Ajai Kumar Verma vs Smt. Malti Verma and Others

K.C. Bhargava, J.—By means of this revision the revisionist has challenged the order dated 2.1.1993 passed by the Principal Judge, Family Court, Lucknow Criminal Case No. 567 of 1992 u/s 125 Cr. P.C. The facts may be briefly stated as under.

Opposite party No. l, namely Srimati Malti Verma, and her minor daughters, Kumari Neha, Kumari Swati and Kumari Ankita, moved an application u/s 125 of he Code of Criminal Procedure for maintenance against the revisionist who is the husband of Srimati Malti Verma. The learned Principal Judge, Family Court, Lucknow sent a notice to the revisionist-husband by means of registered post and this registered post was returned with the endorsement of refusal. The service of the notice upon the revisionist was deemed to be sufficient and the Family Court decided to proceed ex parte. Against this order the revisionist has come up m this revision.

Learned Counsel for the parties have been heard. Learned Counsel for the revisionist has passed this revision on two points. The first point is that the service effected by registered post is not the mode prescribed by the Code of Criminal Procedure and as such this service cannot be deemed to be a proper service. The other point is that affidavit was taken by the Family Court in place of statement of opposite party No. l and after placing reliance on the affidavit the ex parte order has been passed. A perusal of Section 125 of the Code of Criminal Procedure will go to show that an application for maintenance of wife, children and parents is maintainable on one of he four grounds mentioned in this section. Therefore he Magistrate has to proceed upon proof of such neglect or refusal, and order such person to make a monthly allowance for the maintenance of his wife, children or parents. The mode of service has not been indicated in this section but Chapter VI of he Code of Criminal Procedure starting from Section 61 provides for procedure to compel appearance. u/s 61 a summons has to be sent by the Court for service. Section 62 provides for procedure for service of summons by a police officer and the summons has to be served personally on the person summoned by delivering or tendering to him are the duplicates of the summons. Section 64 provides a mode of service when the person summoned cannot be found, it is mentioned in this section that where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates, for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate. Section 65 provide that if service cannot by the exercise of due diligence be effected as provided in Sections 62,63 or 64, the serving officer shall affix one of the duplicates of he summons to some conspicuous part of the house or homestead in which the person summoned ordinarily reside; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summon has been served or order fresh service in such manner as it considers proper. There is no provision in this Chapter for substituted service either by means of registered post or by publication in the newspaper. These modes of service i.e. by registered post or by publication in the newspaper are not recognised by the Code of Criminal Procedure although such a service is possible under the Code of Civil Procedure. As the proceedings have been taken u/s 125 of the Code of Criminal Procedure therefore the service of summons has also to be effected according to the provisions of service contained in the Code of Criminal Procedure. Therefore, it is apparent that the service which has been effected y means of registered post cannot be said to be in accordance with the provisions of the said Code.

A similar question arose in the case of Dhani Ram Vs. State and Another, , wherein this Court held that under the provisions of the Code of Criminal Procedure there is no procedure for effecting service on a party either by registered post or by publication in the newspaper; and the procedure which has been adopted by the Magistrate is wholly unwarranted and therefore the service which was presumed to be sufficient on the person so summoned is without legal sanction. Thus it is held that the service which has been deemed to be sufficient in the present case by the Judge, Family Court, Lucknow by means of registered post is not proper and is not warranted by the Code of Criminal Procedures

The next question raised is about admission of an affidavit in evidence. There is no provision in the Code of Criminal Procedure to admit evidence on the basis of affidavit of a witness who is available. A perusal of the order of the Judge, Family Court, Lucknow goes to show that the evidence of affidavit was admitted and the case was decreed ex parte on the basis of such affidavit. The evidence is to be taken by the Court of the witnesses who are examined before it. Section 126 of the Code of Criminal Procedure, provides procedure for proceedings under Sec.l25,Sub-section (2) of this Section provides that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases. Chapter XX of the Code of Criminal Procedure deals with the trial of summons cases. Section 251 provides that when in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him. Chapter XXIII of the Code of Criminal Procedure provides for evidence in inquiries and trials. Section 273 provides that all evidence taken in the course of the trial or other proceeding shall e taken in the presence of he accused, or, when his personal attendance is dispensed with, in the presence of his pleader. Section 274 provides that in all summons cases tried before a Magistrate, in all inquiries and in all proceedings the Magistrate shall, as the examination of each witness proceeds, make a memorandum the substance of his evidence in the language of he Court. It is the only mode of taking evidence which has been prescribed by the Code of Criminal Procedure according to which the Magistrate has to record the evidence himself in memorandum form. No other mode for taking evidence has been prescribed in the Code of Criminal Procedure. Therefore the Judge Family Court was not authorised to take affidavit in evidence. This cannot be said to be an irregularity as it is not curable. Therefore admission of the affidavit in evidence by the Family Court cannot be said to be accordance with the provisions of law. I he revision is liable to be allowed on both the grounds raised by Learned Counsel for the petitioner.

The revision is allowed/The order dated 2.1.1993 passed by the Principal Judge, Family Court, Lucknow in Criminal Case No. 567 of 1992 u/s 125 Cr.P.C. is set aside. The case is remanded to the Family Court, Lucknow to decide it afresh after giving an opportunity to both the parties to adduce their evidence in accordance with law. The parties are directed to appear before the Family Court, Lucknow on 22nd March, 1994. Let a copy of this order be transmitted to the Family Court, Lucknow before 22nd March, 1994.