IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR FA No. 5 of 2022 (SMT.SUNITA JAIN Vs PAWAN KUMAR JAIN)

Dated : 03-04-2024 Shri Sankalp Kochar - Advocate for appellant/wife.

Shri Akshat Agrawal and Shri Rakesh Kesharwani - Advocate for respondent/husband.

Learned counsel for respondent/husband has yet not filed any reply/affidavit in the prescribed format, to the affidavit filed by appellant/wife under Section 24 of HMA Act.

Learned counsel for the respondent/husband places reliance on the Single Bench Decision of Bombay High Court rendered in WP (ST) Nos. 1913 of

2024 and 1884 of 2024 rendered on 20th March 2024, which holds thus:-

"4. Pivotal issue arising for consideration is whether the filing of affidavit of Disclosure of assets and liabilities as per the directions of the Apex Court in the case of Rajnesh V. Neha (supra) can be directed at the appellate state challenging the final judgment of trial Court delivered under the Protection of Women from Domestic Violence Act [

for short, "the DV Act"].

19. The Sessions Court has mis-read the decision of the Apex Court in Rajnesh v. Neha (supra) and has picked up the direction in isolation as regards the filing of affidavits in all maintenance proceedings including the pending proceedings and read the same out of context. No doubt, the appeal is a continuation of original proceedings, however, it needs to be noted that the filing of the affidavit of assets and liabilities would amount to bringing in new material which Signature Not Verified Signed by: SANTOSH will have to be tested on the touchstone of evidence which will not be permissible at the appellate stage after final adjudication. At the appellate stage, where challenge is to the final judgment, as opposed to an appeal against an order of interim maintenance, in my view, upon reading of the decision of Rajnesh v. Neha (supra), the direction of filing of affidavit of disclosure cannot be said to apply inasmuch as the time of final determination, there is material available before the Trial Court supported by evidence on the basis of which rights of the parties have been determined.

20. In view of the above, Petitions succeed. Impugned orders dated 8th December, 2023 passed below Exhibit-"4" in Criminal Appeal No. 16 of 2021 and Criminal Appeal No. 44 of 2021 are hereby quashed and set aside. The Sessions Court is directed to decide the appeals on its own merits in accordance with law. Rule is made absolute in both the petitions.

21. In view of the disposal of petitions, interim application (s)

taken out in these petitions, if any, does not survive and the same is disposed of."

After having gone through the decision of learned Single Judge of Bombay High Court (supra) having tested the same on the anvil of Section 24 of Hindu Marriage Act, we prima-facie feel that the said judgment appears to be rendered per incurium the mandatory provisions of Section 24 of Hindu Marriage Act, which confer statutory right upon wife to file an application for pendente lite maintenance during pendency of any proceedings under the Hindu Marriage Act. The proceedings in the present appeal filed under Section 28 of the Hindu Marriage Act read with Section 19 of Family Court are the Signature Not Verified Signed by: SANTOSH proceedings under the Hindu Marriage Act.

It is also contended by learned counsel for respondent husband that Single Judge of Bombay High Court has held that the requirement of filing an affidavit by the wife claiming relief under Section 24 of Hindu Marriage Act and the counter affidavit filed by husband in proper format as per law laid down by Apex Court in the case of Rajnesh V. Neha (supra), applies exclusively to the court of first instance i.e. Family Court, but not to the Appellate Court (this Court). It is further urged that filing of affidavit as per Rajnesh Vs. Neha (supra) at appellate stage amounts to adducing of evidence, which is impermissible in law.

We have gone through the judgment of the Apex Court in Rajnesh Vs.

Neha. W