1. Heard Sri Adarsh Kumar, Advocate holding brief of Sri B.N. Rai, learned counsel for the revisionist and Sri R.K. Saxena, learned counsel for the opposite party.
2. This criminal revision under Section 397/401 Cr.P.C. has been preferred against judgment and order dated 31.5.1994 passed by Principal Judge, Family Court, Kanpur Nagar in Case No. 508 of 1983 under Section 125 Cr.P.c. Thereby revisionist Sanjai Shukla was directed to pay maintenance of Rs.350/- per month to his wife Smt. Geeta Shukla from the date of application i.e. 25.8.1993.
3. Learned counsel for the revisionist submitted that impugned order was passed illegally on the basis of evidence given by both parties on affidavits only and the maintenance awarded by the Court concerned from the date of application is wrong; Smt. Geeta Shukla was living in adultery and one daughter was born after desertion.
4. Learned counsel for opposite party Smt. Geeta Devi opposed the contention of counsel for the revisionist.
5. It is admitted fact between the parties that evidence was adduced by both the parties by affidavits only and no cross-examination was done. It was held by this Court in the case of Arvind Kumar vs. Smt. Suman, 1995 All. JIC 441 that evidence of witnesses of fact has to be either recorded by Judge or cause to be recorded although not at length and it is only the evidence of formal witness which can be accepted in the form of affidavit as mentioned in Section 16 of Family Courts Act, 1984. Relevant parts of said judgment are quoted below:-
"4. From the judgment of the Family Court it would be clear that it accepted evidence of the parties in the form of affidavits and on the basis of consideration of those affidavits decided the matter. Under Section 15 of the Family Courts Act, 1984 "In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record."
5. Section 16 of the aforesaid Act lays down:-
"(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."
6. From the above two sections it is clear that the evidence of witnesses of fact has to be recorded either by the Judge himself or caused to be recorded by him and a memorandum of the substance of what the witnesses depose, has to be kept and signed by the witnesses and the Judge. The evidence of a formal character can be taken on affidavit but on the application of any of the parties the Family Court may summon and examine any such person as to the facts contained in his affidavit. It is thus clear that witnesses of fact to be examined by the Family Court. Their evidence cannot be taken on affidavit. The trial Judge committed a patent error in accepting the evidence of factual witnesses on affidavit and then relying upon it while delivering judgment.
7. In view of the above judgment of the Family Court cannot be sustained. The revision has, therefore, to be allowed.
6. It is relevant to reproduce Sections 7(2)(a), 10(3), 14, 15 and 16 of Family Courts Act, 1984 which are quoted below:-
"7. Jurisdiction-(1)....
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX(relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973(2 of 1974)"
"10. Procedure generally-(1)...
(2)..
(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."
"Section 14 Application of Indian Evidence Act, 1872.-A Family Court may 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, 1872 (1 of 1872). -A Family Court may 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, 1872 (1 of 1872)."
"Section 15 Record of oral evidence.-In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. -In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record."
"Section 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. -(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."
7. From perusal of above sections of Family Courts Act, 1984 it is very clear that family Court has power to record the evidence according to summary procedure on examination of each witness. The statement of witness shall be recorded or caused to be recorded in memorandum of substance of what the witness depose as prescribed under Section 15 of the Family Courts Act.
8. Learned counsel for the revisionist also submitted that according to Order XVIII Rule 4 C.P.C., evidence may be recorded on affidavit and provision of Code of Civil Procedure shall also apply in Family Court. Order XVIII Rule 4 C.P.C. is quoted below:-
"4. Recording of evidence.- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court.
(2) The evidence(cross-examination and re-examination) of the witness in attendance, whose evidence(examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it."
9. According to Order XVIII Rule 4 CPC, it is also very clear that Cross-examination of the witnesses to be done either by the Court or by the Commissioner. It is very clear that cross-examination of witnesses is necessary except where it is denied by the party to cross-examine the witnesses.
10. In the backdrop of above law and judgment delivered by this Court, impugned order passed on the basis of affidavits, cannot be sustained and is liable to be quashed. Other points raised by revisionist are irrelevant to discuss at this stage.
11. The revision is allowed. Judgment and order dated 31.5.1994 is hereby quashed and matter is remanded back to the Court concerned to decide the case afresh after giving opportunity to the parties to adduce evidence and cross-examine the witnesses, if advised in the Court, in accordance with law.
12. Parties are directed to appear before the Court concerned on 10.9.2018.
13. Office is directed to transmit copy of this order to the Court concerned within three days.
Order Date :- 23.8.2018 P.P.