Changes affected by Kusum Sharma Judgment Dated 06 August 2020

MAINTENANCE LAW PROCEDURAL CHANGES POST 6TH AUGUST, 2020 IN DELHI IN KUSUM SHARMA JUDGMENT

CONCEPT:

The maintenance law in India lays down a man’s duty to provide maintenance to his parents, wife, and children when they cannot maintain themselves. Maintenance in law is defined as the amount paid to the dependent wife, child, or parents to sustain themselves. The amount can be settled in one lump sum payment or monthly instalments. Section 125 of the Code of Criminal Procedure 1973 lays down the concept of maintenance in India, along with the different personal laws that extend the right of maintenance to the wife and her parents and children. Personal laws relating to maintenance in India apply to people of those religions.

In contrast, the maintenance claim under Section 125 of the Code of Criminal Procedure 1973 can be filed by anyone regardless of religion or caste. The law of maintenance in India lays down the procedure for claiming maintenance for a child and a wife. In a marital dispute, the burden lies on the Court to fix the maintenance, and the Court ascertains the financial capacity or the status of the parties for fixing the maintenance. In many developed countries, the law prescribes a comprehensive format of assets, income, and expenditure to be filed by both parties at the very threshold of matrimonial litigation. However, there is no provision of law in India that directs the litigating parties to disclose their assets, income, and expenditures in one particular format. Neither is there any specific step that directs the parties as to when one is supposed to file the income affidavit so that the competent Court can ascertain the maintenance or the interim maintenance.

Regarding this deliberation, The Hon’ble High Court of Delhi has formulated the draft of the assets, income, and expenditure to be filed by the parties at the very threshold in all matrimonial cases; by doing so, the two pertinent issues can be taken care of, firstly the standard format helps the parties to get a universal draft, as the maintenance law allows the parties to file for maintenance anywhere in India. The timeframe of filing the income affidavit, for instance,’ at the very threshold in all matrimonial cases,” rules out any chance of manipulations or addendums by the parties as the trial progresses. Though it is vital to mention that it is not the litigating who will be reaping all the fruits of the endeavour to formulate a standard draft of an income affidavit, The Court was of the view that a comprehensive affidavit of this affidavit would also enable the Courts to determine the maintenance based on the actual income of the parties and would also save judicial time. However, the task of formulation of a standard income affidavit draft was a tedious one, the Court for this venture relied on many factors and, on the 14th of January 2015, passed the direction of filing the affidavit of assets, income and expenditure at the very threshold of marital dispute. This Court relied on the “international best practice” and considered affidavits of different countries, namely, USA, UK, Ireland, Singapore, Canada, Australia and South Africa. The modification continued from the 14th of January 2015 to the 6th of December 2017, incorporating suggestions by the family court and even the ‘amicus curiae’ in the name of Adv Sunil Mittal and Anu Narula. In the “Bhandari Engineering II”, the Court modified and improved the format to make it more comprehensive and further directions have been passed so that the execution cases are decided within one year from the date of their institution. The Court considers it appropriate to incorporate the benevolent features of Bhandari Engineering II in the format of the affidavits of assets, income and expenditure in this case and on meticulous consideration, the Hon’ble Court the finding of the Bandari Engineering II modified “Kusum Sharma I, II& III.

Where will these modified directions apply?

These modified directions/guidelines shall apply to all matrimonial cases, including cases under the Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 Code of Criminal Procedure, 1973; 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.

Why Addendums And Modification Were Required:

The Hon’ble court opined that deliberate attempts by parties to conceal vital information or mislead the court wouldn’t only invite penal action and leave it open to the court to consider drawing an “adverse inference” against the party. Still, this much was only possible after the discovery of the fowl played. Therefore, it was clear that the direction for filing an affidavit could be issued even in pending cases if parties were not forthcoming about the information. The courts even consider the appointment of a local commissioner to visit the place of residence or business of a party to assess the standard of living & social status. The requirement could be dispensed with if the parties belonged to the “lowest strata of society”; its furnishing could cause unnecessary inconvenience or not serve any fruitful purpose.

The modified direction was with pertinent points:

1. Maintenance is not merely a legal right. It is part and parcel of fundamental human rights. It is a problem for weaker sections because their survival depends on maintenance. The object of providing maintenance is two-fold: firstly, to prevent vagrancy resulting from strained relations between the husband and wife, and secondly, to ensure that the needy litigating spouse is not handicapped in defending or prosecuting the case due to want of money. However, the courts must also see that some litigants come to court with unclean hands and blatant lies. An income Affidavit would curb those instincts, and there is a possibility of punishing the lairs in a court of law.
2. The speedy disposal of maintenance applications as elucidated by the Hon’ble Court of India in ‘Bhuwan Mohan Singh v. Meena, AIR 2014 SC 2875’.

