The Supreme Court observed that right to maintenance is equivalent to a fundamental right and shall have an overriding effect over statutory rights of creditors under Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, the Insolvency and Bankruptcy Code, 2016 ( SARFAESI/ IBC ).
The two judge bench of Justices Surya Kant and Ujjal Bhuyan observed that “the right to maintenance is commensurate to the right to sustenance. This right is a subset of the right to dignity and a dignified life, which in turn flows from Article 21 of the Constitution of India. In a way, the right to maintenance being equivalent to a fundamental right will be superior to and have overriding effect than the statutory rights afforded to Financial Creditors, Secured Creditors, Operational Creditors .”
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Apurvo Bhuvanbabu Mandal, the appellant-husband has laid challenge to the order passed by the High Court of Gujarat at Ahmedabad, whereby the respondent-wife has been granted maintenance at the rate of Rs.1,00,000/- (Rupees One Lakh) per month whereas both the children have been granted maintenance of Rs.50,000/- (Rupees Fifty Thousand) each per month. The Family Court, Surat had previously granted a paltry amount of Rs.6,000/- per month to the wife and Rs.3,000/- per month to each of the children. Thereafter, the aggrieved wife and children approached the High Court through a Revision Application, which was allowed vide the impugned order.
While enhancing maintenance, the High Court took notice of the fact that the appellant is a businessman, who owns a diamond factory. The status of the appellant was briefly highlighted, referring to the fact that he had employed a Manager in his office to look after day-to-day affairs. The High Court has also drawn adverse inference against the appellant as he failed to produce income-tax documents, despite admittedly being an income-tax assessee.
The appellant for reasons best known to him, did not produce his income-tax return despite a direction issued by the High Court to that effect. The High Court accepted the claim of the respondents for enhancement of maintenance. The High Court further directed that the above-stated amount shall be payable from the date of filing the application and the appellant shall be obligated to deposit the arrears before the Family Court within a period of six months.
The appellant has placed the income-tax returns and some other documents in order to assail the monthly income, as projected before the High Court by the respondent-wife, being highly exaggerated. The appellant further claims that he is not in a financial position to pay the maintenance at the rate awarded by the High Court. It is also urged that the respondent-wife is self employed and earns her own income and, thus, does not require any maintenance.
It was clarified that the reduced amount of maintenance, in terms of order was required to be paid, from the date the higher amount of maintenance was awarded by the High Court. In other words, it was clarified that the respondent-wife shall be paid Rs.50,000/- per month as maintenance with effect from 12.09.2022 and the children shall be paid maintenance at the rate of Rs.25,000/- per month from the same date, i.e., 12.09.2022. The appellant-husband was held liable to pay the maintenance at the enhanced rate, as awarded by the High Court, from the date when they applied for grant of maintenance till 12.09.2022.
The appellant’s plea that on account of losses in business, his income has substantially reduced or that the recovery proceedings have been initiated, is essentially a question of fact and it will not be prudent to accept or reject the same at this stage. Suffice to observe that such like factors can be taken into account by the court of competent jurisdiction as and when a party approaches it under Section 127 Cr.P.C.
It was directed to the appellant to pay the arrears of maintenance within a period of three months. It was directed that the charge of arrears of maintenance, payable to the respondents, shall have preferential right over the assets of the appellant, over and above, the rights of a secured creditor or similar right holders, under any recovery proceedings. Wherever such proceedings are pending, that forum is directed to ensure that the arrears of maintenance are released to the respondents forthwith. No objection of any secured creditor, operational creditor or any other claim shall be entertained opposing the entitlement of the respondents for maintenance.
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In case the appellant fails to pay the arrears of maintenance to the respondents, the Family Court shall take coercive action against the appellant and, if so required, may auction the immovable assets for the purpose of recovery of arrears of maintenance.
The bench held that there was no proper documentary evidence before the High Court to assess the income of the appellant, and as noticed earlier, it may not be prudent to entertain such documents at one end. That being so, nothing precludes the respondent-wife or the children to approach the Court under Section 127 Cr.P.C. to seek suitable amendment in the grant of maintenance, provided they are able to produce some evidence/particulars of the income of the appellant.
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