Partly allowed

Gulshan Swain v. Sandhyarani Lenka

Orissa HC4 Dec 2024RPFAM/174/2022

Case brief

AI extract

What is this about?

The High Court of Orissa, Cuttack, set aside the Family Court order directing interim maintenance of Rs. 20,000/month. Remanding the quantum issue, the Court directed affidavits of assets to be filed under Rajnesh guidelines, while fixing Rs. 10,000/month as future interim maintenance.

What did the court decide?

Impugned order set aside; matter remanded to Family Court for fresh disposal with affidavits of assets; interim maintenance fixed at Rs. 10,000/month.

Gulshan Swain Vs Sandhyarani Lenka — Maintenance and Alimony | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM NO.174 of 2022

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(An application U/S. 19(4) of the Family Courts Act, 1984 r/w. Section 397 & 401 of CrPC).

Gulshan Swain

… Petitioner

-versus-

*Sandhyarani Lenka*	… *Opposite Party*
*For Petitioner*	: *Mr. S. Chakravarty,* *Advocate*
*For Opposite Party*	: *Mr. S.S.K. Nayak,* *Advocate*

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CORAM:

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JUSTICE G. SATAPATHY

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DATE OF HEARING & JUDGMENT:04.12.2024(ORAL)

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G. Satapathy, J.

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1. This revision by the petitioner-husband is directed against the impugned judgment dated 24.06.2022 passed in Cr.P. No. 138 of 2019 by which

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the learned Judge, Family Court, Dhenkanal has directed the revisioner-petitioner-cum-husband to pay a sum of Rs. 20,000/- per month to the revisioner-OP-

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cum-wife w.e.f. date of filing of the application.

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2. Heard, Mr. S. Chakravarty, learned counsel for the petitioner-husband and Mr. S.S.K. Nayak, learned

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RPFAM No.174 of 2022

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counsel for OP-wife and perused the record.

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3. At the outset, it is agreed by both the parties that neither any affidavit in terms of the law laid down by the Apex Court in Rajnesh vs. Neha and another; (2021) 2 SCC 324 , has been filed by either of the parties nor has the Court asked for such affidavit, but the fact remains that the said judgment was delivered on 04.11.2020 by the Apex Court, wherein a comprehensive guidelines have been issued to determine the quantum of maintenance and disposal of proceeding seeking maintenance under all applicable statutes. The guidelines as issued by the Apex Court in paragraph 72 of the said decision are extracted

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hereunder:-

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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:

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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 proceedings, including pending proceedings before the Family Court/District Court/Magistrate's Court concerned, as the case may be, throughout the country;

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72.2. (b) The applicant making the claim for maintenance will be required to file a concise

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RPFAM No.174 of 2022

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application accompanied with the affidavit of Disclosure of Assets;

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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 willful and contumacious in delaying the proceedings (Kaushalya v. Mukesh Jain, MANU/ SCOR/ 21339/ 2019: (2020) 17 SCC 822). 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;

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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.

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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.

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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 Code of Civil Procedure. On filing of the affidavit, the court may invoke the provisions of Order 10 Code of Civil Procedure 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.

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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 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.

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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 Code of Criminal Procedure, and for contempt of court.

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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.

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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.

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72.11. (k) A professional Marriage Counsellor must be made available in every Family Court.

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4. In this case, although the quantum of maintenance has been disputed by the revisionerpetitioner, but on perusal of record it also appears that the learned trial Court has taken the notional income of the revisioner-petitioner while determining the quantum of maintenance to the OP-wife, however, had the affidavit of assets and liabilities in terms of the

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decision in Rajnesh (supra) been filed by the parties, it would have been proper and appropriate for the learned trial Court to determine the quantum of maintenance. Further, there is no dispute with regard to the grant of maintenance to the OP-wife and that finding has not been challenged in this revision-petition, but the only finding with regard to quantum of maintenance has been challenged by the revisioner-petitioner-cum-husband. In this situation, the only course left upon to the Court is to remit the matter back to the learned Judge, Family Court, Dhenkanal for fresh disposal with regard to quantum of maintenance payable to the OP-wife by seeking appropriate affidavits from the parties in terms of decision in Rajnesh (supra).

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5. It is, however, clarified that since this Court by way of an interim order has directed the revisionerpetitioner to pay a sum of Rs.10,000/- per month to OPwife and such order having been extended time to time, this Court considers it proper to direct the petitionerhusband to pay Rs.10,000/- per month as an interim maintenance to the OP-wife till disposal of the maintenance proceeding in Cr.P. No.138 of 2019 w.e.f.

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the date of filing of such application. Further, the arrear amount of interim maintenance be accordingly calculated and paid to the OP-wife for her sustenance, but it is further clarified that after determination of the quantum of maintenance, the differential amount has to be either adjusted or paid to the OP-wife accordingly. It is also made clear that this Court has not observed anything on merit and the learned trial Court while adjudicating the quantum of maintenance has to pass any order in terms of the law, but without being influenced by any of the observations made by this Court in this order. Accordingly, the parties are directed to co-operate in disposing the matter, failing which the learned Judge, Family Court, Dhenkanal is free to take any decision in accordance with law. The parties be allowed to adduce further evidence with regard to the quantum of maintenance.

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6. In the result, the impugned order is set aside to the extent indicated above and the learned trial Court is requested to proceed with the matter afresh accordingly. The learned trial Court is also requested to

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dispose of the present matter within 60 days from the

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date of receipt of the copy of this order.

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(G. Satapathy) Judge

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Orissa High Court, Cuttack, Dated the 4^th day of December, 2024/S.Sasmal

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Signature Not Verified

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Digitally Signed Signed by: SUBHASMITA SASMAL Designation: Jr.Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2024 10:56:31

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RPFAM No.174 of 2022

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Gulshan Swain v. Sandhyarani Lenka

Case brief

What is this about?

What did the court decide?

Gulshan Swain v. Sandhyarani Lenka

Case brief

What is this about?

What did the court decide?

What the court decided

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