Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., disposed off the petition without any interference with impugned orders.

The facts of the case are such that the petitioner is the legally wedded wife of defendant having solemnized a marriage with him in the year 1994 and has a son out of the wedlock. Due to marital discord, plaintiff started residing with her father since the year 1998 along with the son.  An application for grant of maintenance under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by petitioner before the Court of learned Judicial Magistrate 1st Class, Manali. Apprehending defeat of her maintenance claim by the defendant by selling the suit land an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure (CPC) was filed for restraining the defendant from alienating, transferring and for creating charge over the suit land which stands dismissed by the trial Court. The order was later upheld by the Appellate Court. Aggrieved by the same, instant petition was filed under Article 227 of the Constitution of India.

Counsel for the petitioner relied on the judgment titled  V. Tulasamma v. Sesha Reddy, (1997) 3 SCC 99 and submitted that both the Courts have misdirected themselves in treating the civil suit as one filed by a coparcener i.e the wife to restrain and injunct Karta i.e. the husband from alienating the suit land, whereas the civil suit was a case instituted by the wife for creation of charge over the property of her husband in lieu of maintenance and, therefore, permanent prohibitory injunction for restraining the defendant was sought for.

Counsel for the respondent relied on a judgment titled Sunil Kumar v. Ram Prakash (1998) 2 SCC 77 and submitted that a coparcener has no right to get an injunction against Karta. He further submitted that respondent being Karta has legal right to alienate ancestral property in case of legal necessity and the petitioner has no right to pray for injunction restraining the defendant from alienating the suit land.

Courts observation on maintenance claim of wife vis-à-vis creation of charge over husband’s property

The Court relied on a judgment titled Kannan v. Maragathammal, 2012 SCC Online Mad 2285 and observed

“The Hindu Law Texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether joint or self-acquired. They recognise the subordinate interest of the wife in her husband’s property arising out of her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependants of their maintenance…”

“…..The decisions of the various High Courts tow the same line, recognise her subordinate interest in her husband’s property and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore is entitled to be maintained out of the profits of her husband’s property and, if so, under the express terms of S.39 she can enforce her right against the properties in the hands of the alienee with notice of her claim. Though the right of the wife to separate maintenance does not form a charge upon her husband’s property, ancestral or self-acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it can be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperiled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Such a charge can be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance.”

 In view of the observations above, the Court held that in the instant case only relief under Order 39, Rules 1 & 2, Code of Civil Procedure is sought and claim for maintenance has been submitted without presenting any Court order for the same. In light of the submission made by the petitioner herself that respondent has right to alienate property only in case of legal necessity, the Court further held that property being an ancestral property petitioner’s ‘son’ has not been made a party. In the said course of things a charge has not been created over the suit land towards maintenance of the plaintiff but the plaintiff i.e. the petitioner has right to take legal recourse in case of alienation of property.

In view of the above, the instant petition is disposed off without any interference in impugned orders.[Kubja Devi v. Chhape Ram,  2020 SCC OnLine HP 1829, decided on 05-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.”

Supreme Court: Answering important question pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005 (DV Act) in relation to right of residence in the shared household, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that

“The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household.”

In the judgment running into over 150 pages, the Court elaborately discussed and interpreted the provisions and scheme of DV Act. Overruling the law laid down in SR Batra v. Taruna Batra, (2007) 3 SCC 169, the Court held that respondent in a proceeding under Domestic Violence Act can be any relative of the husband and in event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household.

In SR Batra v. Taruna Batra, (2007) 3 SCC 169, a two judge-bench had held that where it was held that the wife is entitled only to claim a right under Section 17(1) to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.


KEY TAKEAWAYS FROM THE JUDGMENT


WHAT IS A SHARED HOUSEHOLD?

“Means and includes”

The definition of shared household in Section 2(s) of the DV Act is an exhaustive definition. The first part of definition begins with expression “means” which is undoubtedly an exhaustive definition and second part of definition, which begins with word “includes” is explanatory of what was meant by the definition.

The use of both the expressions “means and includes” in Section 2(s) of Act, 2005, thus, clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other.

Conditions to be fulfilled for a shared household

(i) person aggrieved lives or at any stage has lived in a domestic relationship.

(ii) (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and

(b)includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

“At any stage has lived”

The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” has been used to protect the women from denying the benefit of right to live in a shared household on the ground that on the date when application is filed, she was excluded from possession of the house or temporarily absent.

The shared household is contemplated to be the household, which is a dwelling place of aggrieved person in present time.

“… shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent. .”

Further, Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.

Hence, the words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not.

IS RIGHT TO RESIDENCE UNDER SECTION 19 AN INDEFEASIBLE RIGHT?

The right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law.

“While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties.”

WHO CAN BE A RESPONDENT?

There are two conditions for a person to be treated to be respondent within the meaning of Section 2(q), i.e.,

  • in a domestic relationship with the aggrieved person, and
  • against whom the aggrieved person has sought any relief under Act, 2005.

For the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant. Hence,

“To treat a person as the “respondent” for purposes of Section 2(q) it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person.”

NOTE: The Court in Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, where the Court has struck down the expression “adult male” from the expression “any adult male person” and held that restricting the meaning of respondent in Section 2(q) to only “adult male person” is not based on any intelligible differentia having rational nexus with object sought to be achieved. Hence, it is now permissible under definition of Section 2(q) to include females also. [Read the full report on the 2016 verdict here]

IS THERE ANY EXCEPTION TO THE RIGHT TO RESIDE IN SHARED HOUSEHOLD?

