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Ajay Gupta vs Sonia Gupta on 30 April, 2020

IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 30.04.2020

+ CRL.REV.P. 523/2019 CRL.M.A. 9437/2019

AJAY GUPTA ….. Petitioner
versus

SONIA GUPTA ….. Respondent

Advocates who appeared in this case:
For the Petitioner : Mr Kanishk Ahuja and Ms Neha Bhatia,
Advocates.
For the Respondent: Mr Shailendra Babbar and Ms Siddhi Mittal,
Advocates along with the respondent in
person.

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT

VIBHU BAKHRU, J

1. The petitioner has filed the present petition, inter alia,
impugning an order dated 14.03.2019 (hereafter the ‘impugned order’)
passed by the learned Principal Judge, Family Courts, Tis Hazari
Courts (the Family Court) in Maintenance Petition No. 142/2014 titled
‘Sonia Gupta v Ajay Gupta’. By the impugned order, the Family
Court, inter alia, rejected the petitioner’s application under Section
126 of the Code of Criminal Procedure, 1973 (hereafter ‘Cr.PC’)
praying that the evidence filed by the respondent by way of an
affidavit (Ex.PW1/A) be struck off and the respondent be directed to

CRL. REV.P. 523/2019 Page 1 of 23
examine herself in accordance with the procedure prescribed under
Cr.PC.

2. The petitioner contends that the proceedings under Section 125
Cr.PC are required to be conducted in accordance with the procedure
prescribed under Section 126 Cr.PC. It is the petitioner’s case that in
terms of sub-section (2) of Section 126 of Cr.PC, all evidence is
required to be taken in presence of the person against whom an order
for payment of maintenance is proposed to be made and is to be
recorded in the manner prescribed for a summons case. Therefore, an
affidavit by way of evidence, in substitution of recording the
examination-in-chief, is not permissible.

3. The limited controversy to be addressed is whether it is open for
the learned Family Court to accept the claimant’s evidence by way of
affidavit.

4. The present controversy arises in the following factual context:

4.1 The respondent filed a petition under Section 125 of the Cr.PC,
being Maintenance Petition No. 142/2014, before the Family Court,
inter alia, seeking maintenance from the petitioner under Section 125
of the Cr.PC. The respondent also filed an application seeking interim
maintenance. On 16.04.2012, the Court considered the said application
and issued notice to the petitioner.

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4.2 The respondent’s application for interim maintenance was
rejected by an order dated 02.03.2015 passed by the learned Family
Court.

4.3 Aggrieved by the same, the respondent preferred a revision
petition before this Court (Crl.Rev. No. 245/2015), which was
allowed. By an order dated 15.03.2017 passed by this Court, the order
dated 02.03.2015 passed by the learned Family Court was set aside
and the matter was remanded to decide afresh in the light of various
decisions.

4.4 In compliance with the said order, the learned Family Court
considered the respondent’s application afresh and rejected the same
by an order dated 22.05.2017. However, on 22.05.2017 the learned
Family Court also directed that “advance copy(ies) of the affidavit/s to
be tendered in evidence on behalf of the petitioner be supplied to
counsel for the respondent [the petitioner herein] before the next
date”.

4.5 On 04.07.2017, the respondent was unwell and the matter was
adjourned to 07.11.2017. On that date (07.11.2017), the matter was
deferred on joint request of counsel for the parties to 20.11.2017 and
thereafter, it was adjourned to 21.11.2017. On that date, the matter
was deferred to 22.11.2017 to explore the possibility of a settlement
between the parties.

CRL. REV.P. 523/2019 Page 3 of 23

4.6 On 22.11.2017, the respondent sought an adjournment, which
was allowed and the matter was listed on 30.11.2017. The Court
granted a last opportunity for recording of the petitioner’s evidence.

4.7 The order dated 30.11.2017 records that examination-in-chief of
PW1, Sonia Gupta, was partly recorded and further examination-in-
chief was deferred for want of original documents. The matter was
thereafter listed on 04.12.2017 but was adjourned on that date.

4.8 Thereafter, the matter was deferred on various occasions as this
Court had, by an order dated 09.01.2018, directed that the matter be
fixed before the Trial Court after the mediation proceedings before
Delhi High Court Mediation and Conciliation Centre, are concluded.

