Samir Karnik v. Union of India, Through Secretary, Ministry of Corporate Affairs & Anr

judgment in Sunita Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] , held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.

90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] . The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court.

90.5. This Court in Shamima Farooqui v. Shahid Khan [Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 :

(2015) 3 SCC (Civ) 274 : (2015) 2 SCC (Cri) 785] cited the judgment in Chander Parkash [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife."

Enclosure I Affidavit of Assets and Liabilities for Non-Agrarian Deponents

I _________, d/o _______ or s/o______, aged about ______years, resident of______, do hereby solemnly affirm and declare as under:

A. Personal Information

¶1Name:

¶2Age/Sex:

¶3Qualifications (Educational and Professional):

¶4Whether the Applicant is staying in the matrimonial house/parental home/separate residence. Please provide the current residential address of matrimonial home or place of residence and details of ownership of residence, if owned by other family member.

¶5Date of marriage:

¶6Date of separation:

¶7General monthly expenses of the Applicant (rent, household expenses, medical bills, transportation, etc.): B. Details of Legal Proceedings and Maintenance being paid

¶1Particulars of any ongoing or past legal proceedings with respect to maintenance or child support between the Applicant and Non-Applicant.

¶2Whether any maintenance has been awarded in any proceeding arising under the DV Act, CrPC, HMA, HAMA, etc.? If yes, provide details of the quantum of maintenance awarded in the proceedings.

¶3If so, provide particulars thereof, along with a copy of the order(s) passed.

¶4Whether the order of maintenance passed in earlier proceedings has been complied with. If not, arrears of maintenance.

¶5Whether any voluntary contribution towards maintenance has been made/will be made in the future? If yes, provide details of the same. C. Details of dependent family members

¶1Details of dependent family members, if any.

(a) Relationship with dependants:

(b) Age and sex of dependant(s):

¶2Disclose if any independent source(s) of income of the dependants, including interest income, assets, pension, tax liability on any such income and any other relevant details.

¶3The approximate expenses incurred on account of the dependant. D. Medical details if any, of the deponent and/or dependent family members

¶1Whether either party or child/children is suffering from any physical/mental disability, or any other serious ailment. If yes, produce medical records.

¶2Whether any dependent family member has serious disability, requiring continuous medical expenditure. If yes, produce disability certificate and approximate medical expenditure incurred on such medical treatment.

¶3Whether either party or child/children or any other dependent family member is suffering from life-threatening diseases, which would entail expensive and regular medical expenditure? If yes, provide details of the same along with summary of previous details of hospitalisation/medical expenses incurred. E. Details of children of the parties

¶1Number of children from the existing marriage/marital relationship/previous marriage.

¶2Name and age of children.

¶3Details of the parent who has the custody of the children.

¶4Expenditure for maintenance of dependent children.

(a) Towards food, clothing and medical expenses.

(b) Towards expenses for education, and a summary of general expenses.

(c) Towards expenses, if any, of any extra educational, vocational or professional/educational course, specialised training or special skills programme of dependent children.

(d) Details of any loan, mortgage, charge incurred or instalment plan (being paid or payable), if any, on account of any educational expenses of children.

¶5Whether any voluntary contribution by either of the parties is being made towards these educational expenses? If yes, provide details of the same. Also provide an estimate of any additional contribution that may be required.

¶6Whether any financial support is being provided by a third party for the educational expenses of the children? F. Details of Income of the Deponent

¶1Name of employer:

¶2Designation:

¶3Monthly income:

¶4If engaged in government service, furnish latest salary certificates or current pay slips or proof of deposit in bank account, if being remitted directly by employer.

¶5If engaged in the private sector, furnish a certificate provided by the employer stating the designation and gross monthly income of such person, and Form 16 for the relevant period of current employment.

¶6If any perquisites, benefits, house rent allowance, travel allowance, dearness allowance or any other service benefit is being provided by the employer during the course of current employment.

¶7Whether assessed to income tax? If yes, submit copies of the Income Tax Returns for the periods given below:

(i) One year prior to marriage

(ii) One year prior to separation

(iii) At the time when the application for maintenance is filed

¶8Income from other sources, such as rent, interest, shares, dividends, capital gains, FDRs, Post office deposits, mutual funds, stocks, debentures, agriculture, or business, if any, along with TDS in respect of any such income.