The expression “save in accordance with the procedure established by law”, in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household.

“In appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household.”

For example, when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself.

Further, the embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005.

CAN AN ORDER UNDER SECTION 19(1)(b) BE PASSED AGAINST A WOMAN?

Section 19 (1)(b) of DV Act provides that while disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order directing the respondent to remove himself from the shared household.

The Court held that while passing the order of residence under Section 19, more particularly under sub-section 19(1)(b) as per the proviso to Section 19(1), no order under clause(b) shall be passed against any person who is a woman.

ARE PROCEEDINGS UNDER THE DV ACT AND PROCEEDINGS BEFORE A CIVIL COURT, FAMILY COURT OR A CRIMINAL COURT, AS MENTIONED IN SECTION 26 OF THE DV ACT INDEPENDENT PROCEEDINGS?

The proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings under Section 125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/family court for the reliefs under the Hindu Adoption and Maintenance Act. However, the findings/orders passed by the one forum has to be considered by another forum.

CONCLUSION

  • The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
  • The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
  • A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

[Satish Chander Ahuja v. Sneha Ahuja, 2020 SCC OnLine SC 841, decided on 15.10.2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and P. Rajamanickam, JJ., addressed an appeal with regard to seeking interim maintenance when permanent maintenance was already granted.

Petitioners have filed the present appeal challenging the Family Court’s Order.

Husband sought divorce against the first appellant(wife) on the ground of cruelty.

During the pendency of the above petition, appellants filed an application under Section 7(1) of the Family Courts Act read with Section 25 of the Hindu Marriage Act, 1955 and Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the husband to pay a sum of Rs 10,000 to appellant 1 and Rs 5,000 to appellant 2 towards monthly maintenance.

Another application under Section 24 of the Hindu Marriage Act, 1055 read with Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the respondent to pay a sum of Rs 7,500 to appellant 1 and Rs 5, 000, was also filed.

Counsel for the appellants, M.P. Senthil and Counsel S. Jeyavel, for the respondent.

Issues to be considered:

  • Whether the petitioners are precluded from seeking interim maintenance by invoking the provisions of Section 24 of the Hindu Marriage Act r/w Sections 20 and 26 of the Protection of Women from Domestic Violence Act on the ground that they already got an order for payment of maintenance in D.V proceedings?

Analysis & Decision

Bench referred to Section 25 of the Hindu Marriage Act, 1955, which is in regard to the permanent Alimony and Maintenance.

Section 25(1) of HMA empowers the Court, while passing any decree to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband and by way of permanent alimony, an order granting maintenance can also be passed by the Court.

“…at any time, subsequent to the passing of decree also, the Court can order for granting maintenance on application made to it by either wife or the husband.”

Bench noted that the appellants cannot ask for interim relief, when permanent relief has already been granted to them.

In view of the above, court relied on the decision of Rakesh Malhotra v. Krishna Malhotra, 2020 SCC OnLine SC 239 wherein the following was dealt with:

After grant of permanent alimony under Section 25 of the 1955 Act, prayer made by wife before Magistrate under Section 125 of Code for maintenance over and above what has been granted by Court under Section 25 of Act. Impugned order allowing prayer was set aside with direction that application preferred under Section 125 of Code shall be treated and considered as one preferred under Section 25(2) of Act.

What the appellants should have done in the present matter?

Since, the appellants had already received maintenance in the DV proceedings under Section 20 of the DV Act which is permanent in nature, yet if due to a change in the circumstances the said order required modification or alteration, they can approach the same Court seeking the relief by invoking Section 25(2) of the DV Act or the Family Court can also be approached to exercise the power under Section 25(1) of the HMA.

But the resort of filing another application before another forum that too in the nature of interim relief should not be adopted.

Section 26 of the DV Act shows that the aggrieved person may seek any relief under Sections 18 to 22 of DV Act in any legal proceedings before a Civil Court/Family Court or Criminal Court as additional reliefs.

In the present case, the petitioner had already received an order in the petition properly filed under Section 12 of the DV Act before the Additional Mahila Court, Tiruchirappalli and that being so, they were not entitled to file a petition before the Family Court by invoking the provision under Section 26(1) of the DV Act, seeking interim relief.

Therefore, in the High Court’s opinion, the  Family Court Judge had rightly dismissed the application. [Gomathi v. Sacraties,  2020 SCC OnLine Mad 2754, decided on 15-09-2020]

Case BriefsHigh Courts

Allahabad High Court: Vivek Kumar Birla, J., while addressing a matter with regard to “shared household”, held that,

“daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on the suit property after the marriage of the son of the plaintiff with the appellant.”

Appellant was married to the plaintiff’s son — Vijay Gandhi. In the year 2013, Vijay Gandhi deserted the appellant and filed a divorce petition under Section 13 of the Hindu Marriage Act.

Further, it has been noted that an FIR was lodged against the appellant by the plaintiff.

Plaintiff is the owner of the property wherein he permitted his son and the defendant to live on the first floor of his house. Defendant started harassing the plaintiff who is old and handicapped along with his wife.

