Case Note & Summary
The revision petition arose from an order of the II Additional Principal Judge, Family Court, Bengaluru, dated 3 November 2017, granting maintenance of Rs.5,000 per month to the respondent wife under Section 125 of the Code of Criminal Procedure, 1973. The husband, as petitioner, challenged the order before the Karnataka High Court primarily on the ground that the Family Court had erroneously relied upon affidavit evidence without following the mandatory procedure for recording evidence in summons cases under Sections 126 and 274 CrPC. The respondent wife had filed her petition for maintenance, and both parties had submitted affidavits. The Family Court, after considering the affidavits, passed the maintenance order. The husband contended that Section 126(2) CrPC requires all evidence in such proceedings to be taken in the presence of the opposite party and recorded as per the procedure for summons cases, which does not permit taking evidence solely on affidavit. He placed reliance on ILR 2009 KAR 3728 and ILR 1993 KAR 1857 (Gayathri v. Ramesh). The respondent opposed the revision, arguing that Section 16(2) of the Family Courts Act, 1984, allows the Family Court to consider affidavit evidence, and that Section 126 CrPC applies only to proceedings before a Magistrate, not a Family Court. She relied on an unreported decision in Crl.Revision No.480/2010. The High Court, after hearing both sides, framed the core issue as whether affidavit evidence is permissible in maintenance proceedings under Section 126 CrPC. Analysing Section 126(2), the court noted that all evidence shall be recorded in the manner prescribed for summons cases, and Section 274 CrPC stipulates that in summons cases the Magistrate must make a memorandum of the substance of each witness’s evidence. The court held that the Family Court, by virtue of Section 10(2) of the Family Courts Act, is bound to follow the CrPC procedure. The decision in Gayathri v. Ramesh was directly on point, declaring that the Family Court must adopt the procedure under Section 126 CrPC for recording evidence. The unreported decision cited by the respondent was distinguishable as it dealt with an ex parte situation. The court found that the impugned order had been passed on the basis of affidavits filed by both parties, which constituted a clear violation of the statutory procedure. Consequently, the High Court allowed the revision petition, set aside the Family Court’s order, and directed both parties to appear before the Family Court on 4 June 2019 for fresh recording of evidence in accordance with Sections 126 and 274 CrPC, with an instruction to dispose of the maintenance petition expeditiously.
Headnote
A) Criminal Procedure – Maintenance Proceedings – Evidence by Affidavit – Code of Criminal Procedure, 1973, Sections 125, 126, 274; Family Courts Act, 1984, Sections 7, 10(2), 16(2) – In a petition under Section 125 CrPC before the Family Court, evidence must be recorded in the manner prescribed for summons cases under Sections 126(2) and 274 CrPC, and evidence by way of affidavit is not permissible. The Family Court is bound to follow this procedure by virtue of Section 10(2) of the Family Courts Act, as held in Gayathri v. Ramesh (ILR 1993 KAR 1857). The trial court's order based solely on affidavit evidence was set aside, and the matter was remitted for fresh recording of evidence as per the prescribed procedure. (Paras 6-14)
Issue of Consideration
Whether affidavit evidence is permissible in maintenance proceedings under Section 125 of the Code of Criminal Procedure before Family Court?
Final Decision
The revision petition was allowed. The impugned order dated 03.11.2017 passed by the Family Court was set aside. Both parties directed to appear before the Family Court on 04.06.2019 for fresh recording of evidence in accordance with Sections 126 and 274 CrPC, with a direction to expedite disposal.
Law Points
- Proceedings under Section 125 CrPC before Family Court must follow evidence recording procedure under Sections 126 and 274 CrPC
- affidavit evidence is not permissible as per summons case procedure
- Section 10(2) of Family Courts Act incorporates CrPC procedure.
