IN THE COURT OF SH. XXXX, LD. PRINCIPAL JUDGE, FAMILY COURT, XXXX COURTS, DELHI

CC No.XXXX

IN THE MATTER OF:-

XXXX & Anr.                                                         ....Petitioners

                         Versus

XXXX                                                                      ...Respondent

APPLICATION U/S 340 (1) OF Cr.P.C, 1973, FOR THE ACT OF PERJURY
COMITTED BY THE RESPONDENT UNDER AFFIDAVIT AND SOLEMN AFFIRMATION UNDER OATH SUBMITTED BY THE RESPONDENT BEFORE THIS COURT

MOST RESPECTFULLY SHOWETH AS UNDER: –

1. That the petitioners have filed the present case under Section 125 of the Code of Criminal Procedure, 1973 against the respondent before this Hon’ble Court which is pending for further proceeding.

2. That the Respondent through his financial affidavit & written statement specifically pleaded that he was not working and has no means of income. On the basis of the false submission of the respondent this Hon’ble Court, granted interim maintenance, vide its order dated XXXX, to the tune of Rs.XXXX/- per month in favour of Petitioner No.2 only and no interim maintenance was awarded in favour of Petitioner No.1.

3.   That it is relevant to mention here that at entry 7 of the part I of the income affidavit filed by respondent it was averred by the respondent, which is reproduced herein for the perusal of the Hon’ble court and the same is mentioned as below:-

 “previously I was doing private job at XXXXX, General Insurance, Delhi. But due to the cases filed by the petitioner, I could not continue my job regularly, hence I was terminated by the company vide letter dated XXXX and presently I am unemployed. Now I am trying to search a new job”.

and as such on the basis of the submission of the respondent Hon’ble court had presumed the earning of the respondent on the basis of ‘minimum wages schedule’ and the observation was as mentioned below:-.

“He left the job by his own will and this was clear mentioned by the company vide letter dated XXXX”.

4.   That it is submitted to the Hon’ble court that respondent not only hide his income but also deliberately with cunning motive not furnished any information/particular regarding his expenditure in the income affidavit filed by him.

5.   That it is respectfully submitted that while the respondent has specifically pleaded before this Hon’ble Court that he was not working, he has only misled this Court by deliberate concealment and active misstatement of material facts as to his employment status by way of furnishing false affidavit. In fact the Respondent in a manner amounting to perjury, has stated in his income affidavit that he remains unemployed. He has deliberately and dishonestly withheld the fact that he has joined beneficial employment of XXXX Company after his termination from XXXX, with nefarious intent of avoiding responsibility of paying any maintenance to the Petitioners.

6.   That the respondent is employed with XXXX with a monthly salary of INR XXXX/- (Rupees sixty thousand only). However the impugned order was passed on the presumption that the respondent was unemployed and his earning capacity was presumed equivalent the amount notified under the Minimum Wages Act i.e. INR XXXX/- per month by this Hon’ble on the basis of the false and forged income affidavit filed by the respondent. Moreover, in view of this fact the very basis of denial of interim maintenance to the petitioner no.1 that she earns more than the respondent goes completely defenestrated and as such deserves alteration.

7.   It is also appraised to the Hon’ble court that the petitioner no.1 is compelled to file the present application due to the subsequent change in the circumstances of the petitioner no.1 which is required to be brought into the knowledge of the Hon’ble court that petitioner no.1 had resigned from her job in the month of XXXX which was accepted by the employer of the petitioner no. 1.  It is also submitted to the Hon’ble court that petitioner got offer letter from a new Company i.e. ‘XXXX.’ But unfortunately above said offer letter was revoked by the company due to the COVID19 pandemic. Since then petitioner no.1 could not found employment for herself despite her diligent efforts due to the world wide recession on account of COVID19 pandemic.

8.   That it is relevant to state here that respondent in his Affidavit filed before this Hon’ble Court, specifically, on oath, stated/pleaded and re-affirmed his facts regarding him not earning, which are totally false and incorrect. Thus, by giving/filing false affidavit/evidence, on oath, before this Hon’ble Court regarding his employment, respondent has committed offences relating to documents given in evidence as per Section 195, under Sections 191, 193, 196, 199, 200 of the Indian Penal Code, which led to filing of present application by the Petitioner before this Hon’ble Court u/s 340 Cr.P.C. for initiating an inquiry against the petitioner for the offences referred to
in Section 195 Cr.P.C for consideration by this Hon’ble Court as the respondent on oath, has given false facts/evidence regarding his employment at the time of filing his ‘income affidavit’ and ‘written statement’ of the petition before this Hon’ble Court and it is also submitted before this Hon’ble Court that the respondent was employed at the time of receiving the summons from this Hon’ble Court, he was also employed at the time of filing the ‘written statement’ & ‘income affidavit’.

9.   That even the Hon’ble Supreme Court in a well-known dictum rendered by a three bench judgment reported in (2002) 1 SCC 253, titled, Pritish vs. State of Maharashtra and Ors. has deprecated the practice of suppressing income in cases of maintenance  and strongly recommended initiation of criminal prosecution for suppression of  material facts and giving wrong information on oath before the Courts.

In Abhishek Dubey v. Archana Tiwari, CRL.REV.P. 944/2019, decided on 15-10-2019, Hon’ble Suresh Kumar Kait, J. while deciding the petition enhanced the interim maintenance amount to be paid to the wife and directed the trial court that while deciding the DV Act petition finally, it shall take into consideration all the facts and circumstances and the fact that how much the petitioner is earning from all sources.

