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Roshal Lal vs State Of Haryana And Ors on 29 August, 2018

Crl. Revision (F) No. 39 of 2015 -1-

In the High Court of Punjab and Haryana at Chandigarh

Crl. Revision (F) No. 39 of 2015
Date of Decision: 29.8.2018

Roshan Lal ……Petitioner

Versus

State of Haryana and another …..Respondents

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. Pratyaksh Kumar, Advocate
for the petitioner.

Mr. M.S.Yadav, Advocate
for respondent No. 2.

****

ANITA CHAUDHRY, J

This revision is directed against the judgment dated 22.1.2015

passed by the District Judge, Family Court, Gurgaon on the petition filed

under Section 125 Cr.P.C.

The issue for examination in this revision is whether the

husband had the right of cross-examination in the petition filed under

Section 125 Cr.P.C. The Family Court in its order dated 11.4.2014 ordered

that evidence of the parties to be taken on affidavits. It relied upon Shabana

Banu versus Imran Khan reported in 2010(1) RCR (Criminal) 158 to

make that order but the judgment relied upon does not deal with the issue.

Record was called for and has been perused.

Babita by way of her evidence tendered her affidavit Ex. PA in

evidence and introduced some documents and made a statement closing her

evidence. The Court did not give the respondent the right of cross-

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examination. The case was adjourned for respondent’s evidence. The

respondent did not appear on the adjourned hearing and his exemption was

sought and finally when the matter was taken up on 12.1.2015, he moved an

application seeking permission to cross-examine the witness as false

statement had been made by the wife. The following order was passed by

the District Judge, Family Court on 12.1.2015:-

“Today the case is fixed for evidence of the respondent, but
learned counsel for the respondent has moved an application
for seeking permission to cross-examine the witness on the
plea that the petitioner has taken false, fabricated and
concocted grounds. The respondent is being harassed and
hence this application. Learned counsel for the petitioner has
vehemently opposed the application pleading that it is a
delaying tactic. It is observed from the records of the case that
the evidence of the petitioner was recorded on 30.5.2014 and
since then the respondent has availed the third effective
opportunity for today to lead evidence. It has been submitted
by the learned counsel for the respondent that he is notready
for evidence today. The evidence of the petitioner was
recorded in presence of the counsel for the respondent but till
date no such application or prayer had ever been made. No
cogent reason has been given for seeking to cross-examine the
petitioner. The proceedings u/s 125 Cr.P.C. are to be disposed
on the basis of affidavits and in the instant case there is no
reasonable ground for permitting the respondent to cross-
examine the petitioner. The application is accordingly
dismissed. Since the respondent and his counsel are unwilling
and unprepared for evidence, the case is adjourned to
14.1.2015 for evidence of the respondent to be brought at his
own responsibility. Last opportunity is granted.”

The case was then adjourned and the statement of the

respondent was recorded and his evidence was closed. The case was again

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adjourned for arguments. The respondent moved an application again

seeking recall of the petitioner so that he could cross-examine the witness.

The Family Court observed that no request or application for cross-

examination was filed on the date the petitioner (wife) was examined and

the respondent was only delaying the case and dismissed the application and

adjourned the case for final arguments. It finally disposed of the petition

allowing maintenance to the wife.

It would be useful to reproduce Section 10, 15, 16 and 20 of the

Family Courts Act, 1984 (‘Act’ for short) which read as under:-

10. Procedure generally.-

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

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(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.

x x x x x

15. Record of oral evidence. – In suits or proceedings before a
Family Court, it shall not be necessary to record the evidence
of witnesses at length, but the Judge, as the examination of
each witness proceeds, shall, record or cause to be recorded, a
memorandum of the substance of what the witness deposes,
and such memorandum shall be signed by the witness and the
Judge and shall form part of the record.

16. Evidence of formal character on affidavit. – (1) The
evidence of any person where such evidence is of a formal
character, may be given by affidavit and may, subject to all
just exceptions, be read in evidence in any suit or proceeding
before a Family Court. (2) 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.

x x x x x

20. Act to have overriding effect. – The provisions of this Act
shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in
force or in any instrument having effect by virtue of any law
other than this Act.

Section 15 deals with record of oral evidence and provides that

in suits or proceedings before a Family Court, it shall not be necessary to

record the evidence of witnesses at length, but the Judge, can record or

cause to be recorded, a memorandum of substance of what the witness

deposes, and such memorandum has to be signed by the witness and the

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Judge and shall form part of the record.

Further, Section 16 provides that evidence of formal character

can be given by affidavit and can be read in evidence in any suit or

proceeding. Sub-section (2) of Section 16 provides for summoning and

examination of person giving the affidavit, on an application.

