RESPONDENT).** **THIS REV.PETITION (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.01.2022,** **THE COURT ON 24.01.2022 DELIVERED THE FOLLOWING:** R.P.(F.C.)No.25/2022 2 ## **O R D E R** Revision petitioner is the husband of the 1[st] respondent. Their marriage was solemnized on 25.04.2005. They were living separated from 2014 onwards. First respondent filed M.C.No.154/2017 seeking maintenance of Rs.10,000/- to the minor son born out of their wedlock. It is alleged that the petitioner suffered brain hemorrhage, intracerebral hemorrhage and lost his employment and is having no income at all. First respondent is a Higher Secondary School Teacher at KRRP Higher Secondary School, Kongad, which is an aided school. It is alleged that first respondent is capable of looking after the child as she has substantial income. The case has been filed to harass and humiliate the petitioner. The petitioner filed an affidavit of disclosure of his income and assets before the court below in compliance of the directions laid down in [Rajnesh v. Neha & Anr. [2020 (6) KHC 1 (SC)]. Thereafter, petitioner also filed an application for a direction to the 1[st] respondent for filing an affidavit disclosing the income. She did not file affidavit, inspite of granting time for the same. Hence the petitioner filed CMP No.602/2021 in M.C.No.154/2017 before the R.P.(F.C.)No.25/2022 3 Family Court, Ottapalam to dismiss the M.C. for failure to file affidavit. The same was dismissed by the impugned order. Aggrieved by the same, this Revision Petition has been filed. 2. Heard the learned counsel for the revision petitioner. 3. The impugned order passed by the Family Court, Ottapalam would reveal that the respondent wife claimed maintenance only for the 2[nd] respondent, minor child. The first respondent was examined as PW1 on 25.11.2019 and the case was posted for respondents' evidence. Thereupon the petitioner filed CMP No.50/2020 for directing the first respondent to file affidavit to disclose the assets and liabilities of the first respondent in view of the dictum laid down in Rajnesh's case. The court directed both parties to file affidavit regarding the assets. Consequently the petitioner filed affidavit regarding the assets. But the first respondent did not file any affidavit though sufficient time was granted. Thereupon the petitioner filed CMP No.602/2021 to dismiss the case for default for non-compliance of the order in CMP No.50/2020. 4. The Family Court taking into account the fact that the maintenance has been claimed with respect to the minor child and the first respondent admitted her income as Rs.50,000/- during R.P.(F.C.)No.25/2022 4 examination and further that maintenance of children is a joint responsibility of both parents if both are earning and that the claim of maintenance is a statutory right of minor child, refuses to dismiss the maintenance case. 5. The learned counsel placed reliance on [Rajnesh v. Neha & Anr. [(2021) 2 SCC 324] and would contend that there was a direction by the Apex Court that in maintenance matters there is a direction to both parties to file affidavit. So in view of the same the petitioner filed CMP No.50/2020 and court directed both parties to file affidavit. In compliance of the same, petitioner filed affidavit. But first respondent did not file any affidavit. So this is a clear violation of the directions in Rajnesh's case and for that reason the Family Court ought to have dismissed the M.C. 6. On going through decision in Rajnesh's case what could be gathered is that the Apex Court have given guidelines to all the courts dealing with claim of maintenance in various forums to avoid overlapping of jurisdictions under various statutes. In paragraph No.63 of the said judgment while dealing with the payment of interim maintenance it was noted that interim maintenance is decided on the basis of pleadings, where some R.P.(F.C.)No.25/2022 5 amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. Both parties submit scanty material and do not disclose the correct details, and suppress vital information, which makes it difficult for the courts to make an objective assessment for grant of interim maintenance. There is also a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income. Taking into account the above factors it was directed that affidavits should be filed by parties residing in urban areas and would require to be entirely different from the one applicable to rural areas, or tribal areas. In order to have a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, exercising the powers of the Apex Court under Article 136 read with Article 142 of the Constitution of India, the following guidelines have been given: “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 R.P.(F.C.)No.25/2022 6 proceedings, including pending proceedings before the Family Court/District Court/Magistrate’s Court concerned, 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 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; 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 concerned 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 court concerned 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 11 CPC. On filing of the affidavit, the court may invoke the provisions of Order 10 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. 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 R.P.(F.C.)No.25/2022 7 relevant circumstances, or if some new information 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 maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the court may consider initiation of proceeding under Section 340 Cr.P.C., 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 Disclosure have been filed before the court. 72.11.(k) A professional Marriage Counsellor must be made available in every Family Court. ## **Permanent alimony** x x x x x **==> picture [64 x 10] intentionally omitted <==** 7. So on going through the above it could be seen that the direction with regard to the filing of affidavit has been made by the Apex Court for the disposal of the interim maintenance application. That would be clear when we go through paragraph No.73 wherein it has been specifically provided that parties may lead oral and documentary evidence with respect to income, expenditure, R.P.(F.C.)No.25/2022 8 standard of living, etc. before court concerned for fixing the permanent alimony payable to the spouse. 8. In the above judgment the Apex Court while dealing with striking off the defence of the respondent-father for noncompliance to pay maintenance is held to be an order which ought to be passed as a last resort, if the Courts find default to be willful and contumacious, particularly to a dependant unemployed wife, and minor children. 9. So the above decision of the Apex Court does not visualize the situation of dismissing the maintenance case for noncompliance of filing affidavit disclosing the assets as provided therein. So as has been rightly found by the Family Court the maintenance case has been filed seeking for maintenance to the 2[nd] respondent, the minor son of the petitioner herein. First respondent during evidence admitted her income as Rs.50,000/- per month. However since there is a direction by the court she could have file an affidavit disclosing the income especially in view of the directions in Rajnesh's case, which has been made applicable to the pending cases also. However non-filing of affidavit disclosing the assets by itself R.P.(F.C.)No.25/2022 9 cannot at all be taken as reason to dismiss the maintenance case field for and on behalf of a minor son by the mother. In Rajnesh's case the Apex Court held that striking off defence is a last resort. So I do not find any illegality or impropriety in the impugned order passed by the Family Court calling for interference at the instance of this Court in revision. In the result, Revision Petition dismissed in limine. Sd/- **M.R.ANITHA JUDGE** shg