Manju Shukla vs Ashok Kumar Shukla

S.C. Mahapatra, J.—This is an appeal u/s 19 of the Family Courts Act, 1984.

Respondent filed a suit in the Court of Munsif for declaration that appellant is not his wife. In the said suit, appellant claimed that she is duly married wife of the respondent. On establishment of Family Court, suit was transferred.

Respondent filed affidavit of witnesses of his case that there was no marriage. Appellant on the other hand has filed affidavit of witnesses and has also filed larger number of documents indicating that she is wife of the respondent. Considering these materials learned Family Court Judge has held that there is no marriage between appellant and the respondent and accordingly, decreed the suit. This appeal has been filed against the said decree.

On perusal of the record, we find that learned Family Court Judge has not followed the procedure laid down under the Family Courts Act for disposal of the suit. u/s 14, provisions of the Evidence Act are attracted. u/s 15 there of oral evidence is to be recorded and the manner of recording of such evidence has also been indicated in the said provision. Evidence of persons which is of a formal character can be introduced in the Court by affidavit as is provided u/s 16 of the Act. We find that the learned Family Court Judge has disposed of the case on the basis of the affidavits and documents. Documents filed, have not been proved as required under the Evidence Act. In such circumstances we are satisfied that procedure as provided in the Family Courts Act not having been followed prejudice has been caused to the parties and there is no fair trial.

In view of our aforesaid discussion, without considering merit of the litigation, we set aside the judgment and remit the suit back to the Family Court Judge for recording evidence of the witnesses whose affidavits have been filed as well as other witnesses, if parties so choose to produce. Parties shall also be given opportunity to prove the documents in accordance with provisions of the Evidence Act which they intend to be produced as evidence.

In the result, the appeal is allowed. Judgment and the decree of the learned Family Court Judge are set aside and the suit is remanded to the Family Court for fresh trial. Both parties are directed to appear in the Family Court on 20th March, 1995, with a copy of this order, on which date learned Family Court Judge shall fix a date for fresh trial. There shall be no order as to costs. Records be transmitted back immediately.