1. A lucid and more human process will be followed while adjudicating the maintenance, as the Hon’ble Supreme Court of India noticed in Pratibha Rani v. Suraj Kumar (1985) 2 SCC 370.
2. This Hon’ble Court, while passing the direction of modification, also took notice of the relevant portion of the Hindu Marriage Act, 1955 and entailed the importance of sections 24,25,26 & 27.
3. The court also elucidated the concept of “BURDEN OF PROOF” that of section 106 of the Indian Evidence Act and how section 10 of the Family Courts Act, 1984 enabled them for such necessary finding in the affidavit furnished by the parties to grant of maintenance. This observation included section 165 of the Indian Evidence Act, allowing the judge to put questions and order productions to ascertain any possible claim extended by the parties during the maintenance proceedings.

6. Section 165 of the Indian Evidence Act is coupled with section 30 of the Code of Civil Procedure, 1908, which deals with the power to order discovery.

The Modified Affidavit Now Includes:

The modified affidavit of assets, income, and expenditure (“Annexure A2”) comprehensively demonstrates its usefulness in determining maintenance in matrimonial litigation.

1. Salaried person

A salaried person must disclose the particulars of his employment, including salary, DA, commissions, incentives, bonuses, perks, prerequisites, other benefits, income tax, etc.

2. Self-employed person

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

3. 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.

4. Assets

Concerning 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.

5. 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 help and their wages, mode of travel in the 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.

6. Household expenditure, etc.

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

Effects Of Modifications Now Witnesses:

The Court shall direct the party seeking maintenance to produce the passbook of his/her savings bank account in which maintenance can be directly deposited or transferred by the opposite party. It also includes simultaneously taking on record the affidavit of assets, income and expenditure of both parties as it would avoid any undue advantage to the party who files their affidavit later. Suppose a party is carrying on the business as proprietor of a 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. In that case, the Court may consider directing the party to file an additional affidavit concerning 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 II’. In pending maintenance cases, if the parties still need to file the affidavit of their assets, income, and expenditure, the Court shall direct the parties to file their affidavit in the format of Annexure A2. 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. It should also ensure that the filing of the affidavits by the parties is not reduced to a mere ritual or formality.

Suppose the party’s affidavit is outside the prescribed format or accompanied by all the relevant documents. In that case, the Court may take the affidavit on record and grant reasonable time to the party to remove the defects/deficiencies. The Court may direct a party to file an additional affidavit relating to his assets, income and expenditure at the time of marriage and one year before separation and at the time of separation and if the party does not honestly disclose all his assets and income, the opposite party is at liberty to serve the interrogatories under Order 11 CPC and seek production of relevant documents from the party filing the affidavit. The Court, to its satisfaction, may order interrogatories, discovery, inspection, and production of any document and order any fact to be proved by affidavit under Section 30 CPC and, after that, consider whether the oral examination of the party is necessary under Section 165 of the Evidence Act. Suppose the admitted income of the parties is on record, such as in the case of a salaried employee whose salary slip is on record. In that case, the Court may fix ad-interim maintenance based on the admitted documents pending the filing of both parties’ affidavits of the assets, income and expenditure. The Court may record the statement of the parties if considered necessary for fixing the ad-interim maintenance and 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 may fix ad-interim maintenance after hearing the parties. Suppose the statements made in the affidavit of assets, income and expenditure are found to need to be corrected. In that case, the Court shall consider its effect by drawing an adverse inference or imposing additional costs while fixing the maintenance. 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. The interim litigation so provided does not preclude the respondent from seeking further litigation expenses incurred at a later stage, as the Court shall consider the respondent’s claim for litigation expenses and pass an appropriate order on the merits of each case. The affidavit of assets, income and expenditure is to be treated as guidelines to determine the actual financial capacity/status of the parties, as 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 decide on 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 proper cases, such as the cases belonging to the lowest strata of the society or case of a litigant who is 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.

Conclusion:

The nutshell of the order dated 06th August 2020 could be arrayed as the following conclusion. The adjudicating Court has to ascertain the financial capacity/ status of the parties for determining the maintenance and permanent alimony. Therefore, a comprehensive affidavit of both parties’ assets, income and expenditure is necessary. To facilitate that level of adjudication, the courts are vested with various powers under Section 10(3) of the Family Courts Act, 1984, read with Sections 106 and 165 of the Indian Evidence Act and Article 227 of the Constitution of India. The Court has formulated the affidavit of assets, income and expenditure in Kusum Sharma II, modified in Kusum Sharma III and Kusum Sharma IV. Eventually, the format of the affidavit of Kusum Sharma IV is being changed again to make it more comprehensive to be earmarked as Kusum Sharma V.