Suit for Eviction

In view of the above incident, the plaintiff asked his son to vacate the house with the defendant, who later came back and refused to vacate the house. Hence suit for eviction was filed against the defendant.

Substantial question in the present appeal

(I) Whether as per definition of shared household provided under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 appellant daughter-in-law can be evicted without seeking a decree of eviction against son with whom she had admittedly moved on the first floor of the suit property after the marriage of the son of the plaintiff with appellant?

Supreme Court in its decision, S.R. Batra v. Tarun Batra, (2007) 3 SCC 169, while considering the aspect of “shared household” held that where the plaintiff is the exclusive owner, it cannot be called a “shared household”. The wife’s claim for alternative accommodation against the plaintiff was rejected and was held that it can be claimed only against the husband and not against the in-laws or other relatives.

S.R. Batra v. Tarun Batra, (2007) 3 SCC 169: a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

Hence, in the Court’s opinion, no substantial question of law arose or can be raised in the present second appeal.

Order 1 Rule 3 and Rule 9 CPC

Further, the Court added that, it is not in dispute that the husband was not residing in the suit property and left the house. It is also not being questioned that if parents permit his son to live in their house he would be a licensee. If his wife is also living with him, she would also be a licensee.

Where the son has left and is not residing in the suit property, no relief is being or is claimed against him. Since he is not living in the suit property, question of filing a separate suit or which may attract any common question of law or fact would also not arise.

Lastly, answering the substantial question of law in the negative, bench once again cited the Supreme Court decision in S.R. Batra with regard to the shared household and the argument for counsel for the respondent (wife) that definition of the shared household includes a house where the person aggrieved lives or at any stage had lived in a domestic relationship was specifically considered and rejected.

Court added that a reading of the said judgment, subject to correction, prima facie, reflects that husband was not a party to the suit and it was held that the claim for alternative accommodation can only be made against the husband and not against the in-laws or other relatives.

Therefore, in view of the definition of the shared house, as provided under Section 2 (s) of the Act, 2005 daughter-in-law can be evicted without seeking a decree of eviction against the son with whom she had admittedly moved in the suit property after the marriage of the son of the plaintiff.

In view of the above observations, petition was dismissed. [Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J. laid modified directions and affidavit of assets, income and expenditure to be filed by both the parties at the very threshold of a matrimonial litigation. The Court has modified the directions and the format of affidavit already issued in earlier judgments of the Delhi High Court.

These modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 CrPC; Hindu Adoption and Maintenance Act, 1956; Special Marriage Act, 1954; Indian Divorce Act, 1869; Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.

Earlier directions and affidavit

The directions to be followed while dealing with matrimonial cases were first issued in Kusum Sharma (1) v. Mahinder Kumar Sharma, 2014 SCC OnLine Del 7672. Further, in exercise of the powers under Section 10(3) of the Family Courts Act, 1984 read with Sections 106 and 165 of the Evidence Act and Article 227 of the Constitution of India, the format of affidavit of assets, income and expenditure was formulated by the Court in Kusum Sharma (2) v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793 and the directions were modified. By its judgment in Kusum Sharma (3) v. Mahinder Kumar Sharma, 2017 SCC OnLine Del 11796, the Court modified the affidavit formulated in Kusum Sharma (2). Finally, in Kusum Sharma (4) v. Mahinder Kumar Sharma, 2017 SCC OnLine Del 12534, the directions and the affidavit were further modified. The modified directions in Kusum Sharma (4) have been in effect since 1st January 2018.

Need for modification

The High Court has now modified the earlier affidavit in Kusum Sharma (4) to make it more comprehensive. In the earlier judgments, the High Court considered International Best Practices including 10 affidavits of assets, income and expenditure used in 5 countries. 50 more formats of affidavits of assets, income and expenditure of various countries namely USA, UK, Ireland, Singapore, Canada, Australia and South Africa had now come to the notice of the Court. Thus, the Court was of the view that its judgment in Kusum Sharma (4) warrants modification.

The Bhandari Engineers case connection

In Bhandari Engineers & Builders( P) Ltd. (1) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-12-2019), the Delhi High Court had formulated an affidavit of assets, income and expenditure to be filed by the judgment-debtor in execution cases. By its decision in Bhandari Engineers & Builders( P) Ltd. (2) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-8-2020), the Court modified and improved the format of the affidavit to make it more comprehensive and further directions were passed so that the execution cases are decided within a period of 1 year from the date of their institution. In the Court’s opinion, the affidavits formulated in Bhandari Engineers (2) are far more comprehensive than the affidavit formulated by the Court for matrimonial cases. Therefore, the Court considered it appropriate to incorporate the benevolent features of Bhandari Engineers (2) in the format of the affidavits of assets, income and expenditure in matrimonial cases.

Affidavit of Assets, Income and Expenditure in matrimonial cases

The modified affidavit of assets, income and expenditure (“Annexure A2” in the present Judgment) is very comprehensive and is useful to determine the maintenance in matrimonial litigation.

Salaried person

A salaried person is required to disclose the particulars of his employment including salary, DA, commissions, incentives, bonus, perks, perquisites, other benefits, Income tax, etc.

Self-employed person

A self-employed person is required to disclose the nature of business/profession, share in the business, net worth of the business, number of employees, annual turnover/gross receipts, gross profit, Income Tax, net income and regular monthly withdrawal/drawings from the business.