Brief facts of the abovesaid case are reproduced herein as follow for the perusal of the Hon’ble court that Respondent had filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the Metropolitan Magistrate alleging cruelty and torture towards the respondent along with the payment of dowry against the petitioner and his family members.

It is further stated that, petitioner is a known businessman in Lucknow and usually deals with his business in cash and he is also one of the biggest suppliers in Lucknow who earns around Rs 2 lacs/day. The petitioner and his family, who are co-accused in the present case, have also invested Rs 5 crores with local builders and the same is dealt under the name of ‘Nirman Traders and Engineers’.

Adding to the above, it is stated that it is further stated that the petitioner has produced a fake rent agreement showing as if he was living in rental accommodation on 2nd Floor of House No. 2, Shriram Puram Maharishi Tiraha, IIM Road, Lucknow, however, the truth is that there is no 2nd Floor in the said building at all.

In view of the above, Court stated that, Petitioner has committed perjury by stating the said fact before the Trial Court whereas he is not residing there and the address is fake. Thus, the court directed the Trial Court to issue proceedings against the petitioner under Section 340 CrPC.

Court noted that if a person is in business and dealing in cash, it will be difficult to establish how much earning such a person has. However, the Court can assess the income by taking into consideration the standard of living and what he was earning before separation from the wife. It seems the petitioner is in the car trading business. In addition, he is looking after the family business. Thus, on the conservative side, he is earning at least Rs 50,000 to Rs 1,00,000 per month.

Hence the Court held that, the respondent is legally wedded wife of the petitioner and is duty-bound to maintain her as per his status. In the present day, Rs 10,000 is a meagre amount awarded by the Trial Court, to maintain as per standard of the husband.

Thus, while dismissing the present petition, High Court enhanced an amount of Rs 20,000 per month, as interim, to be paid from the date of filing of the DV Act petition.

10. Thus, from the aforesaid submissions, it is crystal clear that Respondent in his ‘Written Statement’ & detailed ‘income affidavit’ asserted/pleaded wrong facts regarding his employment and suppressed the material facts relating to his employment, to anyhow avoid paying any maintenance lawfully due and payable to Petitioners. Thus,  facts clearly shows beyond doubt the conduct of the respondent, with further clarification that he has not approached with clean hands before this Hon’ble Court and has made perjury by filing the false and frivolous written statement to the petition and ‘Income affidavit’ on oath by giving wrong information, which attracts penal provisions of Section 340 Cr.P.C., whereby and thereby, it is humbly prayed that this Hon’ble Court may initiate an enquiry for the offences ‘relating to documents given in evidence’ committed by the respondent referred to in Section 195 of the Criminal Procedure Code.
11. That the accused has concealed and suppressed true facts, submitted under oath and has made false submissions under oath, which are perjurious in nature.
12. That the respondent is guilty for the Act of perjury by making false statements, on oath solemnly affirming, willfully and knowingly that those Statements are false, in “Income Affidavit” submitted by the respondent before this Hon’ble court with oblique motive to misguide and mislead this Hon’ble court with a view to avoid his duty to maintenance towards the petitioners.
13. Thus material on record before this Hon’ble court and perusal of detail aforesaid description in this application clearly proves that respondent has committed act of perjury by intentionally giving enormous false and fabricated evidence during judicial proceeding in this Hon’ble court by submitting false in his “AFFIDAVIT”. Thus filing false affidavit in the court of law, causes obstruction in the course of justice and also adversely affecting the administration of justice. Also respondent cannot be permitted to take liberty of spoiling purity of justice. In this facts and circumstances, the petitioner has filed this present application in this Hon’ble Court in exercise of jurisdiction of this Hon’ble court u/s 340(1) of Cr.P.C, 1973 against the respondent and it is to expedient in the interest of justice to prosecute the respondent as prima facie evidences are adduced in that behalf. Hence respondent is punishable for the act of perjury, adversely affecting the administration of justice.
14. The present application is made bona fide and in the interest of justice.

P R A Y E R

It is therefore, most humbly prayed by the petitioner that;

a.    By considering the aforesaid facts and circumstances, petitioner most humbly pray that this Hon’ble court be pleased to kindly charge the respondent and
commit the matter to the concerned Metropolitan Magistrate court to prosecute the petitioner for the act of perjury in his ‘Income Affidavit on oath’ and written statement for the offences relating to the document given in evidence before this Hon’ble;

b.   Kindly pass such other suitable orders as may deem fit and proper to meet the ends of justice in the peculiar facts and circumstances of the case
AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE ABOVENAMED PETITIONER AS IN DUTY
BOUND SHALL EVER PRAY.

Petitioner No.1

Through

Date:

New Delhi                                                                                COUNSEL         

IN THE  COURT OF SH. XXXX, LD. PRINCIPAL JUDGE FAMILY COURT, XXXX COURTS, DELHI

CC No.XXXX

         IN THE MATTER OF:-

XXXX & Anr.                                                                     ....Petitioners

                                           Versus

XXXX                                                                               ...Respondent

AFFIDAVIT

Affidavit of XXXX D/oXXXX R/o XXXX at present XXXX, do hereby solemnly affirm and declare as here under:

1.   that the deponent is the petitioner no.1 and filing the present application and well conversant with facts and circumstances of the case hence, competent to sign this affidavit.

2.   That the content of the accompanying application is drafted by my counsel, legal averments are true and correct to my belief which is based on legal advice rendered and believed to be correct.

3.   I have gone through and understood the contents of the same, I say that the facts stated therein are true and correct to my knowledge.

DEPONENT

VERIFICATION:

Verified at New Delhi on this ___ day of ___, 2020 that the content of the above affidavit are true and correct to my knowledge. No part of it is false and nothing material has been concealed therefrom.

DEPONENT