The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM NO.265 of 2023 (An application U/S.19 of the Family Courts Act, 1984). Sarbeswar Jhapatsingh … Petitioner -versus- Suchitra Muduli and another … Opposite Parties For Petitioner : For Opposite Parties :
Legal Reasoning
Mr. B.B. Choudhury, Advocate Mr. P.C. Jena, Advocate(OP No.1) CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:24.02.2025(ORAL) G. Satapathy, J. 1. This revision is directed against the impugned judgment dated 24.07.2023 passed by learned Judge, Family Court, Khurda passed in Crl.M.P No.336/2018 directing the petitioner-husband to pay a sum of Rs.5,000/- per month each to OP No.1-wife and OP No.2-son towards their maintenance w.e.f. 20.11.2018 in an application under Section 125 CrPC. RPFAM No.265 of 2023 Page 1 of 7 2. In the course of hearing, neither of the parties has disputed about non-filing of the disclosure affidavit in terms of the judgment passed by Apex Court in Rajnesh Vrs. Neha and another; (2021) 2 SCC 324, but except for the parties, belonging to Economical Weaker Section (EWS) or living Below Poverty Line (BPL) or are Causal Labourers, filing of such disclosure affidavit is in fact a mandatory requirement for the parties in an application for maintenance under different statutes. In this regard, this Court considers it useful to refer to the conclusion arrived at by the most celebrated decision in the field in Rajnesh (supra), wherein the Apex Court has recorded the conclusion in paragraph-72 of the judgment. Relevant conclusions are extracted as under: “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 in exercise of our powers under Article 136 read with Article 142 of the Constitution of India : frame guidelines it necessary to 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 including maintenance proceedings, the pending proceedings before RPFAM No.265 of 2023 Page 2 of 7 concerned Family Court / District Court / Magistrate’s Court, 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; than two adjournments 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 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 for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record.” the application to decide for 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.” Admittedly, neither of the parties has taken the plea that they belong to Economically Weaker RPFAM No.265 of 2023 Page 3 of 7 Section (EWS) or are living below the poverty line or are casual labourers and, therefore, in such situation the filing of disclosure affidavit is considered mandatory. 3. In the above premises, viewing what should be the consequence for non-filing of disclosure affidavits which is mandatory in nature in the present case in view of the decision in Rajnesh(supra), this Court considers it useful to refer to the decision in Aditi Vrs. Jitesh Sharma; (2023) SCC Online SC 1451, wherein the Apex Court at paragraphs-14 & 15 has held thus:- in the parties “14. Nothing is evident from the record or even pointed out by the learned counsel for the appellant at the time of hearing that affidavits were filed by both terms of judgment of this Court in Rajnesh’s case (supra), which was directed to be communicated to all the High Courts for further circulation to all the Judicial Officers and implementation. The case in hand is after in not pronouncement aforesaid of judgment, this Court is still coming across number of cases decided by the courts below fixing maintenance, either interim or final, without their being any affidavit on record filed by the parties. Apparently, the officers concerned have awareness isolation. Even the for RPFAM No.265 of 2023 Page 4 of 7 of Criminal among remedies failed to take notice of the guidelines issued by this Court for expeditious disposal of cases involving grant of maintenance. Comprehensive guidelines were issued pertaining to overlapping when jurisdiction courts concurrent for grant of maintenance are available under the Special Marriage Act, 1954, Section 125 Code the Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955 and and Hindu Adoptions Maintenance Act, 1956, and Criteria for determining quantum of maintenance, date from which maintenance is to be awarded, enforcement of orders of maintenance including fixing payment of interim maintenance. As a result, the litigation which should close at the trial level is taken up to this Court and the parties are forced to litigate. Procedure, 15. As in the case in hand, the impugned order passed by the High Court is cryptic and is bereft of reasons. In our opinion, the same deserves to be set aside and the matter is liable to be remitted to the High Court for consideration afresh. Ordered accordingly. As the Respondent remained unrepresented, the High Court may issue notice for his appearance on the date so fixed by it.” 4. It is also not in dispute that the judgment in Rajnesh(supra) was delivered on 4.11.2020 and the guidelines therein have been circulated to all the Courts in India for compliance, but it has not been followed in this case while passing the impugned RPFAM No.265 of 2023 Page 5 of 7 judgment. When the principle culled out in a decision is directed to be followed mandatorily, the Court concerned is under obligation to follow such guidelines, but in this case, the learned trial Court having passed the judgment on 24.07.2023 has not followed the provisions of the guidelines issued in Rajnesh(supra) and, therefore, the matter is required to be remitted back for fresh disposal in accordance with law by complying the guidelines of the Rajnesh(supra). 5. In the result, the revision stands allowed and the impugned judgment dated 24.07.2023 passed by learned Judge Family Court, Khurda in Criminal Petition No.336 of 2018 is, hereby, set aside. Ergo, the matter is remitted back for fresh disposal in accordance with law. It is, however, made clear that the learned trial Court while adjudicating the matter afresh may receive the disclosure affidavits from the respective parties and provide opportunity to lead evidence on RPFAM No.265 of 2023 Page 6 of 7 the very aspect of the disclosure affidavits by taking into consideration the mandatory guidelines of the Apex Court in Rajnesh(supra). Since the maintenance proceeding is pending between the parties from the year 2018, the learned trial Court is hereby requested to dispose of the aforesaid proceeding after remand as expeditiously as possible preferably within a period of two months from the date of receipt of copy of this order. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 24th day of February, 2025/Jina Signature Not Verified Digitally Signed Signed by: JINA DIGAL Reason: Authentication Location: High Court of Orissa Date: 25-Feb-2025 17:43:16 RPFAM No.265 of 2023 Page 7 of 7