Case Note & Summary
The petitioner, Anil Ambashankar Joshi, husband of the respondent Reena Anil Joshi, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 08.10.2015 passed by the Family Court No.5, Pune. The impugned order rejected the husband's application (Exh.18) seeking to discard the wife's affidavit of evidence filed under Order 18 Rule 4 of the Code of Civil Procedure, 1908 (CPC) in proceedings under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) for maintenance. The parties were married on 12.05.1995 and separated around January 2005. The wife had filed a divorce petition (P.A. No.103 of 2008) and a maintenance application (P.E. No.50 of 2008), along with another petition under the Specific Relief Act. All proceedings were clubbed. The wife filed her affidavit of evidence, which was taken on record, and cross-examination was pending since October 2015. The husband filed Exh.18 to discard the affidavit and direct the wife to lead evidence afresh. The Family Court rejected the application. The High Court held that the affidavit of evidence is valid evidence under Order 18 Rule 4 CPC, which applies to Family Court proceedings. Once the affidavit is taken on record, there is no provision to discard it. The husband had the opportunity to cross-examine the wife, which was pending. The court found no error in the Family Court's order and dismissed the petition, upholding the rejection of the application.
Headnote
A) Criminal Procedure Code - Maintenance Proceedings - Section 125 CrPC - Affidavit Evidence - The husband filed an application to discard the wife's affidavit of evidence filed under Order 18 Rule 4 CPC and direct her to lead evidence in person. The Family Court rejected the application. The High Court held that the affidavit of evidence is valid evidence and once taken on record, there is no provision to discard it. The wife's cross-examination was pending, and the husband could cross-examine her. The petition was dismissed. (Paras 1-6)
B) Civil Procedure Code - Evidence by Affidavit - Order 18 Rule 4 CPC - Applicability to Family Court - The Family Court is governed by the Family Courts Act, 1984, and the CPC applies to proceedings before it. The affidavit of evidence filed under Order 18 Rule 4 CPC is a valid mode of leading evidence. The court cannot discard such evidence merely because the party is a woman or the proceedings are under Section 125 CrPC. (Paras 3-5)
Issue of Consideration
Whether the Family Court was justified in rejecting the application to discard the wife's affidavit evidence and direct her to lead evidence afresh in a Section 125 CrPC maintenance proceeding.
Final Decision
The High Court dismissed the writ petition, upholding the Family Court's order rejecting the husband's application to discard the wife's affidavit evidence. The court held that the affidavit of evidence filed under Order 18 Rule 4 CPC is valid evidence and once taken on record, there is no provision to discard it. The husband had the opportunity to cross-examine the wife, which was pending.
Law Points
- Affidavit of evidence under Order 18 Rule 4 CPC is valid evidence in Section 125 CrPC proceedings
- Family Court has discretion to allow cross-examination
- No provision to discard affidavit evidence once taken on record
Case Details
2016 LawText (BOM) (12) 17
Writ Petition No.4243 of 2015
Shri. Hitesh Vyas i/by Shri. Abhijeet Sarwate for the Petitioner, Shri. Vivek Kantawala a/w Shri. Amey Patil i/by Vivek Kantawala & Co., for the Respondent No.1
Mr. Anil Ambashankar Joshi
Mrs. Reena Anil Joshi, The State of Maharashtra
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging the order of the Family Court rejecting the husband's application to discard the wife's affidavit evidence in maintenance proceedings under Section 125 CrPC.
Remedy Sought
The petitioner husband sought to set aside the Family Court order dated 08.10.2015 and to direct the Family Court to discard the wife's affidavit of evidence and direct her to lead evidence in person.
Filing Reason
The husband filed the application Exh.18 to discard the wife's affidavit of evidence filed under Order 18 Rule 4 CPC, claiming that the affidavit should not be considered as evidence and the wife should be directed to lead evidence afresh.
Previous Decisions
The Family Court No.5, Pune, by order dated 08.10.2015, rejected the husband's application Exh.18.
Issues
Whether the Family Court was justified in rejecting the application to discard the wife's affidavit evidence and direct her to lead evidence afresh in a Section 125 CrPC maintenance proceeding.
Submissions/Arguments
The petitioner husband argued that the wife's affidavit of evidence should be discarded and she should be directed to step into the box and lead her own evidence.
The respondent wife opposed the application, and the Family Court rejected it.
Ratio Decidendi
The affidavit of evidence filed under Order 18 Rule 4 CPC is a valid mode of leading evidence in proceedings before the Family Court, including maintenance proceedings under Section 125 CrPC. Once the affidavit is taken on record, the court cannot discard it; the opposite party has the right to cross-examine the deponent.
Judgment Excerpts
The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 08.10.2015 passed by the Learned Judge of the Family Court5, Pune, by which order, the application Exh.18 which has been filed to discard the evidence sought to be adduced by the Respondent by way of affidavit and direct her to step in the box and lead her own evidence which came to be rejected is taken exception to by way of the above Petition.
The Petitioner husband has filed his written statement. The Court on the basis of the pleadings of the parties has framed issues in all the Petitions.
The Respondent who is the Applicant in so far as the said application is concerned filed her affidavit of evidence as contemplated by Order 18 Rule 4 of the Civil Procedure Code (For short “CPC”). The said affidavit of evidence has been taken on record by the Family Court and an order was passed for cross-examination of the Respondent.
Procedural History
The respondent wife filed a maintenance application under Section 125 CrPC (P.E. No.50 of 2008) in the Family Court, Pune. The wife filed her affidavit of evidence under Order 18 Rule 4 CPC, which was taken on record. The husband filed application Exh.18 to discard the affidavit and direct the wife to lead evidence afresh. The Family Court rejected the application on 08.10.2015. The husband then filed the present writ petition under Article 227 of the Constitution of India before the Bombay High Court.
Acts & Sections
- Code of Criminal Procedure, 1973: 125
- Code of Civil Procedure, 1908: Order 18 Rule 4
- Constitution of India: Article 227
- Family Courts Act, 1984:
- Specific Relief Act, 1963: 7, 38, 39
