Rajeev Kumar Vs Lata Sharma

For the Petitioner : Mr. Yuyutsu Singh Thakur, Legal Aid Counsel. For the Respondents : Mr. Lovneesh Kanwar, Senior Advocate with Mr. Tek Chand, Advocate.

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G.S. Sandhawalia, Chief Justice (Oral)

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The challenge in the present appeal is to the order passed by the Family Court, Sarkaghat, District Mandi, Himachal Pradesh, dated 24.07.2024, whereby vide an ex parte order, the present appellant was directed to pay a sum of Rs.20,000/- per month as maintenance for subsistence from the date of filing of the application under Section 125 of the Code of Criminal Procedure in order to provide succor to the wife and son, who are respondents herein.

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The amount was quantified on the basis of the fact that the wife had stepped into the witness box and stated that she had got married

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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in 2015 and her son was studying in the R.K.I. School, Nabahi and the school was charging Rs.1,500/- per month as fee and the bus charges are Rs.650/- per month. The education charges totaled up to around Rs.3,000/- to Rs.4,000/- per month and the present appellant-husband was stated to be working in a Company and earning Rs.50,000/- per month, having a house in Chandigarh, running a Taxi and having landed property from which an additional income of Rs.30,000/- is being generated and is stated to be earning a total income of Rs.80,000/- per month. The prayer as such was for grant of Rs.15,000/- each to be paid, which has scaled down to Rs.20,000/- per month to both, the wife and the child.

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The Legal Aid Counsel for the appellant has fallen back on the judgment of the Apex Court, laying down the guidelines, reported in Rajnesh vs. Neha and another (2021) 2 SCC 324 , whereby mandatory guidelines had been issued that the parties shall file affidavit(s) so that there is disclosure of the assets and liabilities for the Family Court. Accordingly, it has been argued that it has been recorded by the Family Court itself that there is no affidavit filed to look into the admitted claim of the appellant-husband and it is thus submitted that even the wife has not filed such affidavit.

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On an earlier occasion, both the parties had put in appearance and an effort was made as such by us to resolve the matter by referring it to the Mediation, while noting that the marriage was solemnized on 09.02.2015, the son was born on 02.11.2015 and the

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parties were living separately since 2018. We also noticed that the husband had earlier appeared in the proceedings before the Family Court, but subsequently stopped attending the same, which is also a matter of record. It was thereafter, keeping in view the argument, which was raised and rebutted by the counsel for the respondents that once there was an examination-in-chief and cross-examination, the necessity of the affidavit to be filed might not, as such, be necessary in the peculiar facts and circumstances of the case, more so, when the appellant-husband, as such, was proceeded against ex parte having chosen to cross-examine the wife and thereafter not having put in appearance.

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It is, thus, contended by the counsel for the respondents that on mere technicalities and on the basis of the conduct of the husbandappellant, who had been proceeded against ex parte on 08.12.2023, now the clock should not be set back and the matter should not be remanded back to the Family Court, for the said exercise. It has also submitted that the judgment relied upon pertains to a case of interim maintenance and there is a specific mention that in the cases where the evidence is led, the procedure would be different.

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We have gone through the judgment in question and find that it emanated from the grant of interim maintenance since there was a dispute as such regarding the maintenance, which has been awarded as Rs.15,000/- per month to the wife and Rs.5,000/- per month to the son. It was further modified to the extent of Rs.10,000/- per month till the order was passed in the main petition. It was in such circumstances, the

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directions were issued by the Apex Court, clarifying the issue as such that there should be an Affidavit of Disclosure of Assets and Liabilities by framing guidelines in exercise of its powers under Article 136 read with Article 142 of the Constitution of India and further by directing that the application for interim maintenance will be decided 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.

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Vide a separate heading regarding permanent alimony, as such, was also considered in Paragraph-73 that parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse. Thus, apparently true purpose as such was to ensure that the interim maintenance is awarded at the earliest after the affidavit of assets and liabilities is also brought on record.

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In the said case, the peculiar facts and circumstances were noticed in Paragraph-65 which would make it apparent that the whole intent and purpose, as such, was to quantify the amount at the interim stage. The same reads as under:-

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“65. The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before the concerned court, as a mandatory requirement. On the basis of the pleadings filed by both parties and the Affidavits of Disclosure, the court would be in a position to make an objective

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assessment of the approximate amount to be awarded towards maintenance at the interim stage.”

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Given such circumstances, the husband had been directed to pay the entire amount of maintenance and if he failed to comply with the directions, it would be open to the Court to enforce the order under Order 128 of the Code of Criminal Procedure, while noting that the application for interim maintenance had remained pending for seven years.

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The counsel could not point out from the said judgment that the husband as such had chosen to stay back from the said proceedings, as in the present case, as he had cross-examined the wife on 28.11.2022, when she had specified that how the income as such was being earned and what was the expenses on the son. The husband was an MBA qualified and was working in a Company, owning a house in Chandigarh and having Taxi and properties and not giving financial support, which factum could not be rebutted in the cross-examination.

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In such circumstances, we are of the considered opinion that the husband as such now cannot take such a plea regarding non-filing of the affidavit by the wife, when he himself has not come forward to give his affidavit of disclosure of assets and liabilities. We have noticed that the application as such was filed in the year 2021 and the parties had been staying separately since 2018 and the amount which had been awarded was ordered to be paid from the date of filing of the application.

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It has been pleaded that the wife is working and drawing a salary of Rs.10,787/- as gross salary and Rs.9,890/- as net salary, as per the ground taken and as per Annexure A-3 placed on record, which is the stand of the Principal, R.K. International School, Nabahi, Tehsil Sarkaghat, District Mandi, Himachal Pradesh, which was sought to be placed on record by filing an application for leading additional evidence by the appellant in the present appeal.

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We are of the considered opinion that the said application or the said Certificate could not warrant as such to be taken on record, since the conditions of additional evidence could not be satisfied inasmuch as

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the fact that the husband had due opportunity to produce the due witnesses before the Family Court from the School, since the wife had taken the plea that she was earning Rs.4,000/- and her services were also dispensed with later on. Accordingly, we dismiss the application for additional evidence.

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In such circumstances, the reliance upon the other judgments as such that the matter should be remanded for filing of affidavits, and fresh decision would not arise in the present case on account of the conduct of the husband himself, who had chosen to step away from the proceedings which were reaching the final stage as such, which cannot be countenanced. It is only an effort as such to deny the fruits of litigation to the wife and to deny subsistence allowance in this period of high inflation.

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Resultantly, keeping in view the conduct of the appellanthusband, we do not feel in the peculiar facts and circumstances of the

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case that the matter is liable to be remanded for decision afresh on the basis of non-filing of the affidavit of disclosure of assets and liabilities.

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Accordingly, the present appeal, being devoid of merit is dismissed, so also, pending miscellaneous application(s), if any.

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( G.S. Sandhawalia) Chief Justice

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June 15, 2026 (KS)

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( Bipin Chander Negi) Judge

Rajeev Kumar v. Lata Sharma

Case brief

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Rajeev Kumar v. Lata Sharma

Case brief

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