Income from other sources

The parties are further required to disclose income from other sources, namely, agricultural income, rent, interest on bank deposits and other investments, dividends, mutual funds, annuities, profit on sale of movable/immovable assets, etc.

Assets

With respect to the assets, the parties are required to disclose the particulars of the immovable properties, financial assets including bank accounts, DEMAT accounts, safety deposit lockers; investments including FDRs, stocks, shares, insurance policies, loans, foreign investments; movable assets including motor vehicles, mobiles, computer, laptop, electronic gadgets, gold, silver and diamond jewellery, etc.; intangible assets; garnishee(s)/trade receivables; corporate/business interests; disposal and parting away of properties; properties acquired by the family members, inheritance.

Standard of living and lifestyle

The affidavit requires the parties to disclose their standard of living and lifestyle, namely, credit/debit cards, membership of clubs and other associations, loyalty programmes, social media accounts, domestic helps and their wages, mode of travel in city and outside city, category of hotels, category of hospitals for medical treatment, frequency of foreign travel, frequent flyer cards, brand of mobile, wrist watch, pen, expenditure ordinarily incurred on family functions, festivals and marriage of family members, etc.

Household expenditure, etc.

The affidavit further requires the disclosure of expenditure on housing, household expenditure, maintenance of dependents, transport, medical expenditure, insurance, entertainment, holiday and vacations, litigation expenses, discharge of liabilities, etc.

 Modified Directions

The modified directions laid down by the Court in the present decision in Kusum Sharma (5) are delineated below:

(1) The Court has to ascertain the financial capacity/status of the parties for determining the maintenance and permanent alimony. A comprehensive affidavit of assets, income and expenditure of both the parties is necessary to determine their financial capacity/status.

 (2) Upon completion of the pleadings in the maintenance application, the Court shall fix the date for reconciliation and direct the parties to simultaneously file the affidavits of their assets, income and expenditure. The Court shall also direct the party seeking maintenance to produce the passbook of his/her savings bank account in which maintenance can be directly deposited/transferred by the opposite party.

(3) The Court shall simultaneously take on record the affidavit of assets, income and expenditure of both the parties. The simultaneous filing of the affidavit by the parties is very important and should be strictly adhered to. The simultaneous filing of the affidavit by the parties would avoid any undue advantage to the party who files his/her affidavit later. It is clarified that the affidavit of assets, income and expenditure is not to be filed along with the petition/application or written statement/reply.

(4) If a party is carrying on the business as proprietor of proprietorship concern/partner of a partnership concern/director of a company/member of a HUF/trustee of a trust/ member of a society or in any other form/entity, the Court may consider directing the party to file an additional affidavit with respect to the assets of the proprietorship concern/partnership concern/ company/society/HUF/Trust, as the case may be, in the format of Annexure B1 attached to Bhandari Engineers (2).

(5) In pending maintenance cases, if the parties have not already filed the affidavit of their assets, income and expenditure, the Court shall direct the parties to file their affidavit in the format of Annexure A2.

(6) If the reconciliation fails, the Court shall grant an opportunity to the parties to respond to the affidavit of the opposite party and list the maintenance application for hearing.

(7) The Courts shall ensure that the filing of the affidavits by the parties is not reduced to a mere ritual or formality. If the affidavit of the party is not in the prescribed format or is not accompanied with all the relevant documents, the Court may take the affidavit on record and grant reasonable time to the party to remove the defects/deficiencies.

(8) 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.

(9) If the party does not truly disclose all his assets and income, the opposite party is at liberty to serve the interrogatories under Order 11 CPC and/or seek production of relevant documents from the party filing the affidavit.

(10) In appropriate cases, Court may order interrogatories, discovery, inspection, production of any document and/or order any fact to be proved by affidavit under Section 30 CPC.

(11) The Court shall, thereafter, consider whether the oral examination of the party is necessary under Section 165 of the Evidence Act. If so, the Court shall proceed to examine the party to elicit the truth. The principles relating to the scope and powers of the Court under Section 165 of the Evidence Act have been summarised in Ved Parkash Kharbanda v. Vimal Bindal, 2013 SCC OnLine Del 994, which may be referred to.

(12) If the admitted income of the parties is on record, such as, in the case of a salaried employee whose salary slip is on record, the Court may fix ad-interim maintenance on the basis of the admitted documents pending filing of the affidavit of the assets, income and expenditure by both the parties. The Court may record the statement of the parties, if considered necessary for fixing the ad-interim maintenance.

(13) If any party delays in filing of the affidavit of assets, income and expenditure or the affidavit filed by a party is not in terms of these directions or a party delays the disclosure of further information/documents and the delay is causing hardship, the Court is at liberty to fix ad-interim maintenance after hearing the parties.

(14) If the statements made in affidavit of assets, income and expenditure are found to be incorrect, the Court shall consider its effect by drawing an adverse inference or imposing additional cost, while fixing the maintenance. However, an action under Section 340 CrPC is ordinarily not warranted in matrimonial litigation till the decision of the main petition unless the Court, for the reasons to be recorded, considers it expedient in the interest of justice, to deal with it earlier.

(15) At the time of issuing notice on the petition for dissolution of marriage, the Court shall consider directing the petitioner to deposit such sum, as the Court may consider appropriate for payment to the respondent towards interim litigation/part litigation expenses; except in cases, such as, divorce petition by the wife who is unable to support herself and is claiming maintenance from the respondent husband.

