The Court emphasized the importance of providing financial security to the appellant and affirmed the remand order due to the lack of evidence of the respondent's income.

ORDER :

1. Leave granted.

2. 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 1973¹ [“Cr.P.C.”] has been remanded for fresh disposal. Parties have been given the liberty to adduce further evidence before the trial court.

3. 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 Cr.P.C. 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 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.

4. 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.

5. 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.

6. In support of the application for maintenance under Section 125 of the Cr.P.C. 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 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.

7. 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 C