IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos. 1129-1130 OF 2019
(Arising out of SLP (Crl.) No.643-644 of 2019
Kaushalya ... Appellant
versus
Mukesh Jain ... Respondent
O R D E R
Leave granted.
These appeals arise from an order of a learned Single Judge of the Madras High
Court dated 20 November 2019 by which the application for maintenance filed by the
appellant under Section 125 of the Code of Criminal procedure 1973 1
has been remanded for fresh disposal. Parties have been given the liberty to adduce further evidence before the trial court.
The appellant and the respondent got married on 17 May 1995. The marriage
faced difficulties. On 16 October 2006, the respondent instituted a petition for divorce
before the Family Court at Jodhpur. On 22 August 2007, the appellant instituted
maintenance proceedings under Section 125 of the CrPC before the Family Court at
Chennai. Parties adduced evidence in the maintenance proceedings which continued
to remain pending from 2007 until 29 April 2017 when the First Additional Family Court
at Chennai awarded maintenance in the amount of Rs 20,000 per month to the
1 �CrPC�
2
appellant with effect from 22 August 2007 which is the date on which the petition for
maintenance was instituted. Both the parties moved the High Court in revision, the
appellant seeking enhancement of maintenance, while the respondent challenged the
order for the grant of maintenance. The High Court allowed the revision filed by the
respondent on the ground that the Family Court, having held that the appellant had
failed to demonstrate what was the actual income earned by the respondent, an award
of maintenance in the sum of Rs 20,000 per month was without basis. Accordingly, an
order of remand was passed.
In the meantime the respondent filed a divorce petition being Original Case No
268 of 2006 and on 29 November 2008 an ex parte decree granting the divorce was
passed. The appellant has moved an application for setting aside the ex parte decree
on the ground that the summons were not served on her and that though she resides at
Chennai, substituted service took place through the publication of the summons in the
newspapers at Jodhpur. Since the application for setting aside the ex parte decree is
pending, that does not form the subject matter of these proceedings.
During the course of proceedings before this Court, it has emerged that since the
passing of the decree for divorce, the respondent has married and has a child from the
marriage.
In support of the application for maintenance under Section 125 of the CrPC, the
appellant stated that the respondent who is a member of a joint family has a shop at
Jodhpur and a jewellery and financing business. The respondent denied these
averments. In the course of his response, the respondent stated on the one hand that
he was now residing in Baroda as he is employed there having been forced to leave
the joint family because of the behaviour of the appellant. The respondent claimed that
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he was working on a monthly remuneration of Rs 3,500 in a school in District of Panch
Mahal and that presently, he was working for a private limited company as a Supervisor
on a salary of Rs 5,000 per month. The aforesaid position was set out in the counter
affidavit filed before the Family Court on 14 July 2008.
The judgment of the Trial Court indicates that the appellant relied upon the
commercial tax returns and the deposition of the sister in law of the respondent in OP
No 268 of 2006. The learned counsel appearing on behalf of the appellant has placed
reliance on the documentary material. In the divorce proceedings before the Family
Court at Jodhpur, the respondent in the course of his deposition, stated that all the
brothers have a joint business and there is a shop where the joint business was being
carried on. The sister-in-law of the respondent (PW-2) in the above case stated that all
the members of the family were residing together as a joint family. The father of the
respondent, in his evidence, also made a reference to the shop in which the family
carried on its business. The appellant produced the returns obtained from the
Commercial Taxes Department and the Government of Rajasthan for the purposes of
Value Added Tax which indicates a gross turn over of Rs 7.82 crores of a firm by the
name of Shreepal Marketing for the period from 1 July 2015 to 30 September 2015.
Besides the aforesaid documentary material, the appellant has also produced
documents obtained from the Commercial Taxes Department which are annexed to the
affidavit in rejoinder.
On the above state of the record, we find a considerable degree of merit in the
submission which has been urged on behalf of the appellant by Ms Astha Tyagi, learned
counsel that while the Trial Court may have felt some difficulty in making an exact
computation of the income of the respondent, this is certainly not a case where the
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appellant should be left in the lurch without any order of maintenance whatsoever
pending an uncertain future date when the remanded proceedings would be decided.
