Kusum Sharma Versus Mahinder Kumar Sharma
Kusum Sharma Versus Mahinder Kumar Sharma
Kusum Sharma Versus Mahinder Kumar Sharma
SATYA DEV
+
%
FAO 369/1996
KUSUM SHARMA
Through :
..... Appellant
Mr. Rajiv Saxena, Advocate
Mr. Sunil Mittal, Amicus curiae
versus
MAHINDER KUMAR SHARMA
Through : None.
..... Respondent
WITH
FAO 297/1997, MAT.APP. 47/2005, MAT.APP. 64/2007,
MAT.APP. 33/2010, MAT.APP. 35/2010, MAT.APP.
124/2010 MAT.APP. 36/2012 & MAT.APP. 8/2013
Present:
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It is
Court observed that parties rarely disclose their true income and
therefore, the Court have to resort to the status and life style of the
parties for fixing the maintenance. This Court held as under:
3. Cases where the parties disclose their actual
income are extremely rare. Experience, therefore,
dictates that where a decision has to be taken
pertaining to the claim for maintenance, and the
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7.
7.1
7.3
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his true income without good reasons, the Courts normally draw a
presumption against him and accept the allegations of the wife as
to the income of the husband. However, this Court has some
reservation about accepting the preposition that whatever estranged
wife states with or without rational basis should be accepted as
gospel truth. One cannot be oblivious to the human feeling of an
estranged wife to exaggerate income of her estranged husband to
extract as much as possible due to every increasing lack of sense of
security. Every Court is supposed to be circumspect to ensure that
unconsciously by any such order the Court is not forcing one or the
other party to the extremes. This Court is of the view that the
parties should be directed to file a detailed affidavit of their assets,
income and expenditure and the supporting documents in order to
determine their true income.
7.5
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word truth and casts a duty on the Family Court to lay down
procedure to determine the truth of the facts alleged by one party
and denied by the other. Section 10 of the Family Courts Act is
reproduced hereunder:
Section 10 - Procedure generally
(1) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Civil Procedure,
1908 (5 of 1908) and of any other law for the time being
in force shall apply to the suits and proceedings other
than proceedings under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974)], before a Family
Court and for the purposes of the said provisions of the
Code, a Family Court shall be deemed to be a Civil
Court and shall have all the powers of such Court.
(2) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Criminal Procedure,
1973, (2 of 1974), or the rules made thereunder, shall
apply to the proceedings under Chapter IX of that Code
before a Family Court.
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9.1
SCC 38, the Supreme Court described justice and truth to mean the
same. The observations of the Supreme Court are as under:
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(1) SCC 271, the Supreme Court observed that the presiding officer
of a Court should not simply sit as a mere umpire at a contest
between two parties and declare at the end of the combat who has
won and who has lost and that there is a legal duty of his own,
independent of the parties, to take an active role in the proceedings
in finding the truth and administering justice.
9.5
421, the Supreme Court observed that to enable the Courts to ward
off unjustified interference in their working, those who indulge in
immoral acts like perjury, pre-variation and motivated falsehoods
have to be appropriately dealt with, without which it would not be
possible for any Court to administer justice in the true sense and to
the satisfaction of those who approach it in the hope that truth
would ultimately prevail. People would have faith in Courts
when they would find that truth alone triumphs in Courts.
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9.6
SCC 374, the Supreme Court observed that right from the inception
of the judicial system it has been accepted that discovery,
vindication and establishment of truth are the main purposes
underlying existence of Courts of justice.
9.7
Pradesh, (2008) 3 SCC 602, the Supreme Court held that the trial
should be a search for the truth and not about over technicalities.
The Supreme Courts observation are as under:
5. 31. In 1846, in a judgment which Lord Chancellor
Selborne would later describe as one of the ablest
judgments of one of the ablest judges who ever sat in this
Court,
Vice-Chancellor
Knight
Bruce
said
[Pearse v. Pearse, (1846) 1 De G&Sm. 12 : 16 LJ Ch 153
: 63 ER 950 : 18 Digest (Repl.) 91, 748] : (De G&Sm. pp.
28-29):
31. The discovery and vindication and establishment
of truth are main purposes certainly of the existence of
courts of justice; still, for the obtaining of these
objects, which, however valuable and important,
cannot be usefully pursued without moderation, cannot
be either usefully or creditably pursued unfairly or
gained by unfair means, not every channel is or ought
to be open to them. The practical inefficacy of torture
is not, I suppose, the most weighty objection to that
mode of examination,... Truth, like all other good
things, may be loved unwiselymay be pursued too
keenlymay cost too much.
