The Supreme Court in the case of Rajnesh v Neha (2011) made it compulsory to file an affidavit of assets and liabilities in the cases of Maintenance.
The proviso to Section 24 of the HMA (inserted vide Act 49 of 2001 w.e.f. 24.09.2001), and the third proviso to Section 125 Code of Criminal Procedure (inserted vide Act 50 of 2001 w.e.f. 24.09.2001) provide that the proceedings for interim maintenance, shall as far as possible, be disposed of within 60 days’ from the date of service of notice on the contesting spouse. Despite the statutory provisions granting a time-bound period for disposal of proceedings for interim maintenance, the applications remain pending for several years in most of the cases.
The delays are caused by various factors, such as tremendous docket pressure on the Family Courts, repetitive adjournments sought by parties, enormous time taken for completion of pleadings at the interim stage itself, etc. Pendency of applications for maintenance at the interim stage for several years defeats the very object of the legislation.
Generally, the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of interim maintenance. While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.
Due to these difficulties, The Supreme court in the case of Rajnesh v. Neha (2011), found it necessary to lay down a procedure to streamline the proceedings, since a dependant wife, who has no other source of income, has to take recourse to borrowings from her parents/relatives during the interregnum to sustain herself and the minor children, till she begins receiving interim maintenance.
The Court said that, in the first instance, the Family Court in compliance with the mandate of Section 9 of the Family Courts Act 1984, must make an endeavour for settlement of the disputes. For this, Section 6 provides that the State Government shall, in consultation with the High Court, make provision for counsellors to assist a Family Court in the discharge of its functions. Given the large and growing percentage of matrimonial litigation, it has become necessary that the provisions of Section 5 and 6 of the Family Courts Act are given effect to, by providing for the appointment of marriage counsellors in every Family Court, which would help in the process of settlement. If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.
The court further said that,
The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before the concerned court, as a mandatory requirement.
(v) On the basis of the pleadings filed by both parties and the Affidavits of Disclosure, the Court would be in a position to make an objective assessment of the approximate amount to be awarded towards maintenance at the interim stage.
Affidavits of Assets and Liabilities- Kusum Sharma Cases
The Delhi High Court in a series of judgments beginning with Puneet Kaur v. Inderjit Singh Sawhney ILR (2012) I Delhi 73 and followed in Kusum Sharma v. Mahinder Kumar Sharma: (2014) 214 DLT 493 (“Kusum Sharma I”) directed that applications for maintenance under the HMA, HAMA, D.V. Act, and the Code of Criminal Procedure be accompanied with an Affidavit of assets, income and expenditure as prescribed.
In Kusum Sharma II, (2015) 217 DLT 706 the Court framed a format of Affidavit of assets, income and expenditure to be filed by both parties at the threshold of a matrimonial litigation. This procedure was extended to maintenance proceedings under the Special Marriage Act and the Indian Divorce Act, 1869.
In Kusum Sharma III 2017, the Delhi High Court modified the format of the Affidavit, and extended it to maintenance proceedings under the Guardians & Wards Act, 1890 and the Hindu Minority & Guardianship Act, 1956.
In Kusum Sharma IV (2018) 246 DLT 1 the Court took notice that the filing of Affidavits alongwith pleadings gave an unfair advantage to the party who files the affidavit subsequently. In this judgment, it was clarified that the Affidavit must be filed simultaneously by both parties.
In Kusum Sharma V the Court consolidated the format of the Affidavits in the previous judgments, and directed that the same be filed in maintenance proceedings.
Given the vastly divergent demographic profile of our country, which comprises of metropolitan cities, urban areas, rural areas, tribal areas, etc., it was considered appropriate to elicit responses from the various State Legal Services Authorities (“SLSAs”). Supreme Court vide its Order dated 17.12.2019 requested the National Legal Services Authority (“NALSA”) to submit a report of the suggestions received from the SLSAs for framing guidelines on the Affidavit of Disclosure of the Assets and Liabilities to be filed by the parties.
The NALSA submitted a comprehensive report dated 17.02.2020 containing suggestions from all the State Legal Service Authorities throughout the country.
On receiving the report of SLSAs the court found it appropriate in the present case that the Affidavit to be filed by parties residing in urban areas, would require to be entirely different from the one applicable to rural areas, or tribal areas.
For this purpose, a comprehensive Affidavit of Disclosure of Assets and Liabilities was prepared by the court. (Please find at the end of the article)
Guideline by the Supreme Court
Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, Supreme Court considered it necessary to frame guidelines in exercise of our powers Under Article 136 read with Article 142 of the Constitution of India:
(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 concerned Family Court/District Court/Magistrate’s Court, as the case may be, throughout the country;
(b) The Applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;
(c) The Respondent must submit the reply alongwith 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 wilful and contumacious in delaying the proceedings.
On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the Applicant and the pleadings on record;
(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.
(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.
(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 XI of the Code of Civil Procedure; On filing of the Affidavit, the Court may invoke the provisions of Order X of the 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.
(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.
(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.
(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.
(j) The concerned Family Court/District Court/Magistrate’s Court must make an endeavour to decide the I.A. 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.
(k) A professional Marriage Counsellor must be made available in every Family Court.
Permanent alimony
(i) Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.
(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the Applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.
(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family.
(iv) If there are any trust funds/investments created by any spouse/grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.
Reference
Rajnesh v Neha (2011)
Format of Affidavits in Maintenance Cases as Directed by Hon’ble Supreme Court