he parties should be directed to file a detailed affidavit of their assets, income and expenditure and the supporting documents in order to determine their true income. The assets, liabilities, income and expenditure of the parties are necessary to be determined not only to fix the maintenance under Section 24 but also to determine the permanent alimony under Section 25 of the Hindu Marriage Act and right to the joint properties under Section 27 of the Hindu Marriage Act.
Delhi High Court in the instant matter dealt with the issue of handling matters pertaining to claim of maintenance under the Hindu Marriage Act. It observed that Maintenance is not merely a legal right. The object behind the provision is two-fold: firstly, to prevent vagrancy resulting from stained relation between the husband and wife, and secondly, to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the case due to want of money. On the breakdown of the marriage, it often so happens that the husband pays nothing for the support of his wife and children and the wife has to fall back upon her parents and relatives to fend her immediate needs. Reasonableness too demands extension of such a relief in favour of a needy spouse. Had not the parties drifted away from one another, the spouse from whom support is sought would have in any case supported the other spouse entailing financial burden. Hence, it is but natural to make the husband bear the cost of maintaining his wife pending disposal of any dispute until some permanent relief is provided to her.
It was observed that the basis of the claim for maintenance is that the claimant has no independent income to support herself and the Court has to take into consideration the income of both the parties. It is common knowledge that in maintenance cases parties rarely disclose their true income. The applicant is not generally aware of or is not in possession of documents from which the income of respondent can be ascertained. Such documents are accessible to the respondent only. The true income of the parties is within their personal knowledge and therefore, the onus to prove their true income is on them under Section 106 of the Indian Evidence Act. The monthly income of the husband may not very often be within the knowledge of the wife, particularly in a case where the relationship is considerably strained and the spouses are living apart for a considerable period. Section 106 of the Indian Evidence Act specifically casts the burden of proof of the income on the husband since the relevant facts relating to his income cannot be within the specific knowledge of the wife.
Upon the failure of the husband to disclose his true income without good reasons, the Courts normally draw a presumption against him and accept the allegations of the wife as to the income of the husband. Every Court, infact, is supposed to be circumspect to ensure that unconsciously by any such order the Court is not forcing one or the other party to the extremes. The parties should be directed to file a detailed affidavit of their assets, income and expenditure and the supporting documents in order to determine their true income. The assets, liabilities, income and expenditure of the parties are necessary to be determined not only to fix the maintenance under Section 24 but also to determine the permanent alimony under Section 25 of the Hindu Marriage Act and right to the joint properties under Section 27 of the Hindu Marriage Act.
The Court then referred to Section 165 of the Indian Evidence Act, 1872 which invests the Judge with plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant. The effect of this section is that in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact and thus possibly acquire valuable indicative evidence which may lead to other evidence strictly relevant and admissible. The Judge under Section 165 is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided. The power under Section 165 is to be exercised with the object of subserving the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth. It is an extraordinary power conferred upon the Court to elicit the truth and to act in the interest of justice.
It was considered as necessary that a comprehensive affidavit of assets, income and expenditure should be filed by both the parties at the very threshold in all matrimonial cases to enable the Courts to determine the maintenance on the basis of true income of the parties. Filing of such affidavit at the very threshold of matrimonial litigation would have following advantages:-
(i) The parties will have to disclose their true income, assets and expenditure.
(ii) The maintenance order can be passed expeditiously without any delay on the basis of the affidavit.
(iii) Substantial judicial time would be saved.
(iv) The maintenance would be fixed by the Court on the basis of true income of the parties.
The Court concluded with following view and directions:
1. The affidavit of assets, income and expenditure of both the parties are 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 very threshold in order to curb the delay and expedite the trial in terms of Section 21-B of the Hindu Marriage Act.
2. Applying the principles laid down in Section 10(3) of the Family Courts Act, 1984 read with Sections 106 and 165 of the Indian Evidence Act, Court formulated the format of the affidavit of assets, income and expenditure (as annexed to the judgment) which also details documents required to be filed along with the affidavit.
3. All pleadings including petitions under Sections 9 to 13 of the Hindu Marriage Act and the written statement to be accompanied with an affidavit of assets, income and expenditure in the format provided alongwith relevant documents mentioned therein.
4. If the petitioner claims maintenance, application under Section 24 should be filed along with the petition. However, if respondent claims maintenance, the application under Section 24 along with the affidavit along with the response to the petitioner’s affidavit (to) be filed within 30 days of the service of the notice.
