Gauhati High Court Sets Aside Family Court's Interim Maintenance Order Passed In Absence Of Affidavits Disclosing Parties' Asset & Liabilities

The Gauhati High Court recently set aside a Family Court order directing a husband to pay interim maintenance of Rs. 5,000/- per month to his wife, on the ground that both the parties have not submitted the affidavits disclosing the assets and liabilities in the proceeding before the Family Court.

The single judge bench of Justice Robin Phukan observed:

“Here in this case, having gone through the impugned order dated 31.08.2023, I find that the petitioner and also the respondent have not submitted their affidavits, disclosing the assets and liabilities in the aforementioned proceeding before the learned Court below before deciding the issue of interim maintenance as mandated by the Hon'ble Supreme Court in paragraphs 64 and 65 in the case of Rajnesh (supra) and also in the case of Aditi Alias Mithi (supra).”

The Counsel appearing for the petitioner (husband) submitted that the Family Court decided the quantum of interim maintenance on the basis of a petition filed by the respondent (wife) and though the petitioner had prayed for adjournment of hearing so as to enable him to file objection to the said petition, the Court without granting adjournment, heard the matter and passed the impugned order of interim maintenance dated August 31, 2023.

It was further submitted that as per the judgment of the Supreme Court in Rajnesh v. Neha & Anr. (2021), while passing the impugned order, the Family Court has to obtain the affidavit disclosing the assets and liabilities of both the parties to the proceeding. It was argued that the said requirement has not been followed by the Family Court in the present case.

Reliance was placed upon the judgment of the Supreme Court in Aditi Alias Mithi v. Jitesh Sharma 2023 SCC OnLine SC 1451, in which it was held that the guidelines laid in Rajnesh (supra) has to be followed mandatorily by all the Courts, while deciding the case of maintenance.

The Court noted, “Though the petitioner has sought time to file objection, the same was refused by the learned Court below. That being so, the impugned order cannot withstand the legal scrutiny, having been passed ignoring the law down by Hon'ble Supreme Court.”

Thus, the Court set aside the impugned order and remanded back the matter to the Family Court to afford opportunity to both the parties to file their affidavits disclosing the assets and liabilities and thereafter, to hear the matter afresh and to pass necessary order within one month.

Case Title: Ratan Dutta v. Sunita Dutta

Case No.: Crl.Pet./120/2024

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