Shri Ujwal @APPELLANT@Hash Smt.Bharati and Ors

This Revision Petition lays a challenge to the Judgment and Order dated 01.07.2015 made by Family Court, Belagavi in Respondents’

Cril.Misc.No.452 of 2013, whereby Award of maintenance of Rs.3,000/- per month to the Respondent No.1/wife and Award of maintenance of

Rs.2,000/- per month to the Respondent No.2/daughter have been directed.

The claim for maintenance filed by the Respondents under Section 125 of Cr.P.C was favored by the Family Court by the impugned Judgment and

Order. The Family Court while deciding the claim petition has taken the affidavit evidence of parties. The same is in challenge in this Revision

Petition.

The learned counsel Sri.Vitthal Teli, appearing for the Petitioner/husband contends that, the petition was under Section 125 of Cr.P.C. and therefore

the procedure prescribed by Sub Section 2 of Section 10 of the Family Courts Act, 1984 (for short ‘Act’) ought to have been followed by the

Family Court. The counsel submits that, the relevant provisions of the Cr.P.C applicable would be Sections 125, Section 126 and 274 of Cr.P.C.

The learned counsel for the Petitioner also submits that, Section 16 of the Act provides for affidavit evidence “of any person†who is not a

party to the proceedings. Section 16 of the Act reads as under :

“16. Evidence of formal character on affidavit.-(1) The evidence of any person where such evidence is of a formal character, may be given by

affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court,

(2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such

person as to the facts contained in his affidavit.

The learned counsel for the Petitioner/husband submits that, Sub Section 2 of Section 16 gives a clear indication as to who can tender affidavit

evidence; at whose instance such person can be examined by Court. The person spoken of in Sub Section 1 of Section 16 of the Act, necessarily

excludes parties eo nomine to the matrimonial case. He submits that, any argument to the contrary would amount to rewriting Sub Section 2 which by

necessary implication excludes the parties to the case.

The counsel draws my attention to the Judgment of the Bombay High Court in the case of Anil Ambashankar Joshi v. Reena Anil Joshi and another

in WP.No.4243 of 2015 disposed off on 05.12.2016. The relevant paragraph Nos.7, 8 and 9 of the said Judgment read under :

“7. …… The issue that arises in the above Petition is as to whether recourse could be taken to Order 18 Rule 4 of the CPC in the matter of filing

of an affidavit of evidence in a proceeding under Section 125 of the Cr.P.C. In so far as Section 125 of the Cr.P.C is concerned, the same finds a

place in Chapter IX of the Cr.P.C. The said provision is followed by Section 126. In so far as Section 126 of the Cr.P.C is concerned, the same

postulates 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, meaning thereby that the witness would have to depose in the presence of the person against whom maintenance is sought.

Hence in terms of Section 126 of the Cr.P.C., the evidence in a proceeding under Section 125 of Cr.P.C. would have to be recorded in the manner

prescribed for a summons case. In so far as the proceedings before the Family Court are concerned, the same are regulated by Section 10 of the

Family Court’s Act……..â€​

A plain reading of Sub Section (2) of Section 10 of the Family Court’s Act makes it absolutely clear that the provisions of the Cr.P.C. or rules

made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court, If that be so, the procedure as contemplated in

Section 126 and Section 274 of the Cr.P.C. would have to be adopted in so far as evidence to be recorded in the said Section 125 proceedings are

concerned.

…………In so far as the Judgment in Aruna @ Survana’s case (supra) is concerned, it has been held by the Learned Single Judge of the

Karnataka High Court that Section 126(2) of the Cr.P.C makes it clear that all evidence in respect of Section 125 of the Cr.P.C. shall have to be

recorded in the manner prescribed for a summons case and that the procedure prescribed for recording of evidence in summons case as found in

Section 274 of the Cr.P.C would have to be followed.â€​

In substance the Hon’ble Bombay High Court holds that, in all the matrimonial cases filed under Section 125 of Cr.P.C, the affidavit evidence

of parties cannot be taken. The age-old mode of leading evidence by examination-in-chief followed by cross-examination is the only permissible mode.

The interpretation placed by one High Court on the provisions of a Parliamentary legislation of universal application has to be shown due deference by

this Court too, since there is no jurisprudential justification to differ.