4.9 On 28.05.2018, the Trial Court passed an order awarding
interim maintenance of ₹15,000/- per month in favour of the
respondent. The matter before the Trial Court was listed on several
dates. However, it is not necessary to refer to those proceedings, as
they are not relevant for the purposes of the present petition.

4.10 The petitioner states that in December 2017, the respondent
filed another affidavit. This was in addition to the evidence by way of
affidavit filed earlier.

4.11 On 07.01.2019, the respondent (PW1) was further examined
and at the request of the learned counsel for the petitioner, her cross-
examination was deferred. The learned Family Court listed the matter

CRL. REV.P. 523/2019 Page 4 of 23
on 21.02.2019 for the respondent’s cross-examination as well as
recording of the evidence of the petitioner herein.

4.12 Thereafter, on 09.02.2019, the petitioner filed an application,
which was disposed of by the impugned order. The petitioner
contended that proceedings under Section 125 of the Cr.PC are in the
nature of a criminal trial and in terms of Section 273 of the Cr.PC,
evidence during the course of the trial is required to be taken in the
presence of the accused. According to the petitioner, the respondent’s
evidence was required to be recorded in presence of the petitioner and
could not be accepted by way of an affidavit. The petitioner relied on
the provisions of Section 126 of the Cr.PC in support of his
contention.

4.13 Before the learned Family Court, the petitioner contended that
the affidavit filed by the respondent contained unnecessary details that
were not required for the disposal of the case and, therefore, the
affidavit ought to be rejected. It does not appear that the petitioner
advanced any other contention before the learned Family Court. The
Court considered the above application and partly allowed the same by
directing that the paragraphs of the affidavit of the respondent, which
are not necessary for the purposes of a petition under Section 125 of
the Cr.PC, would not be considered and, consequently, the petitioner
is also not required to cross-examine the respondent on those issues.

Submissions

CRL. REV.P. 523/2019 Page 5 of 23

5. Mr Ahuja, the learned counsel appearing for the petitioner
relied upon the decision of the Andhra Pradesh High Court in V.D.
Solomon v. V. Solomon Mary and Ors.: Criminal Revision Case No.
1865/2002, decided on 13.07.2003; the decision of the High Court of
Karnataka, Gulbarga Bench, in Sunanda and Ors. v. Bharat Naik:
ILR 2011 Karnataka 1040; the decisions of the Bombay High Court
in Anil Ambashankar Joshi v. Reena Anil Joshi and Ors.: Writ
Petition No. 4243/2015, decided on 05.12.2016 and Aniket Subhash
Tupe v. Piyusha Aniket Tupe and Ors.: Writ Petition No. 2938/2017,
decided on 22.03.2018; and the decision of the Karnataka High Court
in Gayathri v. Ramesh: ILR 1993 Karnataka 1857, in support of his
contentions.

6. Mr Babbar, learned counsel appearing for the respondent
countered the submissions made on behalf of the petitioner. He
submitted that proceedings before the Family Court are not in the
nature of criminal proceedings and, therefore, there is no infirmity in
the procedure to accept evidence by way of an affidavit. He relied
upon the decision of the High Court of Karnataka (Dharwad Bench) in
Zaheeda and Ors. v. Rajmohammed: ILR 2019 Karnataka 1141; the
decision of the High Court of Rajasthan at Jodhpur in Saraswati v.
Narayan: S.B. Civil Writ Petition No. 6667/2015, decided on
24.07.2015; the decision of the High Court of Punjab and Haryana in
Surma v. Santra, Crl. Revision (F) No. 182/2017, decided on
17.09.2018; the decision of the Allahabad High Court in Jagdish
Prasad v. IVth Additional Sessions Judge and Ors.: C.M.W.P.

CRL. REV.P. 523/2019 Page 6 of 23

21600/1994, decided on 13.02.1995; and the decision of the Supreme
Court in Vijay Kumar Prasad v. State of Bihar and Ors.: AIR 2004
S.C. 2123.

Reasons and Conclusion

7. Before proceeding further, it would be relevant to refer to
Section 126 of the Cr.PC and the same is set out below:-

“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 ex parte 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 as to payment of costs to the
opposite party as the Magistrate may think just and proper.

