R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR R.P.F.C. NO.227 OF 2017 BETWEEN:
SRI SOMASHEKARAIAH, S/O LATE PUTTANNA, AGED ABOUT 57 YEARS, R/O MADHAVARA, BEHIND COLONY, NEAR KRISHNA PETTY SHOP, DASANAPURA HOBLI, BENGALURU NORTH. …PETITIONER (BY SRI.NANJUNDA GOWDA, M.R, ADVOCATE) AND:
SMT.PARVATHAMMA, W/O SOMASHEKARAIAH, AGED ABOUT 49 YEARS, VIDYAPEETA POST, KENGERI HOBLI, BENGALURU – 60. ...RESPONDENT (BY SRI.LOKANATH K AND PRADEEP KUMAR R, ADVOCATES) **** THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF THE FAMILY COURT ACT, AGAINST THE ORDER DATED 03.11.2017 PASSED IN C.MISC.NO.271/2013 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 125 OF CR.P.C.
THIS R.P.F.C. COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed for setting aside the order dated 03.11.2017 passed by the II Additional Principal Judge, Family Court, Bengaluru, in Crl.Misc. No.271/2013 and consequentially to dismiss the petition.
2. The facts leading to this petition are that the respondent – wife had filed a petition under Section 125 of the Code of Criminal Procedure before the Family Court seeking maintenance. On hearing both parties, the II Additional Principal Judge, Family Court, Bangalore, passed an order directing the petitioner to pay the maintenance of Rs.5,000/- per month from the date of petition till she deserves to receive it. The respondent shall also pay the arrears of maintenance and shall continue to pay the current and future maintenance amount on or before 10th of every month.
3. Several grounds are urged challenging the legality of the impugned order.
4. The main contention is that the evidence by way of affidavit is not permissible in the maintenance proceedings initiated under Section 125 of Code of Criminal Procedure. The learned counsel for the petitioner would strenuously contend that the evidence by way of affidavit in respect of 125 Cr.P.C. is not in accordance with the procedure prescribed under Section 126 of Cr.P.C. The learned counsel for the petitioner relying on decisions reported in ILR 2009 KAR 3728 and another decision reported in ILR 1993 KAR 1857 submitted that the Family Court has not followed the procedure under Section 125 of Cr.P.C. Thus, the findings given on the basis of the affidavit evidence cannot be sustained. In a proceeding under Section 125 of Cr.P.C., the evidence shall have to be recorded in a manner prescribed for summons case and the procedure of taking an affidavit in a summons case is against the provisions of the Code. Thus, the impugned order is not in accordance with law.
5. Per contra, the learned counsel for the respondent submitted that in view of Section 16(2) of the Family Courts Act, 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. There is no total bar for considering the evidence on affidavit. The impugned order cannot be set aside merely on the ground that the affidavit evidence is considered by the Family Court for passing the order. Section 126 of the Code would come into picture only if a Magistrate were to exercise the jurisdiction and it is the jurisdiction of the Family Court under Section 7 of the Family Courts Act that has been invoked for grant of maintenance and, therefore, there is no scope for this Court to find out whether the proceedings taken by the learned Judge of the Family Court are in accordance with Section 126 of the Code. In support of his contention, he has relied on unreported decision in Crl.Revision No.480/2010.
6. In view of the rival contentions, the main question that requires to be answered is whether the affidavit evidence is permissible in maintenance proceedings under Section 126 of the Code of Criminal Procedure?
7. In order to ascertain the legality of affidavit evidence in maintenance proceedings, it is necessary to refer to the provision of Section 126 of the Code of Criminal Procedure, which reads as under:
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 (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(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-cases:
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 exparte 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 at to payment of costs to the opposite party as the Magistrate may 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.
8. It is pertinent to note that in the present case, the petition was filed before Family Court for maintenance under Section 125 Cr.P.C.