Ms Vrinda Grover, learned counsel appearing on behalf of the respondent has
submitted that the material which was produced by the appellant in relation to the
premises of the shop and business related to the period when the parties lived together
and that the situation of the respondent has now materially changed. At the same time,
while assessing this submission, the Court cannot be unmindful of the fact that the
respondent has since the ex parte decree for divorce, entered into a wedlock and is in a
position to maintain his family. Having regard to all these facts and circumstances and
bearing in mind the fact that the application for maintenance remained pending for
nearly a decade, we are of the view that there would be a serious miscarriage of justice
if an order of remand simplicitor is passed without providing any financial security to the
appellant. Even the application for setting aside the ex parte decree for divorce has
remained pending unfortunately for a decade. This state of affairs has to be rectified at
the earliest since it is symptomatic of the breakdown of the administration of justice in
family matters.
Ms Vrinda Grover, learned counsel submitted that in the course of remanded
proceedings, the respondent would wish to lead evidence in regard to the financial
position of the appellant. Undoubtedly, parties are at liberty to advance their specific
cases by producing such additional evidence they seek to produce in pursuance of the
order of the High Court.
We are inclined to affirm the order of remand for the reason that the difficulty
which the learned Judge of the Family Court faced in making a fair assessment of the
income of the respondent was noticed by the High Court. During the course of hearing,
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we have been taken through the relevant documents and on an overall consideration of
the matter, we are of the view that it will be appropriate to affirm the order of remand. At
the same time, doing so without a protective ad interim direction for the grant of
maintenance would result in a failure of justice.
Hence, we pass the following order:
(1) The order of remand passed by the High Court on 20 November 2018 shall stand
confirmed;
(2) The First Additional Family Court, Chennai is directed to dispose of the
proceedings of remand within a period of six months from the date of receipt of a
certified copy of this order after allowing the parties an opportunity to adduce such
further evidence as they may desire within a period of two months from the date of
receipt of a certified copy of this order;
(3) In the meantime, the order passed by the Trial Court for the grant of maintenance
shall operate as an ad interim direction and the arrears which are payable to the
appellant shall be paid over in six equal monthly instalments, the first of which shall be
payable on or before 14 August 2019. The rest of the instalments shall be payable on
or before ninth day of every succeeding month. Any payment which is made to the
appellant in pursuance of above directions shall abide by the final directions of the
Family Court in regard to the payment of maintenance; and
(4) In the event that there is any failure on the part of the respondent to comply with
the order for deposit of arrears and month to month installments, it will be open to the
appellant to apply before the Family Court to get the defence of the respondent struck
off.
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The parties have agreed, in the meantime, to explore the possibility of a
mediated settlement and have agreed to the nomination of Mr Sriram Panchu, learned
senior counsel practising before the Madras High Court for that purpose. We request
Mr. Sriram Panchu to act as a mediator. Any settlement may be filed by the parties by
moving a Miscellaneous Application before this Court.
The appeals are disposed of accordingly.
...............................................,J.
(Dr D Y Chandrachud)
...............................................,J.
(Indira Banerjee)
New Delhi;
July 24, 2019
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ITEM NO.4 COURT NO.11 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
petition9s) for Special Leave to Appeal (Crl.) No(s).643-644/2019
(Arising out of impugned final judgment and order dated 20-11-2018
in CRLRC No. 783/2017 20-11-2018 in CRLRC No. 1139/20-17 passed by
the High Court of Judicature at Madras)
KOUSHALYA Appellant(s)
VERSUS
MUKESH JAIN Respondent(s)
Date : 24-07-2019 These appeals were called on for hearing today.
CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MS. JUSTICE INDIRA BANERJEE
For Appellant(s) Ms. Astha Tyagi, Adv.
Mr. V. Balaji, Adv.
Mr. N. Seshadri, Adv.
Mr. Asaithambi MSM, Adv.
Mr. C. Kannan, Adv.
Ms. Sripradha Krishnan, Adv.
Mr. Rakesh K. Sharma, AOR
For Respondent(s) Ms. Vrinda Grover, Adv.
Mr. Rishabh Sancheti, Adv.
Ms. Padma Priya, Adv.
Mr. Anchit Bhandari, Adv.
Mr. Nishit Shah, Adv.
Mr. Suyash Rawat, Adv.
Mr. K. Paari Vendhan, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals are disposed of in terms of the signed order.
(GULSHAN KUMAR ARORA) (SAROJ KUMARI GAUR)
COURT MASTER COURT MASTER
(Signed order is placed on the file)