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(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. The language of sub-section (2) of Section 126 is unambiguous
and all evidence relating to proceedings under Section 125 of the
Cr.PC is required to be taken in the presence of the person against
whom the order for payment of maintenance is proposed to be made.

9. It is also relevant to refer to Section 273 of the Cr.PC, which
reads as under:

“273. Evidence to be taken in presence of
accused.-Except as otherwise expressly provided, all
evidence taken in the course of the trial or other proceeding
shall be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the presence of his
pleader:

Provided that where the evidence of a woman below
the age of eighteen years who is alleged to have been
subjected to rape or any other sexual offence, is to be
recorded, the court may take appropriate measures to ensure
that such woman is not confronted by the accused while at
the same time ensuring the right of cross-examination of the
accused.

Explanation.-In this section, “accused” includes a
person in relation to whom any proceeding under Chapter
VIII has been commenced under this Code.”

10. As is apparent from the plain language of Section 273 Cr.PC, it
also mandates that except as otherwise expressly provided, all
evidence in the course of the Trial Court or other proceedings is

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required to be taken in presence of the accused or when his/her
attendance is dispensed with, in presence of his/her pleader.

11. In view of the express provisions of Section 126 of the Cr.PC,
there can be no controversy that a Magistrate, while dealing with the
application under Section 125 of the Cr.PC, is required to follow the
procedure as specified in Section 126 of the Cr.PC and all evidence is
required to be taken in presence of the person against whom an order
of maintenance is proposed to be made. However, the proceedings in
the present case are not before a Magistrate but before a Family Court
established under Section 3 of the Family Courts Act, 1984.

12. In terms of sub-section (2) of Section 7 of the Family Courts
Act, 1984 (hereafter ‘the FC Act’), a Family Court would exercise the
jurisdiction, which is exercisable by a Magistrate under Chapter IX of
the Cr.PC captioned “order for maintenance of wife, children and
parents”. The said Chapter includes Sections 125 to 128 of the Cr.PC.

13. By virtue of Section 8(b) of the FC Act a Magistrate is
proscribed from exercising any jurisdiction or power under Chapter IX
of Cr.PC in relation to an area where a Family Court is established.

14. Chapter IV of the FC Act contains provisions relating to
procedure to be followed by the Family Courts. Section 10 of the FC
Act provides for the procedure to be generally followed and is set out
below:

“10. Procedure generally.-(1) Subject to the other
provisions of this Act and the rules, the provisions of the

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Code of Civil Procedure, 1908 (5 of 1908) and of any other
law for the time being in force shall apply to the suits and
proceedings [other than the proceedings under Chapter IX of
the Code of Criminal Procedure, 1973 (2 of 1974)] before a
Family Court and for the purposes of the said provisions of
the Code, a Family Court shall be deemed to be a civil court
and shall have all the powers of such court.

(2) Subject to the other provisions of this Act and the rules,
the provisions of the Code of Criminal Procedure, 1973 (2 of
1974) or the rules made thereunder, shall apply to the
proceedings under Chapter IX of that Code before a Family
Court.

(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.”

15. In terms of sub-section (2) of section 10 FC Act, the provisions
of Cr.PC or the Rules made thereunder, are applicable to the
proceedings under Chapter IX of Cr.PC. However, sub-section (3) of
Section 10 of the FC Act contains a non obstante provision and
expressly provides that nothing in sub-section (1) or sub-section (2) of
Section 10 of the FC Act would prevent a Family Court from laying
down its own procedure, inter alia, with a view to arrive at the truth of
the facts alleged by one party and denied by the other. It is also
relevant to refer to Section 14 of the FC Act, which expressly enables
a Family Court to receive in evidence any report, statement,
documents, information or matter that may, in the opinion of the
Family Court, assist it to deal with the dispute irrespective of whether

CRL. REV.P. 523/2019 Page 10 of 23
such evidence is otherwise relevant or admissible under the Indian
Evidence Act, 1872.

16. Section 16(1) of the FC Act expressly provides that the
evidence of a formal character may be given in an affidavit and may
be read in evidence in any suit or proceedings before a Family Court.
Sub-section (2) of Section 16 of the FC Act also enables the Family
Court to examine any person as to the facts contained in his affidavit.