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35. Courts have always been considered to have an
overriding duty to maintain public confidence in the
administration of justiceoften referred to as the duty
to vindicate and uphold the majesty of the law.
(Emphasis Supplied)
FAO 369/1996 & other connected matters
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9.8
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10.1
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(Emphasis supplied)
10.2
Imposition of costs
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12.1
under:
Section 165. Judges power to put questions or order
production.The Judge may, in order to discover or obtain proper
proof of relevant facts, ask any question he pleases, in
any form, at any time, of any witness, or of the parties,
about any fact relevant or irrelevant; and may order the
production of any document or thing; and neither the
parties nor their agents shall be entitled to make any
objection to any such question or order, nor, without the
FAO 369/1996 & other connected matters
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reason, and then, do justice upon the basis of the truth and the
Judge is not only justified but required to elicit a fact, wherever the
interest of truth and justice would suffer, if he did not.
12.4
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12.5
(1981) 3 SCC 191 observed that under Section 165, the Court has
ample power and discretion to control the trial effectively. While
conducting trial, the Court is not required to sit as a silent
spectator or umpire but to take active part within the
boundaries of law by putting questions to witnesses in order to
elicit the truth and to protect the weak and the innocent. It is the
duty of a Judge to discover the truth and for that purpose he may
"ask any question, in any form, at any time, of any witness, or of
the parties, about any fact, relevant or irrelevant".
12.6
It is an extraordinary
power conferred upon the Court to elicit the truth and to act in
the interest of justice. The purpose being to secure justice by full
discovery of truth and an accurate knowledge of facts, the Court
can put questions to the parties, except those which fall within
exceptions contained in the said provision itself.
12.7
Supreme Court held that Section 165 of the Indian Evidence Act
confers vast and unrestricted powers on the Court to elicit
truth. Reticence may be good in many circumstances, but a Judge
remaining mute during trial is not an ideal situation. A taciturn
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(i)
The parties should disclose their assets, income and
expenditure at the time of the marriage or one year before the date
of separation whichever is later; secondly at the time of separation
and thirdly, at the time of deposing the affidavit.
(ii)
The parties are well aware of the assets, income and
expenditure of the other spouse and therefore, the parties should
give the particulars of the assets, income and expenditure of the
other spouse in their affidavit itself.
(iii)
The list of documents to be filed along with affidavit be
specified to enable the litigants to file the relevant documents
available with them.
(iv)
The appearance of the parties on each and every date of
hearing in matrimonial cases be made mandatory.
14.2
(ii)
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(iii)
Appointment letter
(iv)
(v)
14.3
as amicus curiae vide order dated 23rd December, 2011 has given
the list of documents to be submitted along with the affidavit of
assets and income.
14.4
(ii)
(iii)
(iv)
(v)
(vi)
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suggestions:
(i)
(ii)
14.6
The Family Courts and the Courts dealing with cases under
Section 125 Cr.P.C. have also sent their suggestions which are as
under:
(i)
(ii)
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(iii)
(iv)
(b)
(c)
The income tax returns and salary slips for the last
three years, PAN card, passport, aadhar, voter ID card
and insurance policy of the vehicle be also called for
from the parties.
(d)
(v)
(vi)
(vii) DLSA should assign one legal aid counsel to each Family
Court to assist litigants.
(viii) Rs.11,000/- should be directed to be paid towards interim
litigation expenses.
(ix)
(x)
(xi)
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15.1
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expenditure.
Puneet Kaur v. Inderjit Singh Sawhney, 2011 (183) DLT 403
16.
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17.1
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the parties.
17.2
The parties will have to disclose their true income, assets and
expenditure.
(ii)
(iii)
(iv)
17.3
18.1
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S.No
Name of
the
Country
Applicable Rules
Affidavit for
financial
disclosure
Hyper Link
1.
U.S.A.
Circuit Court of
Nineteenth Judicial
Circuit Lake County,
Illinois
PART 11.00
Family Law
Financial
Affidavit 11.02
2.