(16) The interim litigation expenses directed by the Court at the stage of issuing notice, does not preclude the respondent from seeking further litigation expenses incurred by the respondent at a later stage. The Court shall consider the respondent‘s claim for litigation expenses and pass an appropriate order on the merits of each case.

(17) At the time of passing a decree of divorce, the Court shall bring to the notice of the party concerned, as the case may be, that he/she can claim permanent alimony without prejudice to his/her right to challenge the decree of divorce and if the party seeks permanent alimony, at that stage, for which an oral prayer/application is sufficient, the Court shall fix the permanent alimony on the basis of the affidavits of assets, income and expenditure, after hearing both the parties. However, if the affidavits have not been filed at the stage of fixing the permanent alimony, the Court shall direct the parties to file the same before fixing the permanent alimony.

(18) In Bhandari Engineers & Builders( P) Ltd. (2) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-8-2020) the Delhi High Court has laid down comprehensive guidelines and has formulated affidavit of assets, income and expenditure to be filed by the judgment-debtor in execution proceedings, which may be considered in execution cases of the maintenance order apart from following the specific statutory provisions such as Sections 125 to 127 CrPC.

(19) The affidavit of assets, income and expenditure is to be treated as guidelines to determine the true financial capacity/status of the parties. The Courts are at liberty to determine the nature and extent of information/documents necessary and to direct the parties to disclose relevant information and documents to determine their financial capacity/status. The Courts are at liberty to pass appropriate directions as may be considered necessary to do complete justice between the parties and in appropriate cases, such as, the cases belonging to the lowest strata of the society or case of a litigant who is a permanently disabled/paralytic, the Court may, for reasons to be recorded, dispense with the requirement of filing of the affidavit or modify the information required.

(20) These modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 CrPC; Hindu Adoption and Maintenance Act, 1956; Special Marriage Act, 1954; Indian Divorce Act, 1869; Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.

(21) Matrimonial jurisdiction deserves a special attention and the maintenance applications should be decided expeditiously.

(22) The Courts below shall expedite the maintenance proceedings and shall make an endeavour to decide them within the prescribed time. The Family Courts shall send the list of all pending maintenance cases which are more than one year old, through the Principal Judge, Family Court. The list shall contain the name of the case; date of institution; number of hearings that have taken place; and the reasons for such delay. List be prepared according to the seniority, i.e. the oldest case shall be mentioned first. The Principal Judge, Family Court shall compile the lists of all Family Courts and shall send them to the Registrar General of the Delhi High Court by 31st December 2020 for being placed before the High Court.

Ancillary directions and suggestions

(a) The amici curiae submitted that the matter be kept pending for seeking feedback/comments of the Family Courts after implementation of the modified directions/guidelines. The matter is to be listed on 18th December 2020.

(b) The Court was of the view that the mandatory filing of the affidavit of assets, income and expenditure by the parties in a detailed prescribed form should be incorporated in the statutes, as in the developed countries. The Court was of the view that this suggestion be considered by the Central Government. Copy of the present judgment along with Annexure A2 is directed to be sent to Chetan Sharma, ASG, for taking up the matter with Ministry of Law and Justice.

(c) The modified directions and format of affidavit of assets, income and expenditure (Annexure A2) is directed to be uploaded on the website of the District Court (in .pdf format) to enable the lawyers/litigants to download the same.

(d) Copy of the present judgment and modified format of the affidavit of assets, income and expenditure (Annexure A2) is directed to be sent to the Registrar General of this Court who shall circulate it to the District Judge (Headquarters) and Principal Judge, Family Courts (Headquarters) for being circulated to all the concerned courts.

(e) Copy of the judgment along with the modified format of the affidavit of assets, income and expenditure (Annexures A2) is directed to be sent to the Delhi Judicial Academy to sensitise the judges about the modified directions laid down by the High Court.

(f) National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of various High Courts. Copy of the present judgment along with Annexure A2 is directed to be sent to National Judicial Academy.

Note of appreciation

The Court appreciated the assistance rendered by Sunil Mittal, Senior Advocate and Anu Narula, Advocate as amici curiae. The Court also appreciated the extensive research on corresponding law in other countries by Akshay Chowdhary, Law Researcher, attached to the Delhi High Court. [Kusum Sharma (5) v. Mahinder Kumar Sharma, 2020 SCC OnLine Del 931, decided on 6-8-2020]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a criminal revision petition filed by the petitioner-wife against the order of the Appellate Court whereby her appeal against the trial court order rejecting the application for grant of interim maintenance was dismissed.

The petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with it filed another application under Section 23 seeking interim maintenance. The application was rejected by the trial court on the sole ground that the petitioner and the respondent-husband were equally qualified. That she was previously employed and had not disclosed any cogent explanation so as to disable her to earn her living. The appeal filed by the petitioner against this order was dismissed by the Appellate Court. Aggrieved thereby, the petitioner filed the present revision.

Arvind Kumar with Vaibhav Kumar, Advocates represented the petitioner. Per contra, Sofia Bhambri, Advocate appeared for the respondent.