17. Section 20 of the FC Act enacts a non obstante clause and
provides that provisions of the said Act would have the effect
notwithstanding anything inconsistent contained in any other law for
the time being in force or any instruction having effect by virtue of
any law. Thus, by virtue of Section 20 of the FC Act, the provisions of
the FC Act, have an overriding effect and in case of any repugnancy
between the provisions of the FC Act and any other law, the
provisions of the FC Act are required to be given effect to.

18. In view of the above, the Family Courts are required to follow
the procedure as set out in the FC Act for determining the matters
placed before it notwithstanding the procedure as may be stipulated in
the Cr.PC.

19. Sub-section (3) of Section 10 of the FC Act expressly provides
that a Family Court is not precluded from laying down its own
procedure notwithstanding anything contained in Sub-section (1) or
sub-section (2) of Section 10 of the said Act. Thus, the key question is
whether the width of sub-section (3) of Section 10 should be curtailed

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to conform to the scheme of Sub-section (2) of Section 10 of the FC
Act read with Section 126 of the Cr.PC?

20. Chapter IX of the Cr.PC, which contain provisions for making
an order regarding provision of maintenance and enforcement thereof
have been placed in Cr.PC notwithstanding that such matters are,
essentially, of a civil nature. This is for good reason. The obligation to
ensure that the wife, children and parents are not left destitute is
important from the perspective of social justice and, therefore, cannot
be viewed only as a private lis. But that does not change the essential
nature of the provision. There is no imputation of culpability on a
person against whom an order of maintenance is proposed to be made.
He is not considered as an accused but is merely a respondent to a
claim for maintenance, which in the given circumstances is recognized
as his obligation.

21. In Vijay Kumar Prasad v. State of Bihar and Ors. (supra), the
Supreme Court had referred to Section 125 of the Cr.PC and held as
under:

“The proceedings under this Section are in the nature of
civil proceedings, the remedy is a summary one and the
person seeking that remedy as we have pointed out, is
ordinarily a helpless person. So that words should be liberally
construed without doing any violence to the language.”

22. It is essential to bear the aforesaid in mind while determining
the question whether a Family Court can adopt a procedure in variance
with the procedure for taking evidence as is prescribed under Section
126 Cr.PC read with Section 273 of the Cr.PC.

CRL. REV.P. 523/2019 Page 12 of 23

23. In Gayathri v. Ramesh (supra), the Karnataka High Court had
reasoned that there was no provision in Cr.PC enabling a Magistrate to
take an affidavit as evidence in a summons case and such procedure
was completely unknown to the provisions of Cr.PC. The Court was
also of the view that provisions of Section 126 Cr.PC are required to
be followed as they stand incorporated in the FC Act by virtue of sub-
section (2) of Section 10 of the said Act. Undisputedly, the Family
Courts can follow the procedure as prescribed under Section 126 of
the Cr.PC or take evidence as is required to be done in a summons
case because the provisions of Section 126 Cr.PC are applicable to the
proceedings under Chapter IX of the Cr.PC before the Family Court.
But the question, essentially, is whether the court can depart from that
procedure or is otherwise bound to follow the same.

24. This Court is of the view that the answer to the aforesaid
question lies in examining the width of the non obstante clause as
contained in sub-section (3) of Section 10 of the Family Courts Act.
Considering that the proceedings before a Family Court are not
criminal in nature, there would be little rationale in insisting that it is
mandatory to follow the said procedure. Clearly, it is unnecessary to
fetter the discretion of the Family Court to adopt an apposite
procedure, by insisting that the procedure as stipulated in Cr.PC be
followed.

25. At this stage, it would also be necessary to refer to the statement
of objects and reasons for enacting the FC Act. The relevant extract is
set out below:

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“Several associations of women, other organizations and
individuals have urged, from time to time, that Family
Courts be set up for the settlement of family disputes, where
emphasis should be laid on conciliation and achieving
socially desirable results and adherence to rigid rules or
procedure and evidence should be eliminated. The Law
Commission in its 59th report (1974) had also stressed that
in dealing with disputes concerning the family the court
ought to adopt an approach radically different from that
adopted in ordinary civil proceedings and that it should
make reasonable efforts at settlement before the
commencement of the trial.”