U.S.A
Franklin County
Court of Common
Pleas Division of
Domestic Relations
and Juvenile Branch
Rules of
Domestic
Relations
Division
Affidavit of
Income and
Expenses
1. http://19thcircuitcourt.state.il.us/crt_for
ms/Documents/family/AffidavitFinancial11.02_040306.pdf
2. http://19thcircuitcourt.state.il.us/resour
ces/Pages/rules11.aspx
1.http://www.fccourts.org/DRJ/PDF/forms/
income_affidavit.pdf
2. http://www.franklincountyohio.gov/clerk
/drfaq.cfm
3.
U.S.A
Financial
Disclosure
Affidavit
1. https://www.nycourts.gov/forms/familyc
ourt/pdfs/4-17.pdf
2. http://www.nycourts.gov/rules/trialcourts
/205.shtml
4.
U.S.A
Superior Court of
Arizona in Maricopa
County
Arizona Rules of
Family Law
Procedure
Affidavit of
Financial
Information
5.
U.S.A
State of Winsconsin,
Circuit Court
Basic guide to
Divorce/ Legal
Seperation
Financial
Disclosure
Statement
6.
U.S.A
Montgomery County
Domestic Relations
Court
Rules of the
Domestic
Relations
Division Affidavit
Affidavit of
Financial
Disclosure
7.
U.K.
Royal Court of
Justice
Rules of
Application for
financial remedy
Form E Financial
Statement
8.
Canada
Alberta Rules of
Court
9.
Republic
of South
Africa
Schedule A to
Form FL 17 ,
Statement of
Income , Assets
and Liabilities
Application for
Maintenance
Order.
1. https://www.superiorcourt.maricopa.gov/
sscDocs/pdf/drosc13f.pdf
2. https://govt.westlaw.com/azrules/Browse
/Home/Arizona/ArizonaCourtRules/Ariz
onaStatutesCourtRules?guid=N258B8E4
0715611DAA16E8D4AC7636430&origi
nationContext=documenttoc&transitionT
ype=Default&contextData=(sc.Default)
1. http://www.wicourts.gov/forms/fa4139.pdf
2. https://www.wicourts.gov/formdisplay/F
A4100_instructions.pdf?formNumber=F
A4100&formType=Instructions&formatI
d=2&language=en
1. http://www.mcohio.org/government/dom
estic_relations_court/docs/affidavit_of_fi
nancial_disclosure.pdf
2. www.mcohio.org/government/domestic_
relations_court/docs/LOCAL_RULES.p
df
1. http://www.jordanpublishing.co.uk/syst
em/redactor_assets/documents/709/For
m_E.pdf
2. https://www.justice.gov.uk/courts/proc
edure-rules/family/parts/part_09
1. http://www.albertacourts.ab.ca/LinkCli
ck.aspx?fileticket=nE63Bp0FClQ%3D
&tabid=310
10. Australia
Maintenance Act
99 of 1998
Family Court of
Australia
Financial
Statement
1. http://www.justice.gov.za/forms/mainten
ance/MNT_Form%20A.pdf
2. www.justice.gov.za/legislation/acts/1998
-099.pdf
1. http://www.familylawcourts.gov.au/wps/
wcm/resources/file/ebfc574063514ae/Fin
ancialStatement_form_0313V1.pdf
2. http://www.familylawcourts.gov.au/wps/
wcm/connect/FLC/Home/Forms/Family
+Law+Courts+forms/Financial_Stateme
nt_form
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18.2
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Distribution of Affidavit.
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by the Courts below, learned amici curiae and the counsels for the
parties, the order dated 18th September, 2014 is modified and the
modified directions are as under: 19.1
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delay and expedite the trial in terms of Section 21-B of the Hindu
Marriage Act.
19.3
10(3) of the Family Courts Act, 1984 read with Section 165 of the
Indian Evidence Act relating to the duty of the Court to ascertain
the truth and the duty of the parties to disclose their income under
Section 106 of the Indian Evidence Act, this Court has formulated
the format of the affidavit of assets, income and expenditure
attached to this order as Annexure A which shall form part of this
judgment.
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The Court may also call upon the parties of to file such an
Paras 33.3 and 33.5 of the order dated 18th September, 2014
are modified to the extent that the parties shall file the affidavit of
their assets, income and expenditure in format provided in
Annexure A, instead of the affidavit prescribed in Puneet Kaur v.
Inderjeet Sawhney (supra).
19.9
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23.
learned amici curiae Ms. Prem Lata Bansal, Mr. Sunil Mittal and
Ms. Anu Narula.
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Registrar General of this Court who shall send the same to all
Family Courts and other Courts dealing with matrimonial cases.
The format of the affidavit of assets, income and expenditure
(Annexure A) be loaded in the website of the District
Courts/Family Courts to enable the lawyers/litigants to download
the same.
26.
this judgment along with the Annexure A be also sent to the Delhi
Judicial Academy to sensitize the judicial officers about the
guidelines laid down by this Court.
27.
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dasti to counsel for the parties as well as learned amici curiae under
the signatures of the Court Master.
J.R. MIDHA
(JUDGE)
JANUARY 14, 2015
dk/rsk
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ANNEXURE A
(FORMAT OF AFFIDAVIT OF ASSETS, INCOME AND EXPENDITURE TO BE
FILED BY THE PARTIES IN ALL MAINTENANCE CASES)
AFFIDAVIT
I _______________________, son of / wife of ___________________, aged about ____
years, resident of ___________________________, do hereby solemnly affirm and declare
as under:
PART - I
PERSONAL INFORMATION RELATING TO THE DEPONENT
Sl
No.
1.
Name
2.
Age
3.
Date of marriage
4.
Date of separation
5.
Educational qualifications
6.
Professional qualifications
7.
Occupation
8.
9.
10.
11.
12.
13.
14.
15.
16.
Description
Particulars
2
17.
18.
19.
20.
21.
22.
23.
E-mail address
24.
25.
26.
PART - II
RELEVANT INFORMATION RELATING TO THE SPOUSE
1.
2.
3.
4.
5.
PART - III
RELEVANT INFORMATION RELATING TO THE CHILDREN
1.
2.
3.
4.
5.
6.
7.
School fees
(ii)
(iii)
Books/Stationery
(iv)
Private Tuitions
(v)
Sports
(vi)
Outings/summer camps/vacations
(vii)
Entertainment
(viii)
Others
Amount
(in Rs.)
4
PART-IV
STATEMENT OF INCOME
S.No
1.
Description
In case of salaried persons:
(i)
Designation
Nature of business/profession
Particulars
5
(iii) Number of employees
(iv) Annual turnover/gross receipts
(v) Gross Profit
(vi) Income Tax
(vii) Net Income
(viii) Details and value of benefits in kind, perks or
other remuneration received from the business
e.g. provision of car, payment of
accommodation etc
(ix) Amount of regular monthly withdrawal or
drawings from the business
(x) Current value of your business interest(s)
(xi) Current value of your business assets
(xii) List of directorships held, sitting fees,
commission or any other remuneration
3.
Agricultural Income
(ii) Rent
(iii) Interest on bank deposits and FDRs
(iv) Interest on investments including deposits,
NSC, IVP, KVP, Post Office schemes, PPF,
loans etc.
(v) Dividends
(vi) Income from machinery, plant or furniture let
on hire.
(vii) Gifts
(viii) Profit on sale of movable/ immovable assets
4.
6
PART V
STATEMENT OF EXPENDITURE
S.
No.
1.
Description
(in Rs.)
Housing
Monthly rent
Mortgage payment(s)
Repairs & Maintenance
Property tax
2.
Household
expenditure
Groceries/Food/Personal
care/clothing
Water
Electricity
Gas
Telephone
TV
Cable/Set-top
Box
charges & Internet services
Maintenance, replacement
and repair of household
items,
appliances
and
kitchenware items.
Telephone
Domestic full time/part time
servant(s)
Others (specify)
3.
Amount
Transport
(i)
Car/Scooter
(a)
Driver(s)
(b)
Fuel
(c)
Repair/Maintenance
(d)
Insurance
(e)
Loan repayment
7
(ii) Public Transport
4.
Medical expenditure
(a)
Bus
(b)
Taxi
(c)
Metro
(d)
Auto
Doctor
Medication
Hospital
Other medical expenditure
Others (specify)
5.
Insurance
Life
Annuity
Householders
6.
Entertainment
and recreation
Club
Health Club
Gym
7.
8.
Gifts
9.
Pocket money/allowance
Repayment of Loans
(a)
House loan
(b)
Car loan
(c)
Personal loan
(d)
Business loan
8
(e)
12. Miscellaneous
TOTAL EXPENDITURE
(Give monthly expenditure)
PART - VI
STATEMENT OF ASSETS
Assets
S.
No.
Particulars
Estimated Market
Value
Current Balance
1. Real Estate
Including land, built up properties, lease
hold properties, agricultural land and
investment in real estate such as booking of
plots, flats and other immovable properties
in your name or joint names.
List any interest in properties, including
lease hold interest and mortgages, whether
or not you are registered as owner.
Provide legal descriptions and indicate
estimated market value of your interest
without deducting encumbrances or costs
of disposition.) (Record encumbrances
under debts.)
2. Financial Assets:
(i) Details of all bank accounts including
Current and Savings Accounts in your
name, or joint name and balance in the
9
said account
(ii) Cash in hand
Particulars
3. Investments
Current Value
Maturity amount
Particulars
Current value
Particulars
Current value
(ii)
Livestock
(iii)
Mobile phone(s)
(iv)
Computer/Laptop
(v)
Other electronic
including I-pad etc.
(vi)
gadgets
10
(vii)
(viii)
Quantity of gold,
diamond jewellery
(ix)
silver
and
Sale consideration
received
9. Others
Estimated current
value
PART - VII
JOINT PROPERTIES OF THE PARTIES
S.
No.
Description
1.
2.
Particulars
11
PART - VIII
STATEMENT OF LIABILITIES
S.
No.
1.
Description
Particulars of
Debts
Current Value
Secured debt(s)
List all mortgages, loans, and any other
debts secured against an asset
Unsecured Debt(s)
2.
3.
PART - IX
GENERAL INFORMATION RELATING TO THE STATUS,
STANDARD OF LIVING AND LIFESTYLE
S.
No.
Description
1.
Residential address
2.
3.
4.
5.
6.
7.
Particulars
12
8.
9.
ordinarily
incurred
on
- High
- Upper Middle
- Middle
- Lower Middle
- Low
- Below poverty
line
13
PART - X
DOCUMENTS RELATING TO ASSETS, INCOME AND EXPENDITURE OF
THE DEPONENT
PART A
DOCUMENTS RELATING TO PERSONAL INFORMATION
S. No.
Description
1.
Aadhar Card
2.
PAN Card
3.
Passport
PART B
DOCUMENTS RELATING TO INCOME, ASSETS AND LIABILITIES
S. No.
Description
Please Tick
Attached
4.
5.
6.
7.
Appointment Letter
(ii)
Salary slip
(iii)
(iv)
Not
Applicable
To follow
14
(v)
8.
(ii)
(iii)
(iv)
(v)
Lease
Deed(s)/Rent
Agreement(s)
/Licence
Agreement(s) in respect of the
rental income
(ii)
(iii) Dividend
Certificates
in
15
respect of dividend income
(iv) Sale
Deed(s)/transfer
documents in respect of the
profit
on
sale
of
property/properties
10. Other relevant documents relating to
Income/Assets
11. Other relevant documents relating to
liabilities
PART C
DOCUMENTS RELATING TO EXPENDITURE
12.
(i)
(ii)
Documents
relating
to
expenditure on conveyance
Credit
Fliers
Card
Card
(xi) PPF,
EPF
and
other
superannuation fund receipts
(xii) Receipts of premium
insurance policies
of
in
(xiv) Documents
to
relating
16
payment of interest on bank
and other loans
(xv) Documents relating to the
payment of taxes, including
Income Tax, Wealth Tax and
Property Tax
(xvi) Other
relevant documents
relating to Expenditure
Declaration:
1. I declare that I have made full and accurate voluntary disclosure of my income,
expenditure, assets and liabilities from all sources. I further declare that I have no
assets, income, expenditure and liabilities other than set out in this affidavit.
2. I undertake to inform this Court immediately upon any material change in my
employment, assets, income, expenses or any other information included in this
affidavit.
3. I understand that any false statement in this affidavit may constitute an offence
under Section 199 read with Sections 191 and 193 of the Indian Penal Code
punishable with imprisonment upto seven years and fine, and Section 209 of Indian
Penal Code punishable with imprisonment upto two years and fine. I have read
and understood Sections 191, 193 199 and 209 of the Indian Penal Code.
DEPONENT
Verification:
Verified at ____________on this ____ day of ___________ that the contents of the
above affidavit relating to my assets, income and expenditure are true to my
knowledge, no part of it is false and nothing material has been concealed
therefrom, whereas the contents of the above affidavit relating to the assets,
income and expenditure of my spouse are based on information believed to be true.
I further verify that the copies of the documents filed along with the affidavit are
the copies of the originals.
DEPONENT