¶9Furnish copies of bank statement of all accounts for the last 3 years. G. Assets (movable and immovable) owned by the Deponent

¶1Self-acquired property, if any:

¶2Properties jointly owned by the parties after marriage:

¶3Share in any ancestral property:

¶4Other joint properties of the parties (accounts/investments/FDR/mutual funds, stocks, debentures, etc.), their value and status of possession:

¶5Status of possession of immovable property and details of rent, if leased:

¶6Details of loans taken or given by the Deponent:

¶7Brief description of jewellery and ornaments of parties acquired during/after marriage:

¶8Details of transfer deeds or transactions of alienation of properties previously owned by the applicant, executed during the subsistence of the marriage. Also provide brief reasons for such sale or transaction, if any.

H. Details of Liabilities of the Deponent

¶1Loans, liabilities, mortgage, or charge outstanding against the Deponent, if any.

¶2Details of any EMIs being paid.

¶3Date and purpose of taking loan or incurring any such liability:

¶4Actual amount borrowed, if any, and the amount paid up to date of filing the Affidavit:

¶5Any other information which would be relevant to describe current liabilities of the Deponent. I. Self-employed persons/Professionals/Business Persons/Entrepreneur

¶1Brief description of nature of business/profession/vocation/self-employed/work activity.

¶2Whether the business/profession/self-employment is carried on as an individual, sole proprietorship concern, partnership concern, LLP, company or association of persons, HUF, joint family business or any other form? Give particulars of Applicant's share in the partnership/business/professional association/self-employment. In case of partnership, specify the share in the profit/losses of the partnership.

¶3Net Income from the business/profession/partnership/self-employment.

¶4Business/partnership/self-employment liabilities, if any, in case of such activity.

¶5In case of business of company, provide brief details of last audited balance sheet to indicate profit and loss of the company in which such party is in business in the company.

¶6In case of a partnership firm, provide details of the filings of the last Income Tax Return of partnership.

¶7In case of self-employed individual, provide the filings of the last Income Tax Return from any such professional/business/vocational activity. J. Information provided by the Deponent with respect to the income, assets and liabilities of the other Spouse

¶1Educational and professional qualifications of the other spouse:

¶2Whether spouse is earning? If so, give particulars of the occupation and income of the spouse.

¶3If not, whether he/she is staying in his/her own accommodation, or in a rented accommodation or in accommodation provided by employer/business/partnership?

¶4Particulars of assets and liabilities of spouse as known to the deponent, along with any supporting documents. K. Details of Applicant or the other Spouse, in case parties are Non-Resident Indians, Overseas Citizens of India, Foreign Nationals or Persons living abroad outside India

¶1Details of Citizenship, Nationality and current place of residence, if the Applicant or other spouse is residing abroad outside India, temporarily or permanently.

¶2Details of current employment and latest income in foreign currency of such applicant/spouse, duly supported by relevant documentation of employment and income from such foreign employer or overseas institution by way of employment letter or testimonial from foreign employer or overseas institution or latest relevant bank statement.

¶3Details of household and other expenditure of such applicant/spouse in foreign jurisdiction.

¶4Details of tax liability of applicant/other spouse in foreign jurisdiction.

¶5Details of income of applicant/other spouse from other sources in India/foreign jurisdiction.

¶6Details of expenses incurred or contribution made on account of spousal maintenance, child support or any other educational expenses, medical treatment of spouse or children.

¶7Any other relevant detail of expenses or liabilities, not covered under any of the above headings and any other liabilities to any other dependent family members in India or abroad.

Declaration

¶1I declare that I have made a full and accurate 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 as stated in this affidavit.

¶2I undertake to inform this Court immediately with respect to any material change in my employment, assets, income, expenses or any other information included in this affidavit.

¶3I understand that any false statement in this affidavit, apart from being contempt of court, may also constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code punishable with imprisonment up to seven years and fine, and Section 209 of the Indian Penal Code punishable with imprisonment up to two years and fine. I have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860.