26. The statement of objects and reasons for enacting the FC Act,
also indicates that the Act also seeks “simplify the rules of evidence
and procedure so as to enable the Family Court to deal effectively
with a dispute”.

27. If the provisions of Chapter IV of the FC Act are read bearing
the aforesaid in mind, it would be at once clear that sub-section (3) of
Section 10 of the FC Act must be read in an expansive manner and a
Family Court would not be precluded from laying down a procedure,
which is in variance with the procedures prescribed under the Cr.PC,
to deal with the subject matter before it.

28. It was contended on behalf of the petitioner that provisions of
Section 10 must be read in conjunction with the provisions of Section
16 of the FC. Since Section 16 of the Family Court Act expressly
provides that evidence of a formal character can be taken on affidavit,
it would imply that evidence, which is not of a formal character, must
not be accepted by way of an affidavit.

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29. This Court is not persuaded to accept the aforesaid contention.
A closer examination of the Scheme of Section 10 of Chapter IV of
the FC Act clearly indicates that the Family Court is required to
evolve a procedure to effectively address the issues placed before it
and has been vested with a wide discretion for the aforesaid purpose.

30. Section 16 of the FC Act is merely an enabling provision, which
expressly enables the Family Courts to accept evidence of formal
character on an affidavit but that does not imply that the Family Court
is otherwise precluded from accepting other evidence on affidavit.
Section 16 of the FC Act cannot be read in isolation and must be
understood in the context of other Sections under Chapter IV of the
FC Act. In terms of Section (1) of Section 9 of the FC Act, a Family
Court is required to endeavour to assist and persuade the parties in
arriving at a settlement in respect of a subject matter of the suit or
proceedings instituted before it. For this purpose, the Family court
may, subject to any rules made by the High Court, follow “such
procedure as it deems fit.”

31. Sub-section (1) and sub-section (2) of Section 10 of the FC Act
provides that provisions of Code of Civil Procedure would apply to
suits and proceedings – other than proceedings under Chapter IX of
Cr.PC – before the Family Court and provisions of Cr.PC shall apply
for proceedings under Chapter IX of Cr.PC. However, sub-section (3)
of Section 10 of the Act contains the non obstante clause and
expressly provides that nothing contained in sub-section (1) and sub-
section (2) of Section 10 of the FC Act would prevent the Family

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Court from laying down its own procedure with the view to arrive at a
settlement in regard to the subject matter of the suit or proceedings or
at the truth of the facts alleged by one party and denied by the other.
Sub-section (1) of Section 9 and sub-section (3) of Section 10 if the
FC Act underscore the substratal scheme that confers the Family Court
with a wide discretion to evolve its own procedure to effectively
address the matters placed before it. This is clearly apparent from
other provisions of Chapter IV of the FC Act as well.

32. Section 12 of the FC Act entitles the Family Court to seek
assistance of medical experts or other persons as the Court may think
fit, for the purposes of discharging its functions under the FC Act.
This is a clear departure from the normal procedure of recording
expert evidence. The scope of Section 12 of the FC Act is much wider
and the Family Court can take assistance of medical experts and other
persons in any manner as it deems fit.

33. Section 13 of the Act contains a non obstante clause and
provides that no party to a suit or proceedings would be entitled as a
matter of right to be represented by a legal practitioner. However, the
proviso enables the Family Court to seek assistance of a legal expert
as an amicus curiae if the Court considers it necessary to do it in the
interest of justice. As is apparent from the plain language of Section
13 of the FC Act, it confers a wide discretion on the Family Court not
only to permit (on deny) the parties the assistance of a legal
practitioner but also to independently seek such assistance as it deems
necessary.

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34. Section 14 of the FC Act is also couched in very wide terms. It
enables the Family Court to receive in evidence any report, statement,
documents, information or matter that may in its opinion assist it to
deal effectively with the dispute. This is irrespective of whether such
evidence is relevant or admissible under the Indian Evidence Act,
1872. This is in conformity with the scheme of conferring power on
the Family Court to evolve such procedure as is necessary to
effectively discharge its functions.

35. Section 15 of the FC Act provides that it would not be
necessary to record evidence of witnesses at length but the judge shall
record a memorandum of substance of what the witness has deposed.
The import of Section 15 is not that the judge must record a
memorandum of substance in every case. Section 15 is an enabling
provision, which makes it explicitly clear that it is not necessary for
oral testimony to be recorded at length and the Court has an option of
hearing the testimony of the witness and recording the substance of
his/her testimony.

