The Calcutta High Court set aside maintenance orders passed under the Protection of Women from Domestic Violence Act, 2005, holding that the lower courts erred by fixing maintenance without requiring the parties to file affidavits of assets and liabilities. The judgment underscores the mandatory nature of financial disclosure in maintenance proceedings under the PWDV Act, directing a fresh inquiry based on verified income and liabilities.
Background & Facts
The Dispute
The petitioner, Madhumangal Biswas (husband), challenged the maintenance order passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 by the Learned Magistrate, Nadia, which directed him to pay ₹5,500 per month to his wife, Sima Biswas, and ₹6,500 per month to their daughter, and to allow the wife to remain in the shared household. The order arose from an application filed by the wife alleging non-payment of maintenance, physical and mental torture, and refusal to provide funds from her parental home.
Key Facts
- The marriage was solemnised on 11 December 1991 per Hindu rites.
- The husband is a ration dealer at Paikpara, earning ₹80,000 per month, but claims his actual income is ₹15,000 per month due to expenses on chronic hepatitis and other ailments.
- The wife alleged that from the inception of the marriage she was pressurised to bring more money from her parental house and, on non-fulfilment, subjected to physical and mental torture, leading to her being driven out of the matrimonial home with her younger daughter.
- The Learned Magistrate, after hearing, passed an order dated 15 November 2022 directing the wife to stay in the shared household and the husband to pay ₹5,500 per month to the wife and ₹6,500 per month to the daughter, payable within the 10th day of each subsequent English calendar month from the date of filing of the case.
- The husband, aggrieved, filed an appeal before the Sessions Judge, Krishna Nagar, which was dismissed on 12 December 2023.
- The husband filed the present criminal revision application in 2024.
- Execution proceedings were initiated: Execution Case No. 178/2023 claimed ₹96,000 at ₹12,000 per month; dues for 30.07.2023 - 29.03.2024 amounted to ₹24,000 and for 30.03.2024 - 29.08.2024 to ₹12,000, total ₹1,32,000, of which ₹1,03,000 was paid by 03.06.2026 leaving ₹29,000 outstanding; no payment on 01.07.2026 triggered a warrant of arrest.
- A second Execution Case No. 141/20 covered the period 30.04.2025 - 29.12.2025 for ₹96,000, of which ₹59,000 was paid, leaving ₹37,000 due; no payment on 03.07.2026 and 18.09.2026 resulted in further warrants, with the next date fixed for 06.01.2027.
- Maintenance for the period 30.12.2025 - 29.08.2026 remains due in the amount of ₹96,000, though no execution case has been filed for that period.
- The wife submitted a chart of assets and liabilities; the husband produced only receipts, stating a total paid amount of ₹8,35,000.
- The burden of proving income lies on the husband, but no documentary evidence was placed by either party before the lower courts.
Procedural History
- 11 December 1991 - Marriage solemnised.
- 15 November 2022 - Learned Magistrate’s order under Section 12 PWDV Act directing maintenance and shared household.
- 12 December 2023 - Sessions Judge dismissed the husband’s appeal against the Magistrate’s order.
- 2024 - Husband filed the criminal revision application (CRR 544/2024) before the Calcutta High Court.
- 01 July 2026 - No payment of maintenance; warrant of arrest issued in Execution Case 178/2023.
- 03 July 2026 and 18 September 2026 - No payment; further warrants issued in Execution Case 141/20.
- 06 January 2027 - Next date fixed for warrant of arrest in Execution Case 141/20.
- 14 October 2026 - Date of the High Court judgment (heard and pronounced on 14.10.2026).
Relief Sought
The petitioner sought to set aside the maintenance orders of the Learned Magistrate and the Sessions Judge, to be relieved from the obligation to pay maintenance without proof of income, and to have the matter remitted for a fresh determination after the parties filed affidavits of assets and liabilities.
The Legal Issue
The central question was whether, under Section 12 of the Protection of Women from Domestic Violence Act, 2005, a maintenance order can be passed without requiring the parties to file affidavits of assets and liabilities to ascertain the actual income and financial capacity of the husband, and whether the lower courts erred in fixing maintenance amounts solely on the basis of allegations and the husband’s bare assertions.
Arguments Presented
For the Petitioner
The petitioner’s counsel contended that the lower courts failed to take into consideration his chronic hepatitis and other ailments, which forced him to spend a major part of his income on treatment, and that his actual earnings were far lower than the ₹80,000 alleged. It was further argued that the application under Section 12 PWDV Act was not maintainable because no evidence was adduced by either party, and that the order was passed without giving the husband an opportunity to prove his case or to present documentary proof of income.
For the Respondent
The wife’s counsel submitted that the husband had persistently failed to comply with the maintenance order, leading to the filing of execution cases. It was stated that dues accumulated to ₹1,32,000 under Execution Case 178/2023 and ₹96,000 under Execution Case 141/20, with warrants of arrest issued for non-payment on 01.07.2026, 03.07.2026 and 18.09.2026. The counsel emphasized that the husband’s neglect to pay justified the coercive steps taken to recover the arrears.
The Court's Analysis
The Court examined the requirement of financial disclosure in maintenance proceedings under the PWDV Act. It noted that the burden of proving income rests on the husband, but in the absence of any documentary evidence placed by the parties, the lower courts had fixed maintenance amounts based solely on allegations and the husband’s bare assertions. The Court relied on the principle laid down in Rajnesh v. Neha & Ors., MANU/SC/0833/2020, which mandates that parties submit affidavits of assets and liabilities in any proceeding claiming maintenance so that the actual income can be ascertained. The Court observed that the Learned Magistrate and the Sessions Judge had overlooked this mandatory step, thereby passing orders without a proper inquiry into the husband’s financial condition. Consequently, the Court held that the maintenance orders were liable to be set aside and that a fresh inquiry must be conducted after the parties file their affidavits of assets and liabilities.
"It is mandatory to submit the Affidavit of Assets and Liabilities by the parties in respect of any proceeding filed claiming maintenance in order to assess the actual income of the parties."
The Verdict
The petitioner succeeded in part. The Court set aside the orders dated 15 November 2022 and 12 December 2023, directed both parties to submit their Affidavit of Assets and Liabilities before the Learned Magistrate on a date to be fixed, and directed the Magistrate to hear the case afresh on the basis of those affidavits. The petitioner is to continue paying ₹11,000 per month to the wife and daughter until final assessment, to pay the arrear amount in six equal instalments, and to pay an additional ₹5,000 per month towards rent as an alternative arrangement for shared household. The wife is at liberty to proceed with execution if the petitioner fails to comply with these directions.
What This Means For Similar Cases
Affidavit of Assets and Liabilities Is Mandatory in Maintenance Proceedings
Practitioners must ensure that, before seeking or resisting maintenance under the PWDV Act, the parties file verified affidavits of assets and liabilities. Failure to do so renders any maintenance order vulnerable to being set aside, as the Calcutta High Court has clarified that financial disclosure is a precondition for a valid order.
Burden of Proof on the Husband to Show Actual Income
The husband bears the onus of proving his actual income and expenses. Mere assertions of low earnings, unsupported by documentary proof such as salary slips, bank statements, or medical bills, are insufficient. Counsel should advise clients to prepare comprehensive financial disclosures to avoid adverse inferences.
Execution of Maintenance Orders Requires Procedural Safeguards
Warrants of arrest and execution proceedings cannot be initiated if the underlying maintenance order was passed without complying with the mandatory affidavit requirement. Before moving for execution, counsel must verify that the order was based on a proper inquiry into the parties’ financial capacity; otherwise, the order may be challenged and set aside.