The High Court was of the view that both the courts below erred in not appreciating the decisions wherein it had been specifically held: “capacity to earn and actually earning are two different things.” Reference was made to the recent decisions in Kanupriya Sharma v. State, 2019 SCC OnLine Del 8816 and Bisht v. Dharmender Singh Bisht, 2019 SCC OnLine Del 8775.

In the present case, the Court noted that it was not the case of the respondent that petitioner was actually employed or earning. The only ground taken was that she is qualified and capable of earning. Reliance was placed on the Supreme Court decision in Shailja v. Khobbanna, (2018) 12 SCC 199, wherein it was held that whether the wife is capable of earning or whether she is actually earning two different things. The High Court observed: “Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependent and does not have any source of income.”

In such view of the matter, it was held that the impugned orders of the trial court as well as the Appellate court could not be sustained and were, therefore, set aside. Accordingly, the petition was allowed and the matter was remitted to the trial court with a direction to pass appropriate order assessing interim maintenance after taking into consideration the income of the respondent as well as his dependant family members within 3 months.[Binita Dass v. Uttam Kumar, 2019 SCC OnLine Del 9666, decided on 09-08-2019]

Case BriefsHigh Courts

Bombay High Court: M.G. Giratkar, J. refused to interfere with an order of the Judicial Magistrate as confirmed by the Sessions Judge, whereby the application filed by the applicant under Section 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was dismissed.

The applicant married to the respondent in 1999, However, a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 had been passed by the family court in 2008 at the instance of the husband. The application under the DV Act was filed by the applicant in 2009, i.e., subsequent to the grant of divorce. The respondent resisted the application on the ground that there was no “domestic relationship” between them and therefore any application under DV Act was not maintainable. The application was rejected by the Judicial Magistrate as well as the Sessions Judge. Aggrieved thereby, the applicant filed the present revision application.

Amruta A. Ghonge, Advocate led arguments for the applicant. Per contra, R.N. Sen, Advocate appearing for the respondent, resisted the application.

After perusing a conspectus of decisions of the Supreme Court as well as High Courts, the Court came to the conclusion that no relief could be granted to the applicant. It was observed: “In the present case, divorce was granted by the family Court vide order dated 30-06- 2008. Application under the DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in Criminal Appeal No. 235 of 2015 are perfectly legal and correct.” In such view of the matter, the revision application was dismissed. [Sadhana v. Hemant, 2019 SCC OnLine Bom 659, decided on 18-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a petition filed by petitioner (wife) for striking off respondent’s (husband) defence in proceedings pending under the Protection of Women from Domestic Violence Act, 2005.

Earlier, the trial court vide its order dated 2-3-2017 had dismissed the wife’s application for striking off husband’s defence observing that non-payment of maintenance/arrears of maintenance cannot be a ground to do so. Aggrieved thereby, the wife preferred the present petition.

Jatin Sehgal, Adhirath Singh and Raymon Singh, Advocates appeared for the wife. On the other hand, the husband was represented by Laksh Khanna, Advocate who supported the trial court’s order.

The High Court noted that the respondent was in arrears of Rs 9,00,000 towards payment of maintenance to the wife. Furthermore, the Appellate Court vide its order dated 14-7-2017 evolved an equitable solution whereby husband’s employer was to deduct Rs 50,000 from his salary every month and pay that sum directly to the wife. Out of this, Rs 25,000 was to be the current monthly maintenance amount, and remaining Rs 25,000 were to be adjusted against the arrears. However, this order was not complied with by the husband.

In view of such facts and circumstances, the Court found that the husband’s failure to clear arrears of maintenance in terms of the Appellate Court’s order justified striking off his defence. Consequently, the wife’s application was allowed. [Swati Kaushik v. Ashwani Sharma, 2019 SCC OnLine Del 7133, dated 11-2-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of R.K. Gauba, J. dismissed a husband’s petition filed against the order of Metropolitan Magistrate as confirmed by Additional Sessions Judge whereby he was directed to pay interim maintenance allowance of Rs 3500 to his wife and Rs 2000 for his minor daughter.

The parties were married to each other and a daughter was born to them from the wedlock. On account of certain circumstances, the wife left the matrimonial home along with the daughter. Subsequently, she filed a petition under Section 12 of the Protection of Women and Domestic Violence Act, 2005. On her application, the Metropolitan Magistrate directed the husband to pay the interim maintenance allowance as mentioned above. The husband challenged the order in an appeal which was dismissed by Additional Sessions Judge, Aggrieved thereby, he filed the present petition under Section 482 CrPC.

S.C. Singhal, Advocate for the husband submitted that he was unemployed and therefore unable to pay the allowance. It was also submitted that the wife was gainfully employed in a beauty parlour for the proof of which certain photographs were produced.

The High Court held that mere photographs showing the wife’s presence in a parlour were not sufficient to prove that she had a regular income sufficient to maintain herself and the minor daughter, Furthermore, the husband made a cursory statement that he was unemployed, but did not disclose as to how he had been surviving all along. The Court was of the view that he was concealing facts and intentionally withholding information about his income. In such a situation, the Court approved the course adopted by Metropolitan Magistrate as per which he assumed husband’s income notionally on the basis of minimum wages and passed the order of interim maintenance. Resultantly the petition was dismissed. [Khem Chand v. Bhagwati, 2019 SCC OnLine Del 6776, Order dated 22-01-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of R.K. Gauba, J. dismissed a petition filed by the petitioner-wife for a right to possession in the house owned by her father-in-law.