5. The response to the respondent’s affidavit of assets, income and expenditure be filed by the petitioner within two weeks thereafter and the case be listed for disposal of the application under Section 24 of the Hindu Marriage Act. If the parties are unable to file their response within two weeks, Court may suitably extend the time period upon sufficient cause being shown.
6. The Court may also call upon the parties of to file such an affidavit in pending cases of maintenance if the parties have not already disclosed their true income.
7. There may be cases where one of the spouse has sufficient means of sustenance and therefore, the application under Section 24 is not warranted at the initial stage. In such cases, the concerned spouse need not file the application under Section 24 of the Hindu Marriage Act but shall specifically mention this fact in the pleadings i.e. petition/written statement, as the case may be. In such cases, the written statement along with the affidavit in the format provided in the Annexure A be filed by the respondent within 30 days of the service of summons. However, this would not preclude the filing of the application under Section 24 at a later stage, if the circumstances so warrant.
8. Even in cases where Section 24 is not invoked by either of the parties, the affidavit of assets, income and expenditure shall be filed by both the parties for the purpose of adjudicating claims under Sections 25 to 27 of the Hindu Marriage Act, which may be raised at a later stage. If the affidavits of the parties are on record, the claim under Sections 25 to 27 would not delay the proceedings.
9. If the claim of permanent alimony under Section 25 of the Hindu Marriage Act is raised before the appellate Court, as in the present appeals, the appellate Court can direct the parties to file their affidavits of assets, income and expenditure. However, if such affidavits of the parties are already on record, the adjudication of claim under Section 25 of the Hindu Marriage Act would not delay the proceedings.
10. The Court shall ensure that the filing of the affidavits by the parties is not reduced to a mere ritual or formality. The Court shall scrutinize the affidavit threadbare and may decline to take the same on record unless it contains complete particulars mentioned in affidavit and is accompanied by the documents mentioned therein.
11. If the affidavit filed by the parties is not in the prescribed format or is not accompanied with the relevant documents, the learned Court shall not return it back to the filing counter. It would be appropriate for the Court to grant reasonable time to the parties to remove the defects/ deficiencies instead of returning back the affidavit to the filing counter.
12. If a party has made concealment or false statement in his/her affidavit, the opposite party shall disclose the particulars of the same in his/her response on affidavit along with the material to show concealment or false statement. The aggrieved party may also seek permission of the Court to serve interrogatories and seek production of relevant documents from the opposite party under Order XI of the Code of Civil Procedure.
13. Whenever a party discloses sufficient material to show concealment or false statement in the affidavit of the opposite party, the Court may consider examining the deponent of the affidavit under Section 165 of the Evidence Act to elicit the truth. In appropriate cases, the Court may direct a party to file an additional affidavit relating to his assets, income and expenditure at the time of marriage and/or one year before separation and/or at the time of separation.
14. If the statements made in affidavit of assets, income and expenditure are found to be incorrect, the Court shall consider its effect while fixing the maintenance. However, action under Section 340 Cr.P.C. is ordinarily not warranted in matrimonial litigation till the decision of the main petition.
15. At the time of issuing notice, the Court shall consider directing the petitioner to deposit such sum, as the Court may consider appropriate, on the basis of petitioner’s affidavit, for payment to the respondent towards interim litigation/part litigation expenses. However, in cases such as divorce petition by the wife who unable to support herself and is claiming maintenance from the respondent husband, it would not be appropriate to direct the petitioner-wife to pay the litigation expenses to the respondent-husband.
16. If the disposal of maintenance application is taking time, and the delay is causing hardship, ad-interim maintenance should be granted to the claimant spouse on the basis of admitted income of the respondent.
17. The application under Section 24 should be decided as expeditiously as possible otherwise the very object of the proviso to Section 24 would be defeated.
The aforesaid procedure, as directed would be followed in all cases relating to maintenance including cases under Hindu Marriage Act, 1955, Protection of Women from Domestic Violence Act, 2005, Hindu Adoption and Maintenance Act, 1956, Special Marriage Act, 1954 Indian Divorce Act, 1869 as well as Section 125 Cr.P.C.
The author of the article is Anupam Srivastava who can be reached at firstname.lastname@example.org
[Kusum Sharma vs. Mahinder Kumar Sharma]
(Delhi HC, 14.01.2015)