Neha Kumari vs Vijay Anand son Of Arjun Modi

Anil Kumar Choudhary, J

Heard the parties.

This Civil Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Article 227 of the Constitution of India with the prayer to quash the order dated 18.08.2025 passed by learned Principal Judge, Family Court, Dhanbad in O.S. Case No.249 of 2023 by which learned Principal Judge has allowed the petition dated 02.08.2025 filed by the plaintiff of the said case; who is the opposite party herein for accepting his evidence, after settlement of issues, as additional evidence and prayer for consequential reliefs has also been made in this civil miscellaneous petition.

The brief fact of the case is that the defendant of the said O.S. Case No.249 of 2023 who is the petitioner herein, was set ex parte in the said case consequent upon failure of her to file the written-statement. When the case was fixed for ex parte evidence, the plaintiff filed the examination-in-chief in shape of affidavit of two witnesses. Subsequently, the said ex parte order was recalled. The defendant- petitioner filed her written-statement and issues were settled. After settlement of the issues, the plaintiff filed a fresh affidavit to be treated as his examination-in-chief and the plaintiff filed a petition to expunge his previous examination-in-chief which was made during the ex parte hearing of the case. The Family Court vide order dated 20.01.2025 expunged the said examination-in-chief on affidavit, which was made during the ex parte hearing of the case. The defendant/petitioner filed C.M.P. No.319 of 2025 in this Court and vide order dated 16.07.2025, a co-ordinate Bench of this Court set aside the said order dated 20.01.2025 passed by learned Additional Principal Judge, Additional Family Court No-II, Dhanbad in the said case and remitted the matter back to learned court for further proceeding in accordance with law and restored the examination-in-chief which was filed in shape of affidavit during the ex parte hearing of the matter.

The learned Family Court considered that the earlier examination-in-chief filed in shape of affidavit dated 17.12.2022 consisted of six (6) pages but the subsequent affidavit in shape of examination-in-chief dated 03.08.2024 consisted ten (10) pages. In the said affidavit dated 03.08.2024, there was repetition of the previous evidence which was mentioned in the said affidavitdated 17.12.2022. So in order to avoid the repetition of the evidence in the earlier affidavit in the subsequent affidavit, learned Principal Judge, Family Court, Dhanbad ordered in the interest of justice and for the just decision of the case that only paragraphs-10 and 11, second part of paragraph-20, paragraphs-23 to 28 and paragraphs-30 to 33 will be treated as additional evidence/supplementary affidavit of evidence and the rest paragraphs of examination-in-chief filed in shape of affidavit dated 03.08.2024 was expunged because of repetition of the facts which was already existing in the examination-in-chief in shape of affidavit dated 17.12.2022 and directed the plaintiff to renumber paragraphs-10 and 11, second part of paragraph-20, paragraphs-23 to 28 and paragraphs-30 to 33 of the examination-in-chief filed in shape of affidavit dated 03.08.2024 to be in continuation from paragraph-1 of the earlier affidavit.

Learned counsel for the petitioner submits that the opposite party has already filed his examination-in-chief in shape of affidavit on 17.12.2022, his subsequent filing of further examination-in-chief in shape of affidavit cannot be permitted more so when the examination- in-chief filed in shape of affidavitdated 03.08.2024, fresh evidence is not permissible in law. Hence, the impugned order dated 18.08.2025 is unjustifiedand untenable in law as a witness cannot be permitted to get himself examined in examination-in-chief twice in a case and two evidences of the same person in the same case are not permissible in law. It is further submitted that the defendant-petitioner cannot be directed by the Family Court to cross-examine his witnesses in respect of the subsequent evidence of the plaintiff filed in shape of examination-in-chief by way of affidavit. Hence, it is submitted that the prayer, as prayed for in the instant C.M.P., be allowed.

Learned counsel for the opposite party on the other hand vehemently opposes the prayer of the petitioner made in the instant C.M.P. and submits that the Family Court Act is a self-contained code. Section 10 (3) of the Family Court Act empowers a Family Court for laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. It is next submitted that Section 14 of the Family Courts Act, empowers a Family Court to receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act which goes to show that the provisions of Indian Evidence Act is not strictly applicable to the proceedings before the Family Court. In support of his contention, learned counsel for the opposite party relies upon the judgment of the Hon'ble Supreme Court of India in the case of Vibhor Garg vs. Neha reported in 2025 INSC 829 paragraph-10.2 of which reads as under:-

"10.2. Section 14 of the FC Act gives a wide discretion to the Family Courts in deciding matrimonial disputes since they can go beyond the strict rules of evidence in terms of relevance and admissibility while admitting any evidence which they think is relevant for the adjudication of the dispute at hand. However, we do not think that adverting to Section 14 of the FC Act is required in the present facts when the Evidence Act itself permits such a communication to be admitted in evidence by way of an exception. The powers under Section 14 of the FC Act would normally be resorted to in a scenario where the Evidence Act creates some prohibition with respect to the relevance or admissibility of any evidence. But if the Family Court is of the opinion that it is expedient to go beyond the procedural technicalities of the Evidence Act for adjudicating the dispute, in such a case, the Family Court is allowed to take that evidence on record, notwithstanding what is stated in the Evidence Act. But the exercise of this extraordinary power under Section 14 of the FC Act is not warranted in this case."

