Top News Headlines 4th May 2022: Asking Husband To Produce Salary Slip In Maintenance Proceedings Cannot Be Called A Violation Of Privacy: Madhya Pradesh HC

1) Asking Husband To Produce Salary Slip In Maintenance Proceedings Cannot Be Called A Violation Of Privacy: Madhya Pradesh HC

• The Madhya Pradesh HC has observed, in Rashi Gupta and ors vs Gaurav Gupta that where the financial of the parties is one of the relevant considerations for adjudicating the lis, asking the husband to produce his salary slip cannot be termed as a violation of his privacy.
• In the instant case, the husband was directed by the Family Court, Gwalior to pay 18,000/- as maintenance to his wife. However, it was alleged that he was trying to delay the matter. Thus, it was ordered by the Court that he file a reply within a span of two weeks, failing which the Court would proceed ex parte. He was also directed to produce the appropriate documents in support of hsi submission regarding his salary structure.
• In response to the aforesaid order, the respondent (husband) filed his reply but did not file the salary slip on the ground that compelling the husband to file the salary slip would be violative of the protection guaranteed by Article 21 of the Constitution.
• The Counsel for the respondent/husband also alleged that forcing him to file his salary slip would also stand in violation of Article 20 of the Constitution, as no one can be forced to give evidence against himself.
• At the outset, the Hon’ble HC observed that the instant proceedings arose out of section 125 of CrPC, and thus there was no question of conviction of the respondent as he is not an accused. Therefore, Article 20(3) would not apply to the case at hand, as it states that no person accused of an offence can be compelled to be a witness against himself.
• The Court referred to the decision of the Apex Court in Shamima Farooqui vs Shahid Khan (2015) SCC wherein it was observed that a wife is entitled to enjoy the same status, which she would have otherwise enjoyed in her matrimonial home.
• The Court also referred to the landmark case of Rajnesh vs Neha (2021) SCC wherein it was held that while adjudicating the quantum of maintenance, the status of the parties is of a relevant consideration. It was held that the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance and dependant family members, and his liabilities would be required to be taken into consideration while adjudicating the amount of maintenance.
• Thus, in light of the aforesaid discussion, the Court held that the refusal by the respondent to place the salary slip on the record can allow the Court to draw an adverse inference against the respondent.

2) Failure Of Detaining Authority To Supply Legible Documents Despite Request By Detenu Renders Detention Order Illegal: Delhi HC 

• In the recent judgment given by Hon’ble HC of Delhi, it was held that a detention order passed by the Detaining Authority based on “illegible” copies of documents suffered from excess power exercised by the concerned authority and was liable to be quashed. It further affirmed that failure and non-supply of legible copies of all documents to the detenu, despite request and representation, implies illegal detention and is bad in the eyes of law. 
• In the case, ZAKIR KHAN v. UNION OF INDIA AND ORS. and other connected matters, two writ petitions under article 226 were filed by Zakir Khan referred to as “detenu No. 1” and Sanjeev Kumar referred to as “ detenu No. 2” prayed for quashing of detention orders, both dated 26.11.2021 u/s Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The Court contended that since both the petitioners filed cases under the same question of law and are governed by the same facts, hence the judgment would be given under common order. 
• The Income Tax Department conducted a search and seizure operation at 23 places belonging to detenu No. 1 and people associated with him. Several items such as old and used/refurbished laptops, mobile phones, etc were found which were subjected to investigation and detained by the Customs officers at Kolkata.
• During the search at detenu’s premises in Delhi, certain documents were found stored in the form of files, loose documents, writing pads, diaries, Certificate of Incorporation/Articles of Association pertaining to three Hong Kong-based supplier firms on which the name of the detenu No.1 was mentioned as a nominated person were recovered. All documents relevant to the investigation were detained for further investigations in relation to the suspected undervaluation of imported goods by the firms allegedly controlled/owned by detenu No.1.
• On further search conduct, a relationship between detenu No.1 and detenu No. 2 was established. It was purported that the clearance work of imports made in relation to the firms controlled/owned by detenu No. 1 was handled by detenu No.2. In the search conduct, certain documents were allegedly found stored in the said premises, in the form of files, loose documents, etc. which were purportedly controlled/owned by the detenu No.1. The DRI officers retained the said documents for further investigations.
• Subsequently, the detenus were arrested by officers of the DRI and produced before the Court of CMM (Duty Magistrate), Patiala House Courts, and were remanded in Judicial Custody. Since no criminal prosecution was filed against the detenus in the customs case, the detenus were granted statutory bail in terms of the mandate of the provision of Section 167(2) of the Code of Criminal Procedure.
• Detenus made a representation to the Detaining Authority, saying that a large number of documents furnished to them were illegible and many other documents that had been relied upon and referred to were not furnished, communicated, and/or supplied at all; therefore, demanding legible copies of all of the above, so as to enable them to make an effective representation. The detailed representation was rejected by the Detaining Authority.
• The Hon’ble HC of Delhi held in cases where orders of detention fail on the ground that the subjective satisfaction of the Detaining Authority is vitiated owing to non-application of mind. The protection afforded qua severability of grounds stipulated under the provision of 5A of the COFEPOSA Act is neither attracted nor available, in law. 
• The Court relied on the precedent, Mehrunissa v. the State of Maharashtra, where the Apex Court held that the detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory with respect to the content of the documents. The failure of the detaining authority to supply copies of such documents vitiated the detention and the detenu is entitled to be released and hence gave judgment in favor of the petitioner and against the respondent.