Sunday 25 January 2015

Landmark Judgment of Delhi high court on divorce and maintenance

Hiding your assets and income from the court during divorce or maintenance proceedings will now be difficult with the Delhi High Court issuing directions that both the husband and the wife have to file detailed affidavits of income, assets and expenditure at the time of filing for divorce or maintenance petitions.
In a 46-page judgment issued last week, Justice J R Midha directed that the detailed affidavit, along with copies of relevant documents, have to be submitted by both parties at the time of divorce proceedings so that maintenance orders can be passed by courts within 60 days of the divorce being initiated on the basis of “true income”.
The court asked Additional Solicitor General Sanjay Jain to take up the issue with the Law Ministry so that relevant legal provisions can be amended to include the mandatory affidavits.

“Maintenance is not merely a legal right, it is part and parcel of basic human rights. For weaker sections, it is a problem in the sense that their very survival rests on the maintenance,” observed the court, adding that “lengthy trial in matrimonial proceedings is uncalled for and contrary to the spirit of the Hindu Marriage Act”.
Directing all family courts to ensure that the affidavits are filed, Justice Midha said the directions were “necessitated because the parties in the matrimonial litigation do not disclose their true income and the claims of maintenance are dragged up to two years and the court, finding it difficult to determine the true income, tends to fix maintenance by drawing presumptions”.
Among the documents which need to be submitted include copies of bank account statements of all accounts for the past three years, income tax returns along with statement of income for three years, wealth tax returns, cost to company certificate, CIBIL certificate, balance sheets and profit and loss accounts of companies, lease deeds and dividend certificates. Details of “lifestyle” like number of domestic helps, mode of travel and category of hotels used for stay also have to be submitted with the affidavit. The complete format will soon be uploaded on the website of the district courts.
“The aforesaid procedure be followed in all cases relating to maintenance, including cases under the Hindu Marriage Act, 1955, Protection of Women from Domestic Violence Act, 2005, Hindu Adoption and Maintenance Act, 1956, Special Marriage Act, 1954, The Indian Divorce Act, 1869 as well as Section 125 CrPC,” the court directed.
It directed family courts to remain vigilant to ensure that the affidavit “is not reduced to mere ritual” and to “scrutinise the affidavit threadbare.”
Justice Midha gave the directions after taking up a bunch of petitions filed by women to get maintenance during divorce proceedings as well as permanent alimony fixed once divorce is granted. The bench also asked lower courts to send their reports on the working of these guidelines by July for further consideration.

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