Mrinmoy Kanti Choudhury v. Smti. Soma Rani Biswas

ORDER Date : 15.03.2024

Heard Mr. H. Betala, learned counsel for the petitioner.

¶2The petitioner has preferred an application u/s 482 Cr.P.C. Page No.# 2/5 against the impugned order dated 21/06/2023 passed by the learned Principle Judge, Family Court No. 3, Kamrup (M) Guwahati in F.C. (Crl.) Case No. 689/2022 directing the petitioner to pay an amount of Rs. 8000/- per month as an interim maintenance to the respondent/wife till disposal of the case on merit.

¶3The respondent wife had filed an application u/s 125 Cr.P.C. before the court of learned Principal Judge, Family Court, Guwahati, Kamrup (M), claiming maintenance from her husband i.e., the present petitioner. On receipt of the notice, the petitioner appeared before the Family court. According to learned counsel for the petitioner, on the first day of the appearance of the petitioner i.e. on 21/06/2023 the learned trial court had passed an impugned order of interim maintenance amounting to Rs. 8000/- per month without affording an opportunity to the petitioner to file a written objection.

¶4It is also the submission of learned counsel for the petitioner that the learned trial court has failed to appreciate the judgment of the Hon'ble Supreme Court in Rajnesh vs. Neha reported in (2021) 2 SCC 324, makes it mandatory to file an affidavit for disclosure of assets and liabilities of the parties in order to arrive at a calculation for determining the quantum of maintenance.

¶5Learned counsel for the petitioner further submits that as the order dated 21/06/2023 passed by the Trial court is a clear violation of the guidelines referred in the case of Rajnesh (Supra), the order is liable to be set aside with a direction to decide the matter afresh.

¶6Learned counsel for the petitioner also referred another case Page No.# 3/5 law – Aditi @ mithi vs. Jitesh Sharma reported in (2023) SCC online SC 1451, wherein it was reflected that the guidelines laid down in the case of Rajnesh (Supra) has to be followed mandatorily by all the courts, while deciding the case of maintenance.

¶7I have considered the submissions of the learned counsel for the petitioner. I have also perused the order of the trial court dated 21/06/2023.

¶8As per the direction of the Hon'ble Supreme Court in the case of Rajnesh vs. Neha (Supra) parties were directed to give their declaration regarding their income, assets and liabilities. From the order of the Trial court dated 21/06/2023, this exercise was not undertaken by the learned Trial Court inspite of the binding direction issued by the Hon'ble Supreme Court.

¶9The paragraphs of the judgment of Rajnesh (supra) are reproduced as follows - "….. At present, 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 said that both parties submit scanty material, do not disclose the correct details and suppress vital information, which makes it difficult for the Family court to make an objective assessment for the 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 Page No.# 4/5 income. The party claiming maintenance either as a spouse or as a partner in a civil union, leave in relationship, common love marriage, should be required to file a concise application for interim maintenance with limited pleadings along with an affidavit of disclosure of assets and liabilities before the concerned court, as a mandatory requirement. On the basis of the pleadings filed by both the 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 at the interim stage."

¶10In view of the aforesaid legal proposition, it reveals that the maintenance is dependent upon factual situations. The court should mould the claim for maintenance brought before it. It is to be noted down that the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration to arrive at the appropriate quantum of maintenance to be paid.

¶11In the case in hand, after going through the order of the trial court dated 21/06/2023, it can be said that the trial court on the very first day on appearance of the petitioner, passed an order of interim maintenance without affording any opportunity to the petitioner to disclose his assets and liabilities which is a gross violation of the guidelines laid down by the Hon'ble Supreme Court in Rajnesh (Supra). Page No.# 5/5

¶12Hence, the order dated 21/06/2023 is set aside with a direction to the Trial court to give opportunity to both the parties to submit their respective affidavits disclosing their assets and liabilities and thereafter, to hear the matter afresh and to pass necessary order in accordance with law.

¶13If any payment is made earlier by the petitioner in view of the order dated 21/06/2023, the same shall be adjusted accordingly.

¶14In view of the above observation, the criminal petition is disposed of at the motion stage.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010054042024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./289/2024 MRINMOY KANTI CHOUDHURY S/O LATE JAGADISH NATH CHOUDHURY, P/R/O BBC COLONY, PANDU, P.O.-PANDU, P.S.-JALUKBARI, DIST- KAMRUP (M), GUWAHATI, PIN-781012, ASSAM, P/R/A STATION SUPERINTENDENT, JORHAT TOWN RAILWAY STATION, P.O.-JORHAT, P.S.-JORHAT, DIST- JORHAT, PIN-7815001, ASSAM VERSUS SMTI. SOMA RANI BISWAS D/O LATE CHANDAN KUMAR BISWAS, W/O SRI MRINMOY KANTI CHOUDHURY, R/O MAY FAIR KAMAKHYA APARTMENT, ADABARI TINIALI, FLAT NO. 5C, SIKHA BLOCK, P.O.-PANDU, P.S.-JALUKBARI, GUWAHATI- 781012, DIST- KAMRUP (M), ASSAM Advocate for the Petitioner : MR H BETALA Advocate for the Respondent : BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI