WP4175_1_18.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4175 OF 2018

Jagruti Samir Bhatia … Petitioner
Vs.
Sameer @ Samir Girish Bhatia and another … Respondents

Ms Seema Sarnaik and Mr. Ameya Tamhane for Petitioner.
Mr. Yogendra M. Kanchan for Respondent No.1.

CORAM : R. G. KETKAR, J.

DATE : OCTOBER 29, 2018
P.C. :

Heard Ms Sarnaik, learned Counsel for the petitioner and
Mr.Kanchan, learned Counsel for the respondent No.1 at length.

2. Ms Sarnaik seeks leave to delete respondent No.2, it being a
formal party. Leave as prayed for is granted. Amendment shall be
carried out forthwith.

3. This Petition takes exception to the order dated 05.09.2018
passed by the learned Judge, Family Court No.2, Mumbai below
exhibit-1 in Civil Miscellaneous application No.89 of 2015. By that
order, the learned Judge directed the parties to rely only on affidavits
without cross-examination. Rule. Mr. Kanchan waives service for the
respondent. Having regard to the narrow controversy raised in this
Petition as also at the request and by consent of the parties, Rule is made
returnable forthwith and the Petition is taken up for final hearing.

4. Petition No.A-1585 of 2010 was filed by the first respondent,
hereinafter referred to as ‘respondent’, seeking dissolution of marriage
under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (for short
‘Act’). Petition No.E-17 of 2011 was instituted by the petitioner for

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maintenance under Section 125 of the Code of Criminal Procedure,
1973 (for short ‘Cr.P.C.’). By order dated 17.07.2014, the learned trial
Judge partly allowed the Petition for divorce and dissolved marriage
dated 19.06.1999 solemnized between the parties under Section 13(1)(i-

a) of the Act. The learned trial Judge noted that the permanent custody
of elder daughter Esha born on 07.08.2002 has already been crossed
over to the respondent. The permanent custody of younger daughter
Riya born on 04.05.2004 was granted to the respondent with immediate
effect. In so far as the maintenance petition instituted by the petitioner is
concerned, the learned trial Judge directed the respondent to pay
maintenance inclusive of rent @ Rs.40,000/- per month with effect from
01.07.2014 to the petitioner. The respondent was further directed to pay
litigation expenses of Rs.15,000/- to the petitioner and bear his own. The
petitioner is also entitled to access as already agreed and regularly acted
upon i.e. every alternate Saturdays-Sundays with over night stay and
50% vacations and 50% on birthdays of the daughters and the petitioner
herself. Aggrieved by this decision, appeals are instituted by the
petitioner alone in this Court and the said appeals are pending.

5. The petitioner has filed Miscellaneous Application No.89 of 2015
under Section 127 of Cr.P.C. inter alia praying for directing the
respondent to arrange for a permanent accommodation of not less than
one bedroom, hall, kitchen (above 600 sq.ft. carpet area) on an
ownership basis close to the vicinity of Murli Mahal, Bhaudaji X Road
No.10, Near King’s Circle, Matunga, Mumbai (for short ‘said premises’)
or in the alternative, to give possession of one bedroom, hall, kitchen,
toilet of flat No.7 or 8 of the said premises. The petitioner has also
sought maintenance of Rs.60,000/-per month for herself. Pending the
hearing and final disposal of that application, petitioner sought direction
to the respondent to pay Rs.60,000/- as rent per month for leave and
licence accommodation as well as pay for the deposit of leave and

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licence accommodation of the flat situate in the vicinity of the said
premises. During the pendency of this application, petitioner filed
application at exhibit-13 for interim relief. Respondent filed reply
exhibit-14 resisting that application. Respondent also filed
Miscellaneous Application No.10 of 2016 under Section 127 of Cr.P.C.
for reduction of maintenance amount from Rs.40,000/- per month to
Rs.6,500/- per month due to change of circumstances. The learned trial
Judge has framed the issues on 25.04.2017.

6. In the impugned order, the learned trial Judge recorded that
respondent has no objection if the parties rely on affidavits sans without
cross-examination. Counsel for the petitioner however, submitted that
she has no objection to rely on affidavits but she wants to show to the
Court that the documents relied by the respondent are fabricated. She,
therefore, wants to cross-examine the respondent to demonstrate about
his true income and other changed circumstances. By the impugned
order, the learned trial Judge held that application can be decided on
affidavits. Entering into full trial by cross-examination would protract
the matter and delay the justice. Parties were directed to file their
affidavits and affidavit of witnesses and documents. There will be no
cross-examination of parties or witnesses as only issue of changed
circumstances is to be decided. It is against this order, the petitioner has
instituted the present Petition.

7. In support of this Petition, Ms Sarnaik relied upon Sections 125,
126 and 127 of Cr.P.C. Section 126 lays down the procedure to be
followed while dealing with proceedings under Section 125. Section 127
lays down that on proof of a change in the circumstances of any person,
receiving a monthly allowance under Section 125 for the maintenance
or interim maintenance, the Magistrate may make such alteration, as he

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thinks fit. She, therefore, submitted that the alteration can be made only
upon a proof of the change in circumstances. The truth can be elicited
only upon cross-examination of the witnesses. She submitted that the
learned trial Judge was not justified in observing that the application can
be decided on affidavits and entering into full trial by cross-examination
would protract the matter and delay the justice. She submitted that the
respondent has not challenged the order dated 17.07.2014 passed by the
learned trial Judge directing him to pay Rs.40,000/- per month towards
maintenance, inclusive of rent with effect from 01.07.2014. Thus, there
is no question of delaying the trial as observed by the learned trial
Judge.

8. On the other hand, Mr. Kanchan supported the impugned order.
He invited my attention to Section 10 of the Family Court’s Act, 1984.
Sub-section (1) thereof lays down that subject to the other provisions of
this Act and the rules, the provisions of the Code of Civil Procedure,
1908 (for short ‘C.P.C.’) 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 Cr.P.C.] before a Family Court and for the
purposes of the said provisions, a Family Court is deemed to be a civil
court and has all the powers of such court. Sub-section (2) thereof lays
down that the provisions of Cr.P.C. and the rules made thereunder shall
apply to the proceedings under Chapter IX of Cr.P.C. before a Family
Court. Sub-section (3) thereof lays down that nothing in sub-sections (1)
or (2) shall prevent a Family Court from laying down its own procedure
with a view to arriving 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. Thus, under sub-section (3) of Section 10,
Family Court is empowered to lay down its own procedure with a view
to arriving at a settlement in respect of the subject matter of the suit or

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proceedings or at the truth of the facts alleged by the one party and
denied by the other. In the present case, the learned trial Judge thought it
appropriate that the parties could prove their case only by filing
affidavits and not by cross-examining so that the trial is not protracted.
He, therefore, submitted that no fault can be found with that order. In
support of this proposition, he relied upon decision of this Court in
Aniket Subhash Tupe Vs. Piyusha Aniket Tupe, 2018 SCC OnLine
Bom. 601.

9. I have considered the rival submissions advanced by the learned
Counsel appearing for the parties. I have also perused the material on
record. Section 125 of Cr.P.C. in so far as it is relevant for the present
controversy reads thus,
“125. Order for maintenance of wives, children and parents.-
(1) If any person having sufficient means neglects or
refuses to maintain-

(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child,

whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where
such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself
or herself,
a Magistrate of the first class may, upon proof of such
neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate, as
such Magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time
direct:

(emphasis supplied)”

10. Section 126 lays down the procedure. The relevant portion, in so
far as the present controversy is concerned, reads thus,
“126. Procedure.-(1) Proceedings under section 125
may be taken against any person in any district-

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(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 to 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.

(emphasis supplied)”

11. Section 127(1) reads thus,
“127. Alternation in allowance.- (1) On proof of a
change in the circumstances of any person,
receiving, under section 125 a monthly allowance for
the maintenance or interim maintenance, or ordered
under the same section to pay a monthly allowance for
the maintenance, or interim maintenance, to his wife,
child, father or mother, as the case may be, the
Magistrate may make such alteration, as he thinks fit,
in the allowance for the maintenance or the interim
maintenance, as the case may be.

(emphasis supplied)”

12. A perusal of Sections 125, 126 and 127 shows that in order to fix
the interim maintenance, it is necessary for the party to prove neglect or
refusal [Section 125(1)]; Section 126(2) lays down that all evidence to
proceedings under Section 125 shall be taken in the presence of the
person against whom an order for payment of maintenance is proposed
to be made and shall be recorded in the manner prescribed for summons-
cases. Section 127(1) lays down that on proof of a change in the
circumstances of any person, receiving, under section 125 a monthly
allowance for the maintenance or interim maintenance, or ordered under
the same section to pay a monthly allowance for the maintenance, or
interim maintenance, to his wife, child, father or mother, as the case may
be, the Magistrate may make such alteration, as he thinks fit, in the

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allowance for the maintenance or the interim maintenance, as the case
may be. In other words, the only upon a proof of change in
circumstances, the Magistrate is empowered to make alterations in
allowance for maintenance or interim maintenance, as the case may be.

13. Mr. Kanchan relied upon the decision in Aniket Subhash Tupe
(supra). In that case, the question that arose for consideration was
whether Section 28(2) of the Protection of Women from Domestic
Violence Act, 2005 (for short ‘D.V. Act’) enables the Court to permit the
parties to file affidavit of evidence in the proceedings filed under Section
12 of the D.V. Act. After considering the rulings cited before the Court,
in paragraph 29, it was observed that “keeping in mind the aim and
object of the Act and scope of Section 28(2), the Court can deviate from
procedure prescribed under Sub-section (1) of Section 28 read with Rule
6(5) and devise its own procedure, which would include permitting
evidence by say 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”. In my opinion, the finding recorded in
paragraph 29 supports the case of the petitioner herein rather than the
case of the respondent. In my view, the learned trial Judge was, therefore
not justified in permitting parties to file only affidavit in evidence
without cross-examination. It is fundamental principle that cross-
examination is allowed so as to elicit the truth from the witness. It is also
part of the principles of natural justice.

14. In view thereof as also having regard to the fact that the
maintenance is already awarded by the trial Court by order dated
17.07.2014, which order is not stayed by this Court, the reason given by
the learned trial Judge that entering into full trial by cross-examination
would protract the matter and delay the justice, cannot be allowed to
stand. Hence, the impugned order dated 05.09.2018 is set aside thereby

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permitting the parties to cross-examine on the basis of affidavits already
filed.

15. Mr. Kanchan states that the respondent is present in the Court and
assures that within two weeks from today, he will file affidavit of
evidence. Ms Sarnaik states that petitioner has already filed affidavit and
matter was adjourned from 16.02.2018 till 05.09.2018 for her cross-
examination.

16. In view thereof, the learned trial Judge will permit the respondent
to file affidavit of evidence within 2 weeks from today and will permit
the parties to cross-examine each other and witness, if any. Rule is made
absolute in the aforesaid terms with no order as to costs.

(R. G. KETKAR, J.)

Minal Parab

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