The wife had filed a suit under Section 12 of the Protection of Women from Domestic Violence Act, 2005 impleading her husband and father-in-law. Concededly, the wife lived with her son in a portion of the house which was owned by the father-in-law. The wife submitted that she was allowed to live in the said house under a family arrangement. She claimed a right to possession in the shared household under the Act. The question that arose for consideration was whether the property in question or any portion thereof could be described under the facts and circumstances as a shared household?

The High Court perused Section 2(s) of the Act which describes a shared household. It was conceded at the bar that right of residence under the above mentioned special legislation can be claimed and pressed only against the husband and not against the father-in-law. It was observed as inherent in definition of shared household that the person against whom the right of residence is claimed qua the household described as such, should have a right, title or interest therein. In the facts of the present case, it was held that the wife has no such right of residence, as her claim which was through her husband could not be sustained. The partition suit filed by the husband against his father as also the claim brought through her son had already been rejected by the civil court which had attained finality. It was held that the petitioner was only a permissive user of the house and as such could not force herself on the owner of the property, particularly when she had no vested or legal right to claim residence in his property. For reaching the said conclusion, the Court relied on the Supreme Court decision in S.R. Batra v. Taruna Batra, (2007) 3 SCC 169. The petition was accordingly dismissed. [Manju Gupta v. Pankaj Gupta,2018 SCC OnLine Del 11337, Order dated 30-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J., dismissed a criminal revision petition filed against the decision of the Additional Sessions Judge who reversed the judgment of the Judicial Magistrate allowing the application filed by the revisioner under Section 12 of Domestic Violence Act, 2005.

The revisioner belong to Jain Hindu community and was previously married to one Shantaram Mahadu. Subsequently, on separation, she had an affair with Respondent 2, a Muslim by religion. The revisioner converted to Islam and contracted marriage with him. However, dispute arose and the couple separated. The revisioner filed an application under Section 12 which was opposed by Respondent 2 mainly on the ground that marriage between the two was not legally possible as they had prior subsisting marriages. However, the Magistrate allowed the application, which decision was reversed by the Sessions Court in the impugned judgment.

The High Court interpreted the words “relationship in the nature of marriage” appearing in Section 2(f) which defines “domestic relationship”. Noting the interpretation of the words by the Supreme Court in Velusamy v. D. Patchiammal, (2010) 10 SCC 469, as well as Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, the High Court observed that all live in relationships are not in the nature of marriage. Not all live in relationships are covered by Section 2(f). It is only those which qualify to be in the nature of marriage that are governed by the provision. In order to constitute such relationship, a legal marriage between the two must be possible. Since, in the instant case, first marriage of the revisioner was still subsisting, there could not have been a possibility of a legal marriage between her and Respondent 2. Further, a statute should be interpreted in a manner which would not promote illegality. Section 2(f) could not be interpreted in such a way so as to promote adulterous relationships. Thus, it was held that the instant relationship was not covered under “domestic relationship”, and the revisioner was not entitled to any relief under the Act. The revision was, accordingly, dismissed. [Reshma Begum v. State of Maharashtra,2018 SCC OnLine Bom 1827, dated 25-07-2018]

Case BriefsHigh Courts

Bombay High Court (Goa Bench): A Single Judge Bench of the Goa Bench comprising of C.V. Bhadang, J. allowed a criminal writ petition filed against the judgment of the Sessions Judge whereby the petitioner was directed to pay maintenance to his adult son.

Earlier, Respondent 1 (wife of the petitioner) had filed an application under Section 12 of Protection of Women from Domestic Violence Act 2005 (DV Act), seeking, inter alia, monetary reliefs. Learned Magistrate by his order granted interim maintenance of Rs. 8000 per month for Respondent 2, son of the petitioner. It was not disputed that Respondent 2 was a major, aged 25 years. The petitioner filed an appeal before the Sessions Judge against the order of the Magistrate contending that under the provision, only a ‘child’ is entitled to maintenance. However, the Sessions Judge dismissed his appeal holding that the petitioner was liable to pay maintenance to Respondent 2 since he was an engineering student with no source of income. Feeling aggrieved, the petitioner approached the High Court.

In order to settle the issue, the High Court referred to Section 2(b) of the DV Act. On perusal of the section, the Court observed that ‘child’ within the meaning of the section means any person below the age of 18 years. In light of the undisputed fact that Respondent 2, son, was 25 years of age, the High Court held that he could not be included within the definition of ‘child’ as envisaged under Section 2(b). Hence, the petition was allowed and the impugned order was set aside. [Antonio De Matos Sequira Almeida v.  Felicidade Wilma Almeida, 2018 SCC OnLine Bom 1123, dated 04-06-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Janak Raj Kotwal, J. quashed the proceedings pending against the petitioners under Section 12 of J&K Protection of Women from Domestic Violence Act, 2010.

The respondent filed an application under Section 12 against her in laws. The petitioners sought quashing of the said applications and proceedings arising therefrom. Contention of the petitioners was that they were never in a domestic relationship with the respondent in as much as she never stayed with them in a shared household.