36. The provisions of Section 16 of the FC Act must be considered
in the light of the scheme of the other provisions of chapter IV of the
FC Act. Therefore, it must be construed as enabling the Family Court
to accept formal evidence by way of affidavit and not limiting the
discretion of the Court to evolve its own procedure including
accepting evidence, which is otherwise not of a formal character, on
affidavit.

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37. The decision of the High Court of Mysore in Gurunath Rao v.
Venu Bai: Manu/KA/0153/1968 does not further the case of the
petitioner. The said decision was rendered under Section 488 of the
Cr.PC (New Section 125 of the Cr.PC) as applicable to the
proceedings before a Munsif Magistrate. The said decision was not in
the context with the FC Act; in fact, it was rendered much prior to its
enactment.

38. The reliance placed by the petitioner on the decision of the
Bombay High Court in Aniket Subhash Tupe v. Piyusha Aniket Tupe
and Ors.: 2018 Cri.LJ 3316, is misplaced. This court is of the view
that the said decision does not support the stand of the respondent but
quite to the contrary.

39. The decision in Ankit Subhash Tupe’s case was rendered in the
context of the Protection of Women from the Domestic Violence Act,
2005 (hereafter ‘DV Act’). The question that fell for consideration of
the Court was whether an applicant, who had filed an application
under Section 12 of the DV Act, could be permitted to file an affidavit
in evidence.

40. The petitioner (husband) had relied on the provisions of Section
28(1) of the DV Act and contended that the proceedings under the DV
Act were to be dealt in the same manner as laid down under Section
125 of the Cr.PC: the evidence in the proceedings was required to be
taken in the presence of a person against whom an order is proposed to
be made and was required to be recorded in the manner as prescribed
in the case of summons case. The petitioner therein also relied on Sub-

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rule (5) of Rule 6 of the Protection of Women from Domestic
Violence Rules, 2006, which expressly provided that “applications
under Section 12 shall be dealt with and the orders enforced in the
same manner laid down under Section 125 of the Cr.PC, 1973 (2 of
1974)”.

41. It would also be relevant to refer to Section 28 of the DV Act
and the same is set out below:

“28 Procedure.-(1) Save as otherwise provided in this
Act, all proceedings under Section 12, 18, 19, 20, 21, 22 and
23 and offences under Section 31 shall be governed by the
provisions of the Code of Criminal Procedure, 1973 (2 of
1974)

(2) Nothing in sub-section (1) shall prevent the court
from laying down its own procedure for disposal of an
application under Section 12 or under sub-section (2) of
section 23.”

42. The Bombay High Court upheld the decision of the Magistrate
to accept evidence by way of an affidavit and held as under:

“19. The question in the instant case is whether section
28(2) of the D.V. Act enables the court to permit the parties
to file affidavit-in-evidence in the proceedings filed under
Section 12 of the Domestic Violence Act. A cumulative
reading of Sub-section (1) of Section 28 r/w. Sub Rule (5)
of Rule 6 indicates that in deciding the application under
Section 12, the Court has to follow the procedure prescribed
under Section 126 of the Cr.P.C. and thus, record evidence
in presence of the parties. It is however to be noted that Sub-
section (2) of Section 28 clearly provides that-“Nothing in
Sub-section (1) shall prevent the Court from laying down its
own procedure for disposal of an application under Section
12 or under Sub-section (2) of Section 23”. The opening

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words of Sub-section (2) of Section 28 viz.-“Nothing in
Sub-section (1) shall prevent the Court” clearly indicate that
notwithstanding the procedure prescribed in 28(1) r/w. Rule
6(5) the Court is empowered to lay down its own procedure
in deciding the application under Section 12 or 23(2) of the
D.V. Act.

xxxx xxxx xxxx

29. Thus, keeping in mind the aim and object of the Act
and scope of Section 28(2), in my considered view the Court
can deviate from procedure prescribed under Sub-section (1)
of Section 28 r/w. Rule 6(5) and devise its own procedure,
which would include permitting evidence by way of an
affidavit. In other words, the court in its discretion can allow
evidence on affidavit and permit cross examination to test
veracity of the evidence.”

