EVIDENCE CANNOT BE TAKEN ON AFFIDAVIT IN MAINTENANCE PROCEEDING OR UNDER DV ACT-MP HIGH COURT

Before the Family Court, an application under Section 125, Cr.PC has been filed by the respondents for maintenance. In the said proceedings, the respondents filed their affidavit in evidence and petitioner has been directed to cross-examine on the affidavit. At this stage, petitioner raised an objection in writing that in the proceedings, evidence can not be taken on affidavit, but the respondent should be examined in the Court in the presence of petitioner or his Counsel. Family Court relying on Section 10(3) of the Family Court Act found that the Family Court is having jurisdiction to adopt its own procedure for recording evidence and relying on provisions of Code of Civil Procedure held that the affidavit can be received in evidence and rejected the application of the petitioner. This order is under challenge in this petition.

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Madhya Pradesh High Court

Rama Prasanna Tiwari vs Smt. Ashima And Anr.

Dated : 24 February, 2005

Equivalent citations: 2005 (2) MPHT 192

Author: K Lahoti

ORDER K.K. Lahoti, J.

1. Petitioner has challenged order dated 30-10-2004 passed by the Family Court, Rewa in Case No. 1/2004 by which the Family Court has rejected the application filed by the petitioner under Section 126 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’).

2. Before the Family Court, an application under Section 125, Cr.PC has been filed by the respondents for maintenance. In the said proceedings, the respondents filed their affidavit in evidence and petitioner has been directed to cross-examine on the affidavit. At this stage, petitioner raised an objection in writing that in the proceedings, evidence can not be taken on affidavit, but the respondent should be examined in the Court in the presence of petitioner or his Counsel. Family Court relying on Section 10(3) of the Family Court Act found that the Family Court is having jurisdiction to adopt its own procedure for recording evidence and relying on provisions of Code of Civil Procedure held that the affidavit can be received in evidence and rejected the application of the petitioner. This order is under challenge in this petition.

3. Learned Counsel for petitioner submits that under Sub-section (2) of Section 10 there is specific provision that subject to the other provisions of this Act and the Rules, the provisions of the Code of Criminal Procedure, 1973 or the Rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before the Family Court. Section 125 falls under Chapter IX of the Cr.PC and the procedure envisaged under Section 126, Cr.PC shall apply in the proceedings and not the provisions of Code of Civil Procedure. It is submitted that order passed by the Family Court be set aside and the matter be remitted back to the Family Court to decide the matter in accordance with law.

4. Learned Counsel appearing for respondents supported the order and submitted that in view of Sub-section (3) of Section 10 of the Family Courts Act, the Family Court has rightly adopted the procedure and there is no fault in the procedure. Petitioner shall get the opportunity to cross-examine on the affidavit. This will save the time of the Trial Court and no prejudice shall be caused to the petitioner.

5. To consider the rival contentions of the parties, Section 10 of the Family Courts Act, 1984 may be seen :

“Section 10. Procedure generally.– (1) Subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the rules, the provision of the Code of Criminal Procedure, 1973 or the Rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from 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.”

Aforesaid provisions specifically provide that in the proceedings under Chapter IX of Cr.PC before a Family Court, provisions of Code of Criminal Procedure and the rules made thereunder shall apply. This is specific provision under the Act which provides the procedure for the proceedings under Chapter IX of the Cr.PC. Though Family Courts are vested with the powers to decide the matter under Hindu Marriage Act and other Acts, but so far as proceedings under Chapter IX of the Cr.PC are concerned, there is specific provision to adopt same procedure as envisaged in the Cr.PC. For the proceedings under Section 125 of the Cr.PC, procedure is envisaged under Section 126 of the Cr.PC. For ready reference, Section 126, Cr.PC reads as under :–

“Section 126. Procedure.– (1) Proceedings under Section 125 may be taken against any person in any district–

(a) where he is, or

(b) where he or his wife resides, or

(2) 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-case : Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set 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 m ay think just and proper.

(3) The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just.”

Sub-section (2) of Section 126, Cr.PC specifically 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. In the present case, respondents have sought an order against the petitioner for their maintenance. In these circumstances, evidence has to be recorded in the presence of the petitioner. Affidavit evidence as has been produced by the respondents can not be said to be evidence recorded in the presence of the petitioner. Provisions of Code of Civil Procedure are not applicable for the proceedings under Chapter IX of the Cr.PC. In the circumstances, Family Court ought to have adopted the procedure envisaged under Section 126 of the Cr.PC. In view of the aforesaid provision, until and unless provision is made, the Family Court has to follow the procedure as envisaged under Section 126, Cr.PC for the proceedings under Chapter IX, Cr.PC. The Family Court has committed an error in directing the parties to file affidavit in evidence and further in permitting the other party to cross-examine on affidavit. According to provisions under Section 126, Cr.PC, evidence has to be recorded in the presence of the person against whom an order of maintenance is proposed to be made. Consequently, impugned order passed by the Family Court, Rewa is, hereby, set aside and the Family Court, Rewa is directed to record the evidence as envisaged under Section 126 of the Cr.PC.

No order as to costs.

C.C. as per rules.

K.K. Lahoti, J.

24 February, 2005

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