The High Court perused the record and found favour with the contention put forth by the petitioners. Section 2(a) defined the term ‘aggrieved person’ and Section 2(f) defined ‘domestic relationship’. Reading both the sections in juxtaposition, the High Court opined that an application under Section 12 can be filed by a women against whom she is in a domestic relationship, i.e., with whom she lives. In the present case, it was clear that the respondent and her husband had stayed in Noida all throughout their wedded life, whereas the respondents were residents in Mohali. Therefore, the domestic relationship was not established between petitioners and the respondent and hence, Section 12 could not be attracted to the case. Accordingly, the impugned application was quashed. [Raghav Agnihotri v. Neha Sharma, 2018 SCC OnLine J&K 301, dated 18-05-2018]

Case BriefsHigh Courts

High Court of Himachal Pradesh: A Bench comprising of  Sandeep Sharma, J. has set aside the judgment passed by Fast Track Court and restored the judgment passed by the trail court, in which the complaint filed by the wife of the petitioner under Section 12 of the Domestic Violence Act was dismissed.

The complainant wife initially filed a complaint under Section 12 of the Domestic Violence Act alleging domestic violence against her husband and in-laws. This complaint was rejected by the trial court for want of merit in the application. An appeal was filed to the Fast Track Court, in which even though the court found no proof of domestic violence, it granted the complainant a maintenance allowance after observing that she had no independent source of income. Against this judgment, the petition was filed by the husband of the complainant.

The petitioner argued that since no evidence was led by the complainant which proved violence against him, the maintenance allowance was not tenable in law. The court agreed with the arguments of the petitioner and observed that even the appellate court was not convinced of evidence led by the complainant. Perusal of the complaint by the court nowhere suggested that maltreatment and violence was ever meted out to her. Further, neither any specific instance was reported with regard to the violence, nor any independent witness from the locality was associated by the complainant to prove the allegations. Further, the Court found evidence that the complainant left the house on her own after being caught red handed with a person, with whom she had illicit relations. In view of these findings, the Court concluded that the appellate court got swayed by emotions and ignored overwhelming evidence while granting maintenance. Consequently, the judgment of the appellate court was set aside and judgment of the trial court was upheld. [Anil Kumar v. Shashi Bala, 2017 SCC OnLine HP 626, decided on 2-5-2017]

Case BriefsHigh Courts

High Court of Rajasthan: While deciding the validity and legality of the criminal miscellaneous petition filed under Section 482 CrPc, by the petitioners, the Bench comprising of P.K.Lohra, J., while exercising its power under Section 482 Cr PC, held that the criminal complaint filed against the petitioner, under Sections 498-A, 323, 406 & 504  IPC and Section 12 of the Domestic Violence Act, 2005 if allowed to be continued before the trail court, would obviously result in abuse of the process of the court since the complaint lacks mentioning of specific instances of domestic violence directed towards the complainant.

The complainant is the respondent/wife of the deceased husband, who died while the proceedings were taking place in the trial court on account of complaint lodged by the her under DV Act and IPC against the deceased husband, his parents and her sister-in-law. The learned counsel for the petitioner submitted that since the acrimony started between the deceased husband and respondent wife since then the latter is not living with the former hence there is no iota of evidence to indicate that she has been subjected to domestic violence by the petitioners therefore, the complaint has been designed to harass the petitioners, which is a glaring example of abuse of the process of the Court.

The Court allowing the instant petition held that the bare reading of the complaint makes it abundantly clear that it does not disclose any specific instance of domestic violence against the petitioners hence in the absence of concrete proof relating to the instance of domestic violence a casual reference of the name of the family members i.e. petitioners in the complaint without there being any allegation of their active involvement in the matter is sufficient to conclude that complaint is in fact designed to harass the petitioners and if the criminal complaint is allowed to be proceeded in the trial court it would obviously result in abuse of the process of the Court. [Sudama Dutt Sharma v. State Of Rajasthan, Criminal Misc. (Pet.)  No. 1524 of 2011, decided on 8th November, 2016]

Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding upon the issue that whether a complaint under the Domestic Violence Act is maintainable even after a decree of divorce has been passed, the bench of Anita Chaudhry, J., held that the provisions of the Domestic Violence Act can only be invoked if the marital relationship is in existence, therefore once a marital relationship is ended by a decree of divorce, a complaint under Domestic Violence Act cannot be filed at all.

The present case was filed seeking the quashment of complaint filed under the Domestic Violence Act. It is to be noted that the marital relationship between the petitioner and his wife had ended by an exparte divorce decree. The counsel for the petitioner, Sukhbir Singh contended that, since the marriage of the petitioner and his wife has ended therefore the complaint under the Domestic Violence Act is not maintainable.

The Court perused the relevant provision of the Domestic Violence Act, namely Section 2(a) and 2(f) while answering the accompanying question that whether a divorced woman is included in the definition of an ‘aggrieved person’. It was observed by the Court that the language of the concerned provision uses ‘who is’ and ‘has been’, both of which have been used in the present tense, clearly establishing that there has to be a marital relationship in existence. Similarly, Section 2(f) stresses about the existence of a relationship by marriage or a relationship in the nature of marriage at the time. The expression used is ‘are related’ by marriage, which again is in present tense. The relevant provisions indicate the legislative intent to protect women who are living in a domestic relationship. Therefore for a complaint under the Domestic Violence Act to sustain, it is necessary that the marriage between the aggrieved person and the respondent is in existence. [Amit Agarwal v. Sanjay Aggarwal, 2016 SCC OnLine P&H 4200, decided on 31.05.2016]