Latest News
Back
Document:
SUPREME COURT: THE AFFIDAVIT OF DECLARATION OF ASSETS AND LIABILITIES SHOULD BE FILED BY BOTH THE PARTIES IN MAINTENANCE CASE.
The affidavit to be submitted in maintenance cases should also include specifics of the court action and maintenance being paid.
Affidavit of Declaration of Assets and Liabilities shall be filed by all parties in all maintenance cases, including ongoing proceedings before the Family Court / Tribunal Court / District Court / Magistrate Court of Justice concerned, as the case may be, in the world, the Apex Court delivered an important judgment on 4 November 2020. The Constitutional Bench of Justices Indu Malhotra and R. Subhash Reddy have attached the model affidavits as Enclosures I, II, and III with the judgment passed. Although e, the bench noted that, whether the parties belong to the Economically Weaker Sections (EWS) or live below the Poverty Line (BPL), or are casual employees, the obligation to file an affidavit will be waived. The pleadings made in the maintenance applications and the responses filed should be responsible for the pleadings; if false claims and misstatements are made, the Court may consider the commencement of u / S proceeding. 340 Cr. P.C. and, for contempt of the Court, the Court stated. Personal Details:-
- Information on court cases and maintenance shall be paid
- Descriptions of the dependent family members
- Medical information of the respondent and/or related family members;
- Children's descriptions of the parties
- The details of the depositor's revenue,
- Properties (movable and immovable) owned by the Depositor;
- The details of the responsibility of the depositor,
- The essence of jobs (self-employed persons / professionals / business persons / entrepreneurs);
- Details collected by the Depositor on the profits, properties, and liabilities of the other spouse;
- Particulars of the Claimant or the other Partner, whether the Parties are Non-Resident Indians, Overseas Citizens of India, Foreign Nationals or Non-Residents of India; etc
“Parties do not disclose the correct details, and suppress vital information”, the Court observed. The question of temporary maintenance is currently determined on the grounds of pleadings where a certain amount of guesswork or rough calculation is done to allow a prima facie determination of the amount to be awarded. "It is also found that all sides present scanty material, do not reveal the correct specifics, and withhold critical evidence, which makes it impossible for the Family Courts to make an impartial determination of the award of interim maintenance. Although there is a propensity on the part of the wife to exaggerate her desires, there is a similar tendency on the part of the husband to cover his real profits. It has therefore become important to set down a mechanism for streamlining the proceedings, because a dependent wife, who has no other source of income, may have recourse to borrowings from her parents/parents during the interregnum to support herself and her minor children before she continues to obtain interim maintenance," the court opined.
The court noted, however, that the affidavit to be filed by parties living in urban areas would require that it be completely separate from that available to rural areas or tribal areas. Enclosures 1 and II also deal with details of the Affidavit for Non-Agricultural Deponents and (II) details of the Affidavit for Agrarian Deponents. Since the state of Meghalaya has a primarily tribal community that embraces the matrilineal structure of culture, a separate Affidavit model has been created for it.
The Court has released the following guidelines:
- The Affidavit of Declaration of Assets and Liabilities annexed to Enclosures I, II, and III of this judgment, as appropriate, shall be submitted by the parties in all proceedings relating to maintenance, including proceedings pending before the Family Court / District Court / District Court, as the case may be, throughout the country;
- The claimant making the maintenance allegation would be expected to file a succinct declaration with the Affidavit of Disclosure of Assets;
- The Courts should not allow more than two chances for application to the respondent of the Affidavit of Declaration of Assets and Liabilities. If the respondent delays the filing of the reply with the Affidavit and demands more than two adjournments for that reason, the Court may deem the exercise of the right to revoke the protection of the respondent if the behavior is considered to be willful and contumacious in delaying the proceedings. Failure to file an affidavit within the required time period can result in the decision of the Family Court to make an application for maintenance based on the affidavit submitted by the claimant and the pleadings in the record;
- The above format may be changed by the Court involved in the conditions of the case are the same. It will be left to the judicial discretion of the Court concerned to give the requisite orders in this respect.
- Where, in addition to the information found in the Affidavits of Disclosure, more information is needed, the Court concerned may offer appropriate orders in respect of that information.
- If there is any disagreement as to the statement made in the Affidavit of Disclosure, the aggrieved party must demand the consent of the Court to serve the interrogatories and compel the development of the related documents by the opposite party under Order XI of the CPC; if the Affidavit is filed, the Court may rely on the provisions of Order X of the C.P.C or Section 165 of the Proof Act 1872, if any. The Court can, if necessary, rely on Section 106 of the Proof Act, 1872, Since the profits, assets, and liabilities of the partner fall under the personal knowledge of the party concerned.
- Whether, during the course of the trial, there is a change in the financial condition of either party, or there is a change in any related circumstances, or if any new evidence is revealed, the party may request an amended / additional affidavit to be accepted by the court at the time of final judgment.
- The pleadings made in the maintenance applications and the responses filed should be responsible for the pleadings; if false claims and false representations are made, the Court may consider the commencement of u / S proceeding. 340 Cr. P.C., except for contempt of the Court of Justice.
- If the parties belong to the Socially Disadvantaged Groups ('EWS') or live below the Poverty Line ('BPL') or are seasonal employees, the obligation to file an affidavit will be waived.
- The Family Court/ District Court / Magistrate Court involved must attempt to decide on the I.A. For Temporary Maintenance, by reasoned order, no later than four to six months after the Affidavits of Disclosure have been filed before the court.
- A licensed marriage advisor must be made accessible to the family court.
The Court has guided the allocation of permanent allowances:
- Parties can provide oral and documentary proof in respect of revenue, expenses, the standard of living, etc. to the Court concerned for the establishment of a permanent allowance payable to the spouse.
- In modern society, where many partnerships do not survive for a suitable amount of time, it may be inequitable for the claimant to pay a lifelong pension for the remainder of his life. The length of the marriage will be a relevant consideration to be taken into account in the calculation of the permanent allowance to be paid.
- The provision for the granting of appropriate costs for the marriage of children shall be made at the time of the determination of a permanent pension where the custody of the child is with the wife. The costs will be calculated by taking into account the financial status of the husband and the traditions of the household.
- If there are any trust funds/investments generated for the welfare of children from any spouse/grandparents, this will also be taken into account when agreeing on ultimate child care.
The court also noted that, while there is no bar to request maintenance under the D.V. It would be inequitable, under the Act and Section 125 of the Cr. P.C., or under the H.M.A., to order the husband to pay maintenance under any of the proceedings, irrespective of the relief provided in the preceding procedure. It is mentioned as follows: 'When maintenance is given to a woman in a proceeding that has already been initiated, she is legally obligated to report the same in a subsequent maintenance proceeding that may be lodged under another statute. When determining the amount of maintenance in the following proceedings, the civil court/family court shall take into account the maintenance given in any prior proceedings and assess the maintenance payable to the complainant ..."
"To resolve the overlapping authority and to prevent contradictory directions being handed down in separate cases, we instruct that, in the ensuing maintenance proceeding, the claimant report the prior maintenance proceeding and the orders issued therein so that the Court can take into account the maintenance already given in the preceding proceedings and grant an amendment. If any change or modification is requested by the order passed in the preceding proceeding, the party must be obliged to transfer the court concerned in the preceding proceeding."
Document:
