Deelip Kumar vs The State of Rajasthan and Another

Deo Narayan Thanvi, J.—This is a revision petition against the order of the learned family judge, Udaipur dated 05.06.2008 whereby he directed the petitoner to pay a sum of Rs. 800/- per month as maintenance u/s 125 Cr.P.C. from the date of order.

It is contented by the learned Counsel for the petitioner that this order has been passed on the basis of the affidavits filed by the respondent Smt. Anita and placed reliance upon the decision of karnataka high court delivered in the case of Smt. Cliannakha and Ors. v. Mahantappa reported in 2006 (3) CCC 353 (Kar) wherein it has been held that evidence taken on affidavits is not fit into the definition of evidence as defined u/s 3 of the Indian Evidence Act. In the said case, the application u/s 125 Cr.P.C. was also decided on the affidavits. The impugned order in the said case was held to be illegal and the matter was remanded for fresh decision.

The same is the situation in this case. The reason assigned in the said case is with regard to Section 3 of the Evidence Act, wherein evidence has been defined dealing with interpretation clause, which is as under.

Evidence.- "Evidence" means and includes-

(1) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

It states that evidence is either oral or documentary. Oral evidence is statement given in the court and documentary evidence means documents filed in the court including electronic record produced in the court.

That apart, Section 126(2) Cr.P.C. also states as under:

126(2) all evidence to 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 persence of his pleader, and shall be recorded in the manner prescribed for summons cases.

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to hear and determine the case ex parte and any order so made may be se aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think and proper.

Under this provision the proceeding u/s 125 Cr.P.C. shall be taken like summon cases. Summon cases are tried under Chapter 20 of the Cr.P.C. It nowhere says that the evidence be taken on affidavits. After explaining substance of acquisition, plea shall be recorded and if the accused pleaded not guilty, then the Magistrate shall proceed u/s 254 Cr.P.C. by recording evidence as defined under the Indian Evidence Act.

Thus, the trial court has committed illegality resultig into failure of justice by disposing of the application u/s 125 Cr.P.C. on the basis of the affidavits.

Consequently, this revision petition is allowed. The order of the learned Family Judge, Udaipur dated 05.06.2008 is set aside and the case is remanded back to the court concernea for disposal in accordance with law.