Rashmi Barua vs Sumant Prasad Barua

Suman Shyam, J

Heard Ms. M. Borah, learned counsel for the appellant. We have also heard Mr. A.D. Choudhury, learned counsel appearing for the respondent.

This appeal is directed against the order dated 30-01-2020 passed by learned Principal Judge, Family Court No. 1, Kamrup at Guwahati in Misc. (J)

Case No. 132/2018 whereby, the application filed by the appellant (wife) seeking maintenance pendentlite under Section 24 of the Hindu Marriage

Act, 1955 was disposed of by the learned Family Court declining her prayer for payment of maintenance on the ground that the appellant was having a

monthly income in excess to Rs. 1,50,000/- and therefore, there was no question of any financial hardship faced by her. However, a sum of Rs.

50,000/- was directed to be paid to her as litigation expenses.

Referring to the impugned order, Ms. Borah submits that the finding of fact regarding source of income of her client recorded by the learned Family

Court is perverse in the eye of law, inasmuch as, there was no evidence available before the learned court below to record such a finding. On such

ground, Ms. Borah has prayed for setting aside the impugned order with a further request for considering the prayer made by the appellant for

maintenance pendentlite afresh.

Responding to the above, Mr. A.D. Choudhury, learned counsel for the respondent submits that although there was no material produced by the

appellant before the learned Family Court, the respondent had brought some documents on record, based on which, the finding was recorded by the

learned court below. Mr. Choudhury submits that the appellant has sufficient source of income and therefore, she would not be entitled to any

maintenance pendentlite. Learned counsel for the respondent has also questioned the maintainability of the appeal.

At the stage of admission hearing of the appeal, taking note of the controversy involved in this proceeding and in view of the decision of the

Hon’ble Supreme Court in the case of Rajnesh Vs. Neha & Anr. [Crl. Appeal No. 730/2020], we had asked both the parties to file affidavits

declaring their assets and liabilities. Accordingly, both the parties have brought on record their respective affidavits indicating their assets and liabilities.

However, during the course of hearing of this appeal, learned counsel for both the sides have heavily disputed the contents of such affidavits.

After a careful scrutiny of the materials on record, we find that the materials annexed to the affidavit were not produced by the appellant before the

court below, nor did the learned court below direct the appellant to produce such evidence to show her income status. It was only at the stage of

admission hearing of this appeal, such materials have been brought on record by the appellant for the first time by filing an additional affidavit.

Therefore, it is evident that the finding of the learned court below, as regards monthly income of the appellant was recorded without considering the

materials produced by her. Since the question of monthly income, assets and liabilities of both the parties are heavily disputed, it will not be permissible

for this Court to record a finding of fact on such disputed question of fact for the first time in this appeal. At the same time, the impugned order dated

30-01-2020 also does not appear to be based on proper materials available on record and hence, is found to be unsustainable in law.

As such and as agreed to by the learned counsel for both sides, we set aside the impugned order dated 30-01-2020 and remand the matter to the court

of Principal Judge, Family Court, Kamrup at Guwahati so as to decide the Misc. (J) Case No. 132/2018 afresh, after considering the materials brought

on record by both the parties.

It is made clear that within 03 weeks from today, both the parties would file their comprehensive affidavits indicating the assets and liabilities by

adhering to the format laid down in the case of Rajnesh (Supra) and after serving advance copy upon the other side. Once the affidavits are brought

on record, an attempt may be made to dispose of the application on merit, as expeditiously as possible, preferably within a period of 03 months

thereafter, by following the due process of law.

With the above observation, this appeal stands disposed of.