It is next submitted that the undisputed fact remains that initially the defendant/petitioner herein was set ex parte. There was no written- statement filed on behalf of the defendant when the plaintiff filed his examination-in-chief in shape of affidavit on 17.12.2022. After filing of the written-statement by the defendant and settlement of the issues, obviously new facts were introduced and to meet the same it was incumbent upon the plaintiff to put forth some additional evidence. Under such circumstances, the plaintiff ought to have been given an opportunity to adduce additional evidence and rightly so, the plaintiff has been given such an opportunity.The only anomaly is that instead of the plaintiff mentioning his additional evidence in continuation to the paragraphs of the evidence which was already on record, the plaintiff filed the examination-in-chief in shape of affidavit dated 03.08.2024 also incorporating the earlier evidence which was already on record under the impression that the earlier one can be expunged and the subsequent affidavit will be the sole affidavit but the same did not find favour with this Court and the co-ordinate Bench of this Court vide order dated 16.07.2025 passed in C.M.P. No.319 of 2025 ordered that the earlier examination-in-chief filed in shape of affidavitwillremain intact. Under such circumstances, the only option left for the Family Court was to expunge the paragraphs which were repeated in the subsequent affidavit filed in shape of examination-in-chief dated 03.08.2024 which was already mentioned in the earlier examination in chief filed in shape of affidavit dated 17.12.2022. It is next submitted that it is a settled principle of law that a Court is having inherent power in respect of the case records of a court concerned and Family Court has been vested with the additional power of laying down its own procedure as well, under Section 10 (3) of the Family Courts Act. Under such circumstances, no illegality has been committed by learned Principal Judge, Family Court in passing the impugned order. Therefore, it is submitted that this C.M.P., being withoutany merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the undisputed fact remains that the defendant was first set ex parte when the case was pending in the court of Family Court, Koderma. The defendants filed a transfer petition in this Court and subsequently, the case which was originally numbered as O.S. No.82 of 2022, was transferred to the Family Court, Dhanbad and was renumbered as O.S. No.249 of 2023. Thereafter, the ex parte order was recalled. The defendant was given opportunity to file the written-statement. She filed her written-statement. Subsequently, the issues were settled. So, under such circumstances, a right was also accrued to the plaintiff to adduce additional evidence in order to meet the averments made by the defendant in her written-statement. Hence, consequent upon the opportunity being given to the defendant to file her written-statement, the plaintiff was entitled to adduce further evidence by way of further examination-in-chief of the plaintiff as well as his witnesses who were already examined, when the proceeding was going on ex parte and there was no written-statement in record filed on behalf of the defendant, on recall. The evidence in a Civil Court because of the amendment in the procedural law can be recorded by accepting inter alia examination-in-chief in shape of affidavit. When earlier the examination-in-chiefs were recorded in the Court by the presiding officer of the courts concerned, the procedure was when any ex parte order was recalled and the defendant is given an opportunity to file the written-statement then the plaintiffs were also permitted to adduce further evidence in shape of further examination-in-chief by recalling the witnesses. Now, in the present set up since the examination-in-chief is being permitted to be filed in shape of affidavits, the appropriate procedure for recalling a witness for his further cross-examination is by filing a subsequent affidavit which is to be treated as further examination-in-chief on recall of the witness and that has exactly been done but the anomaly is that in the subsequent examination-in-chief, instead of numbering the paragraphs in continuation of the earlier examination-in-chief which was filed in shape of affidavit when the case was running ex parte, a new number has been assigned to the paragraphs of the affidavit starting from Number-1 in the subsequent affidavit and some repetition has also been made which were already there in the earlier affidavit which was filed in examination-in-chief dated 17.12.2022. The same has been set at right by learned Principal Judge, Family Court by expunging the paragraphs which were repeated and which were earlier existing in the said affidavit dated 17.12.2022 and also numbering the paragraphs in continuation. This in the considered opinion of this Court cannot be termed as recording of evidence of the plaintiff or his witness twice as contended by the petitioner.

It is needless to mention that the plaintiff some of whose paragraphs in the said affidavit dated 03.08.2024 has been expunged, has no grievance. There is no rhyme or reason why the defendant can have any grievance against expunging of some of the paragraphs of an affidavit filed in shape of examination-in-chief by the plaintiff which is of course, a further examination in chief of the plaintiff on recall as a witness.

Therefore, this Court do not find any illegality in the impugned order dated 18.08.2025 passed by learned Principal Judge, Family Court, Dhanbad in O.S. Case No.249 of 2023 warranting interference of this Court in exercise of its power under Article 227 of the Constitution of India.

Accordingly, this Civil Miscellaneous Petition, being without any merit, is dismissed.

In view of disposal of the instant Civil Miscellaneous Petition, the interim order dated 15.01.2026, is vacated.

Registry is directed to intimate the Court concerned forthwith.

Let a copy of this judgment along with the Lower Court Records be sent back to the Court concerned by the Registry.