Karnataka High Court
Ujwal S/O Manikchand Shaha, vs Bharati W/O Ujwal Shaha, on 6 April, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6 T H DAY OF APRIL 2018
R
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
R.P.F.C No.100134 of 2015
BETWEEN:
SHRI.UJWAL S/O. MANIKCHAND SHAHA,
AGE-42 YEARS, OCC-BUSINESS AND AGRICULTURE,
R/O.PANADARE, TAL-BARAMATI,
DIST-PUNE, MAHARASHTRA STATE.
.........PETITIONER
(BY SRI.VITTHAL S.TELI, ADVOCATE)
AND :
1. SMT.BHARATI W/O.UJWAL SHAHA,
AGE-32 YEARS, OCC-NIL,
R/O.C/O.BASAVANT APPANNA PATIL,
DEVARAJ URS COLONY, BASAVAN KUDACHI,
TAL & DIST-BELAGAVI.
2. KUMARI SAMIKSHA UJWAL SHAH,
AGE-4 YEARS, OCC-NIL,
R/O.C/O.BASAVANT APPANNA PATIL,
DEVARAJ URS COLONY, BASAVAN KUDACHI,
TAL & DIST-BELAGAVI,
SINCE MINOR REPRESENTED MOTHER RESPONDENT NO.1.
.....RESPONDENTS
(BY SRI.SANJAY S.KATAGERI, ADVOCATE FOR R-1)
(RESPONDENT NO.2 IS MINOR R/BY R-1)
2
RPFC.NO.100134/15
THIS R.P.F.C IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURTS ACT, 1984 AGAINST THE JUDGMENT AND ORDER
DATED 01.07.2015 IN CRL. MISC. NO.452 OF 2013, ON THE FILE OF
THE JUDGE, FAMILY COURT, BELAGAVI PARTLY ALLOWING THE
PETITION FILED UNDER SECTION.125 OF CR.P.C.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY THE
COURT MADE THE FOLLOWING:-
ORDER
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.
2. 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. 3 RPFC.NO.100134/15
3. 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.
4. 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. Ev idence of formal character on affidav it.-( 1) The evidence of any person whe re such evidence is of a formal character, may be give n by affidavit and may, subject to all just exceptions , be re ad in evidence in any suit or proceeding be fore a Family Co urt, (2) The Family Court may, if it thinks fit, and shall, on the applicatio n of any o f the parties to the suit or pro ceeding summon and examine 4 RPFC.NO.100134/15 any such person as to the facts contained in his affidavit.
5. 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.
6. 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 Petitio n is as to whether reco urse could be taken to Order 18 Rule 4 of the CPC in the 5 RPFC.NO.100134/15 matter o f filing o f an affidavit of e vide nce in a proceeding under Sectio n 125 of the Cr.P.C. I n so far as Section 125 of the Cr.P.C is conce rne d, the same finds a place in Chapte r IX of the Cr.P.C. The said provisio n is followed by Sectio n 126. In so far as Section 126 of the Cr.P.C is concerne d, the same postulates that all evide nce in such proceedings shall be taken in the presence of the perso n against whom an orde r fo r payment of maintenance is propose d to be made, meaning the re by that the witness wo uld have to depose in the presence of the person against whom mainte nance is so ught. Hence in te rms of Section 126 of the Cr.P.C., the evidence in a proceeding under Section 125 o f Cr.P.C. would have to be recorde d in the manner prescribe d fo r a summons case. In so far as the proceedings before the Family Co urt are concerned, the same are regulated by Section 10 of the Family Co urt's Act........"
8. A plain re ading o f Sub Section ( 2) of Section 10 o f the F amily Court's Act makes it abso lutely clear that the provisions o f the Cr.P.C. or rules made there under, shall apply to the proceedings unde r Chapter IX of that Code be fore a Family Court, If that be so, the procedure as contemplate d in Section 126 and Section 274 of 6 RPFC.NO.100134/15 the Cr.P.C. would have to be ado pte d in so far as evide nce to be re corded in the said Section 125 proceedings are co ncerne d.
9. ............I n so far as the Judgment in Aruna @ Survana's case (supra) is conce rne d, it has been held by the Learne d Single Judge of the Karnataka High Co urt that Section 126( 2) of the Cr.P.C makes it cle ar that all e vidence in res pect of Section 125 of the Cr.P.C. shall have to be recorde d in the manner prescribed for a summons case and that the proce dure prescribed fo r recording of evide nce in summons case as found in Sectio n 274 o f the Cr.P.C would have to be followed."
7. 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. 7 RPFC.NO.100134/15
8. The learned counsel for the Petitioner also banks upon the Division Bench Judgment of this Court in the case of Gay athri V.Ramesh, ILR 1993 KAR 1857; the relevant paragraph No.5 reads as under :
"5. In a procee ding unde r Section 125 of the Co de the e vidence shall be recorded in the manner prescribe d fo r summons case. The re is no pro vision in the Code enabling a Magistrate to take affidavit e vidence in a summons case. Therefo re the pro cedure of taking an affidavit in a summons case is completely unknown to the provisio ns of the Code and evidence has to be recorde d as prescribe d by Section 274 of the Code which relate s to record in summons cases and inquiries."
9. 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 8 RPFC.NO.100134/15 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.
10. 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.
11. The contention of the learned counsel for the Respondent/Claimants that the petition under Section 9 RPFC.NO.100134/15 125 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.
12. 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 10 RPFC.NO.100134/15 by the Court in this case cannot be justified by banking upon Sub Section 3 of Section 10 of the Act.
13. 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 2 n d 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.
14. 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 11 RPFC.NO.100134/15 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 2 n d 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.12 RPFC.NO.100134/15
The parties shall appear before the jurisdictional Family Court on 26.04.2018 and seek instructions from the learned Judge.
Sd/-
JUDGE Ckk