43. The Bombay High Court also referred to a decision of the
Karnataka High Court in Sri K. Manjunath Reddy v. Smt. Latha
A.C.: Criminal Petition No. 1726/2016, wherein the Karnataka High
Court held as under:

“3. Having regard to the object of and the scope of the
legislation, the prescription of such enabling provision is
obviously not to cramp the style of the court which requires
to address issues with some expedition. Therefore, the
section providing that the court can form its own procedure,
would also over-ride sub-section (1) of Section 28 to rule
6(5) of the Rules as well.

4. There is no illegality, as the court in exercise of its
inherent power while prescribing the procedure for disposal
of the application, would even permit evidence by way of an
affidavit in such cases. And where the deponent would be
available for cross-examination to test the veracity of the

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evidence, there is no miscarriage of justice or other illegality
in such a procedure being adopted.”

44. A similar view was expressed by the Patna High Court in
Manish Kumar Soni and Ors. V. State of Bihar and Anr.:
Manu/BH/0919/2015, wherein the Patna High Court had observed as
under:

“27. Hence, though the provision under Section 28(1) of
the Act stipulates that the proceeding under Section 12 of
the Act shall be governed by the provisions of the Code of
Criminal Procedure, but the same is directory in nature and
any departure from the provisions of Code of Criminal
Procedure will not vitiate the proceeding initiated under
Section 12 of the Act.”

45. It is thus clear that the decision of the Bombay High Court in
Aniket Subhash Tupe v. Piyusha Aniket Tupe and Ors. (supra) does
not in any manner support the case of the petitioner. On the contrary,
the decision supports the interpretation that the Family Court can
deviate from the prescribed procedure and devise its own procedure
considering the objects of the Act.

46. In Zaheeda and Ors. V. Rajmohammed (supra), the Karnataka
High Court rejected the contention that a Family Court cannot accept
an affidavit by way of evidence as examination-in-chief. The Court
did not follow the decision of its division Bench in Gayathri v.
Ramesh (supra) as it held that the said decision was rendered on the
basis that the proceedings before the court were in the nature of
criminal proceedings and therefore Cr.PC and Rules made thereunder
were applicable to the proceedings. The Court held that the said

CRL. REV.P. 523/2019 Page 21 of 23
decision was rendered prior to the decisions of the Supreme Court in
Badshah v. Sou. Urmila Badshah Godse and Anr.: (2014) 1 SCC
188; and Iqbal Bano v. State of U.P. and Anr.: (2007) 6 SCC 785,
wherein the Supreme Court had expressly held that the proceedings
under Section 125 of the Cr.PC are civil in nature.

47. In Jagdish Prasad v. IVth Additional Sessions Judge (supra),
the Allahabad High Court held as under:

“….There is no illegality if the learned Magistrate either
directs or permits the applicant or any witness to file an
affidavit in proof of the facts contained in the application
under Section 125 of the Cr.PC. If the opposite party
appears he can have the right of cross examination of the
deponent in respect of the averments made in the affidavit.
But if he does not appear, there is no illegality in relying
upon the affidavit as the evidence.”

48. In Sunanda and Ors. v. Bharat Naik (supra), the Karnataka
High Court had followed the decision of its Division Bench in
Gayathri v. Ramesh (supra) and held that the procedure under Section
126 of the Cr.PC was required to be followed. In Anil Ambashankar
Joshi v. Reena Anil Joshi and Ors. (supra), the Bombay High Court
also referred to the decision in Gayathri v. Ramesh (supra) and held
that the weight of judicial pronouncements was in favour of the
procedure under Section 126 of the Cr.PC being followed.

49. This Court is, with much respect, unable to concur with the said
view.

CRL. REV.P. 523/2019 Page 22 of 23

50. In view of the above, this Court finds no infirmity with the
decision of the Family Court in accepting evidence by way of an
affidavit; permitting the respondent to tender the same in her
examination-in-chief; and providing an opportunity to the petitioner to
cross-examine the respondent.

51. The petition is, accordingly, dismissed. The pending application
is also disposed of.

VIBHU BAKHRU, J
April 30, 2020
RK

CRL. REV.P. 523/2019 Page 23 of 23

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