DEPONENT Verification Verified at ___on this _____day of _____ that the contents of the above affidavit are true to my personal 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 on the basis of record. I further verify that the copies of the documents filed along with the affidavit are the copies of the originals. DEPONENT

¶10Clause I (2) of Enclosure I provides that in case of a company, the share of the deponent be indicated and the audited financial statement be file. Thus, once the audited financial statements of the company M/s. Lotus Liaison Pvt. Ltd. has been placed on record and in view of the share of the appellant being none, no further requirement of filing the bank account statements arose and thus, the objection was rightly rejected. Further, with regard to the partnership in the name of M/s. Anil K.Goyal & Associates is concerned, the Court directed the respondent to file the partnership deed and the ITRs within one week and as regards the income from M/s. Anil K.Goyal and Sons HUF is concerned, since the respondent stated that he has no share and concern in the said HUF, learned Metropolitan Magistrate

deemed it fit to not pass any further orders. Even going by the guidelines laid down in Rajnesh Vs. Neha (supra) as adverted to by the learned counsel for the petitioner, this Court is of the considered view that no further directions can be passed to the respondent to file further documents. Needless to note that in case the petitioner makes out a case of concealment, besides drawing adverse influence, the learned Magistrate would be competent to pass appropriate orders.

¶11Petition is accordingly dismissed. CRL.M.A. 19758/2021 (stay)

In view of the order passed in petition, the application is dismissed as infructuous.

(MUKTA GUPTA) JUDGE SEPTEMBER 02, 2022/akb

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Pronounced on: September 02, 2022 + SONATA PARASHAR ..... Petitioner Represented by: Mr.Jatin Sehgal, Advocate. versus TUSHAR GOYAL ..... Respondent Represented by: Ms. Priya Hingorani, Sr. Advocate with Mr Himanshu Yadav and Mr. Anirudh Jamwal, Advocates. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA 1. By this petition, the petitioner seeks setting aside of the order dated 17th November 2021 passed by the learned Additional Sessions Judge, Saket whereby the appeal filed by the petitioner against the order of the learned Metropolitan Magistrate dated 1st September 2021 wherein the respondent was directed to produce only the partnership deed and Income Tax Return, was dismissed. 2. The petitioner got married to the respondent on 23rd February 2015. However, due to the differences between the parties on the allegations of unlawful acts of the respondent, the petitioner filed an application under Section 23 of the Protection of Women from Domestic Violence Act 2005 (in short, the PWDV Act) before the learned Metropolitan Magistrate being CC No. 13307/2018 titled 'Sonata Parashar Vs. Tushar Goyal and Ors.' The learned Metropolitan Magistrate issued notice to the respondent on the said application and in the meantime, restrained him from dispossessing the petitioner from the matrimonial home. Vide order dated 27th April 2019, learned M.M. directed both the parties to file their respective income affidavits in terms of the judgment of this Court reported as (2020) 271 DLT 232 in Kusum Sharma Vs. Mahinder Kumar Sharma. 3. Grievance of the petitioner is that though she filed an income affidavit along with the relevant documents, however, the respondent filed his income affidavit without disclosing his true financial details along with the illegible, deficient and incomplete documents. Further, despite the undertaking given to file a complete set of income affidavit along with the set of legible documents, the so called complete set of documents filed by the respondent in support of his income affidavit was still incomplete and thus, the petitioner filed a list of missing documents to which the respondent gave an undertaking that after going through the said list, he will file the relevant documents, however, he failed to file the same. 4. Relying upon the decision of the Hon'ble Supreme Court reported as (2021) 2 SCC 324 Rajnesh Vs. Neha & Another, the learned Metropolitan Magistrate vide order dated 10th July 2020 held that the arguments on interim maintenance can be heard on the basis of material on record and adverse inference could be drawn at the time of passing the order. The petitioner challenged the said order dated 10th July 2020 before the learned Sessions Court and thereafter, before this Court. The appeal before this Court was disposed of vide order dated 5th July 2021 when both sides undertook that they will file their requisite affidavits/income documents on record before the learned Trial Court from the year 2015 onwards. 5. Pursuant to the order of this Court dated 5th July 2021, fresh income affidavits and the documents were filed, however, again the petitioner raised various objections. The petitioner was thus constrained to file another additional affidavit pointing out a comprehensive list of missing documents deliberately concealed and not filed by the respondent with his income affidavit. While dealing with the objections of the petitioner, the learned Metropolitan Magistrate directed the respondent to file some documents, however, with regard to the other documents, it was held that the same did not concern the respondent. Aggrieved by the said order of the learned Metropolitan Magistrate dated 1st September 2021, the petitioner preferred the appeal before the learned Additional Sessions Judge which was also dismissed vide order dated 17th November 2021. Hence, the present petition. 6. Vide order dated 1st September 2021, the learned Metropolitan Magistrate noted that the ob