The learned counsel for the Petitioner also banks upon the Division Bench Judgment of this Court in the case of Gayathri V.Ramesh, ILR 1993

KAR 1857; the relevant paragraph No.5 reads as under :

“5. In a proceeding under Section 125 of the Code the evidence shall be recorded in the manner prescribed for summons case. There is no

provision in the Code enabling a Magistrate to take affidavit evidence in a summons case. Therefore the procedure of taking an affidavit in a

summons case is completely unknown to the provisions of the Code and evidence has to be recorded as prescribed by Section 274 of the Code which

relates to record in summons cases and inquiries.â€​

Learned counsel Sri.Sanjay Katageri, appearing for the Respondent/wife and daughter per contra contends that, the Family Court has got abundant

power under Sub Section 3 of Section 10 of the Act to regulate it’s own procedure to be followed in the adjudication of matrimonial causes and

further the C.P.C. itself is amended providing for leading affidavit evidence. He contends that, though the law relating to grant of maintenance is

enacted in the provisions of Section 125 of Cr.P.C, the proceedings under this section are essentially civil in nature, since the end product of the

litigation is neither conviction nor acquittal. The learned counsel also reads the provisions of Sections 14 and 15 of the Family Courts Act, 1984.

I have carefully considered the rival contentions at the bar. If a petition is filed under Section 125 of Cr.P.C then the only permitted mode of

leading evidence of the parties to the case is by speaking from the witness box i.e. by examination-in-chief followed by cross-examination. Other

modes are legally impermissible, as rightly held by the Division Bench of Bombay High Court in the case of Anil Ambashankar Joshi and also by this

Court in the case of Gayathri v. Ramesh. Thus the matter is no longer res integra.

The contention of the learned counsel for the Respondent/Claimants that the petition under Section 125 of Cr.P.C should be treated as the one

under C.P.C. since there is no conviction or acquittal is legally incorrect. Ordinarily, the nature of the proceedings would be determined by looking to

the kind of Court they have been brought in and further the provisions of the enactment which govern or regulate them. If the proceedings are

instituted in the criminal Court and they are governed by the provisions of Cr.P.C, then such proceedings necessarily are and have to be treated as

Criminal Proceedings only, regardless of there outcome, as intended by the Parliament in it’s legislative wisdom.

The contention of the learned counsel for the Respondent that the provisions of Sub-Section 3 of Section 10 of the Act, vest abundant power in the

Family Court to regulate its own procedure does not silence the voice of Sub-Sections 1 and 2 of the Act ; that apart the said provision is the source of

power available to the Family Court to lay down the procedural guidelines in the class of cases. No such guidelines are brought to my notice by the

Bar and therefore the procedure adopted by the Court in this case cannot be justified by banking upon Sub Section 3 of Section 10 of the Act.

The learned counsel for the Respondents lastly contended that, the setting aside of impugned Judgment and Order of maintenance should not

automatically absolve the Petitioner from paying maintenance to the 2nd Respondent/daughter till after the matter now being remanded is disposed off

afresh. There is a sense of wisdom and humanity in this submission. The counsel for the petitioner too stands tall and fairly appreciates the same.

For all the reasons mentioned above I allow this petition in part and make the following:

ORDER

The impugned Judgment and Order made by the Family Court are set aside ; the matter is remanded to the Family Court for disposal afresh after

affording an opportunity to the parties to lead evidence in the manner mentioned above i.e. by entering the witness box;

(ii). The amount deposited by the Petitioner in the Registry of this Court pursuant to interim order made earlier shall be appropriated to the arrears of

maintenance and also the maintenance that would hereafter accrue at the rate of Rs.2,000/-per month in favour of 2nd Respondent/daughter and if the

amount in deposit is in due course exhausted, the Petitioner shall continue to pay the same amount of monthly maintenance, till the remanded matter is

disposed off and subject to result thereof.

(iii). The Registry shall release to the 2nd Respondent/daughter the arrears of maintenance computed at the rate of Rs.2,000/- till date and the residue

if any shall be appropriated to the future maintenance accruing due hereafter.

The parties shall appear before the jurisdictional Family Court on 26.04.2018 and seek instructions from the learned Judge.