9. In a decision reported in ILR 1993 KAR 1857 in the case of Gayathri vs. Ramesh, it was held as under:
FAMILY COURTS ACT, (Central Act No.66 of 1984) – Section 7 : CRIMINAL PROCEDURE CODE, 1973 (Central Act No.2 of 1974) – Sections 125 & 126 – Grant of Maintenance – In proceeding under Section 125 Family Court bound to follow procedure under Section 126 – Recording of evidence : procedure to be adopted.
When Section 126(2) of the Code prescribes the procedure to be followed regarding recording of evidence in a proceeding initiated under Section 125 thereof and when Section 10(2) of the Act enjoins that the provisions of the Code shall apply to the proceedings under Chapter IX of the Code before the Family Court, it is clear that though the proceeding is initiated before the Family Court and not a Magistrate, in a proceeding under Section 125 of the Code, the Family Court is bound to follow the procedure prescribed in Section 126 of the Code, so far as recording of evidence is concerned. The learned Advocate for the appellant contended that Section 20 of the Act has the over riding effect and therefore Section 126 of the Code is not expected to be followed by the Family Court in a proceeding under Section 125 of the Code, tt may be noticed that by virtue of Section 10(2) of the Act, the provisions of the Code are practically incorporated into the Act so far as the proceedings under Chapter IX of the Act before the Family Court are concerned.
10. A plain reading of sub-Section 2 of Section 126 makes it clear that all evidence in respect of Section 125 of Criminal Procedure Code proceedings shall have to be recorded in the manner prescribed for summons cases. The procedure that is prescribed for recording of evidence in summons case is found in Section 274 of the Criminal Procedure Code. The said Section reads as under:
Section 274. Record in summons-cases and inquiries:
(1) In all summons- cases tried before a Magistrate, in all inquiries under sections 145 to 148 (both inclusive), and in all proceedings under section 446 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of his evidence in the language of the Court: Provided that if the Magistrate is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court.
(2) Such memorandum shall be signed by the Magistrate and shall form part of the record.
11. Thus, the Family Court has to follow the procedure under Section 126 of Cr.P.C. for recording of evidence and the procedure prescribed therein has to be adopted. It is also evident that the proceeding under Section 125 being a summary procedure, the affidavit evidence has to be adduced as required under Section 274 of the Code of Criminal Procedure, which relates to recording of evidence in summons case. There is no separate procedure prescribed for recording evidence before the Family Courts.
12. In the instant case, the impugned order disclose that the affidavit evidence was placed before the Family Court by the respondent – wife. At that point of time, the procedure followed in submitting the affidavit evidence was not objected by the petitioner, namely the husband. The petitioner who is the respondent before the trial court has also filed affidavit evidence. The Family Court has passed the order relying on the affidavit evidence placed by both the parties, which is not in accordance with the provisions of Sections 126 and 274 of the Code of Criminal Procedure. Thus, there is clear violation of the procedure prescribed.
13. The unreported decision relied on by the learned counsel for the respondent pertains to the maintenance proceedings under Sections 125 and 126 of Cr.P.C. In the said case, an exparte order was passed by the trial court. It was challenged by the revision petitioner by filing an application under Section 126(2) Cr.P.C. Under those circumstances, the Court was of the view that since the exparte proceedings under Section 125 Cr.P.C. are quasi-civil proceedings and are summary in nature, therefore, evidence on affidavit can be taken up in exparte as well as contested matters. As such, the observation made in the said decision on the basis of facts involved in the said case does not deal with the aspect of the matter concerned with this case.
14. For the foregoing reasons, the court is of the view that there are valid grounds for setting aside the impugned order. In such an event, both parties may be given an opportunity to place their evidence before the trial court to adduce evidence as per the procedure prescribed under Sections 126 and 274 of the Code of Criminal Procedure.
15. Accordingly, this petition is allowed. The impugned order dated 03.11.2017 passed by the II Additional Principal Judge, Family Court, Bengaluru, in Crl. Misc. No.271/2013, is set aside.
Both parties are directed to appear before the Family Court, Bangalore, on 04.06.2019, without notice being served to them. Further, the Family Court is directed to dispose of the petition expeditiously.
Sd/- JUDGE SJ