An over all analysis of the above provisions reveals that while

provisions of CPC have been made applicable for the purpose of procedure

before the Family Court, Section 15 of the Act enables a Family Court to

record the evidence of witness by way of memorandum of the substance of

what the witness deposes and provides that ‘it shall not be necessary’ to

record the evidence of witnesses at length. The use of expression ‘it shall not

be necessary’ to record the evidence of witnesses at length cannot be read as

a prohibition against recording of evidence at length and it cannot be said

that in case instead of recording the deposition of witnesses by way of

memorandum of the substance, evidence of witness at length has been

recorded, the said procedure would stand vitiated.

It would be relevant to refer to the judgment of the Rajasthan

High Court reported in Sarswati versus Narayan, Civil Writ Petition

No. 6667 of 2015. A writ petition was filed in the High Court challenging

the order passed by the Family Court vide which the application filed by the

wife seeking exclusion of the evidence from record was dismissed. It was a

petition filed under Section 13 of the Hindu Marriage Act filed by the

husband. After the parties had led their evidence the wife filed an

application contending that the evidence of the parties had been produced

on affidavits under Section 15 of the Family Courts Act and evidence could

not be taken on affidavits and those could not be read and should be

excluded from record and the petition should be dismissed for lack of legal
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evidence.

In reply the husband took the stand that the examination-in-

chief had been produced on affidavits and witnesses had been cross-

examined and the evidence had been accepted without an objection and

cross-examination had been conducted under the provisions of the Act and

no objection had been raised earlier and therefore the application should be

dismissed.

In that context the provisions of the Family Courts Act were

considered and the following observations were made:-

“The emphasis laid by learned counsel for the petitioner that
evidence of only formal character can be taken on affidavit
with reference to Section 16 is misplaced. The provisions of
Section 16(1) have been incorporated to apparently take care
of provisions of Section 1 read with Section 3 of the Evidence
Act, 1872,which provides that the said Act does not apply to
affidavits presented to any Court and as held by Hon’ble
Supreme Court in the case of Sudha Devi v. M.P. Narayan :
AIR 1988 SC 1381 that affidavits are not included in the
definition of evidence in Section 3 of the Evidence Act and can
be used in evidence only if the Court permits it to be so used
for sufficient reasons. Even under Sub-section (2) of Section 16
of the Act, on an application of any of the parties, even the
deponents of affidavits produced by way of evidence of formal
character, can be cross-examined, therefore, the submissions
made by learned counsel for the petitioner that it is only the
evidence of formal character, which can be produced by way
of affidavit and not examination in chief qua substantive
evidence pertaining to the suit or proceeding before the Family
Court has apparently no substance.”

The Family Court in the case in hand gave no opportunity of

cross-examination to the husband. It has been seen that in matrimonial

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disputes each party gives exaggerated accounts and it is the duty of the

Court to extract the truth from falsehood.

The duty of the Court is to search for the truth and then do

justice and this is the very object for which the Courts are created. The

Courts have to remove chaff from the grain, to separate falsehood from

truth. Matrimonial litigation begins with parties mounting claims on each

other which often are exaggerated to such an extent that truth and falsehood

become inextricably mixed up and it is difficult to separate them and it

would become more difficult if the right of cross-examination to the witness

is closed. Therefore in matrimonial litigation the family Courts have to take

due care and caution in closing the valuable right to file the written

statement or to lead evidence or the right of cross-examination of any

witness.

No doubt Section 10(3) of the Act does not prevent the Court

from laying down its own procedure but it is for the purposes of arriving at

a settlement for the petitions under Section 125 Cr.P.C. The petitioner filed

application seeking to cross-examine the witness but the Family Court did

not deal with this issue and rejected the prayer made by the husband saying

that there was no reasonable grounds. Section 15 of the Act provides that it

is not necessary to record the evidence of witnesses at length but the Judge

can record a memorandum of substance of what the witnesses depose.

Section 16 provides that evidence of formal character is to be taken on

affidavit.

The provisions of Section 15 and 16 do not render evidence

taken on affidavits to be illegal but a witness has to be subjected to cross-

examination and that right has to be given and cannot be closed.

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The Family Court clearly fell in error in dismissing the

application of the petitioner and disallowing cross-examination. The

Family Court had acted in contravention of provisions of Section 15 of the

Act.

The petition is allowed. The order passed by the Family Court

is set aside. The parties are directed to appear before the Family Court,

Gurugram on 10.9.2018. The Court would give opportunity of cross-

examination to both the sides and then decide the case afresh.

(ANITA CHAUDHRY)
JUDGE
August 29, 2018
Gurpreet

Whether speaking/reasoned : Yes
Whether reportable : Yes

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