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Surma vs Santra on 17 September, 2018

Crl. Revision (F) No. 182 of 2017 -1-

In the High Court of Punjab and Haryana at Chandigarh

Crl. Revision (F) No. 182 of 2017
Date of Decision: 17.9.2018

Surma ……Petitioner

Versus

Santra …..Respondent

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. R.P.S.Cheema, Advocate
for the petitioner.

Mr. Ravinder Hooda, Advocate
for the respondent.

****

ANITA CHAUDHRY, J

This revision is directed against the judgment dated 4.1.2017

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

under Section 125 Cr.P.C. vide which Rs. 4,000/- per month was allowed as

maintenance to the respondent.

The issue for examination in this revision first is whether the

husband has a right to cross-examine the witness in a petition filed under

Section 125 Cr.P.C. and could a condition be put.

Record was called for and has been perused.

The petitioner here disputes the relationship between the

parties. Santra by way of her evidence tendered her affidavit Ex. PW1/A in

evidence and closed her evidence. No right of cross-examination was given.

The case was adjourned for respondent’s evidence. Surma did not appear on

the adjourned hearings and then he moved an application seeking

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permission to cross-examine the respondent which was allowed by the

Family Court vide order dated 4.10.2016 and permission was granted to

cross-examine the witness with a rider that cross-examination would be

conducted in the presence of the petitioner.

The petitioner here did not appear on the adjourned dates and

right of cross-examination was closed. Thereafter he moved an application

seeking opportunity to cross-examine the wife. The Family Court observed

that the cross-examination was to be conducted in the presence of Surma but

the petitioner (here) did not appear on the adjourned dates and had failed to

comply with the order and it dismissed the application vide order dated

19.12.2016. It finally disposed of the petition allowing maintenance to the

wife.

The wife had moved an application under Section 125 Cr.P.C.

for interim maintenance. The respondent claimed that she is the legally

wedded wife of the petitioner. However, the respondent before the Court

below denied the relationship between them. It was pleaded that marriage

was never solemnized. No document was placed by the applicant to prove

the marriage. The Court below dismissed the application for interim

maintenance vide order dated 23.1.2015 observing that she had failed to

show a prima-facie case in her favour.

It was the case of the applicant that she was the legally wedded

wife of the petitioner and the marriage was solemnized 20 years ago. On the

other hand, the respondent (below) denied the relationship between the

parties and the marriage. Neither the date of marriage was given by the

applicant nor any document was placed on record to prove that she was the

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legally wedded wife of the petitioner.

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.

(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
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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

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

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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

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
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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

initially for cross-examination by the husband. It is the duty of the Court to

extract the truth from falsehood and it is the duty of the Court to search for

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

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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. There was no need to put a rider. The cross-

examination could be conducted by the lawyer.

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 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.

The Family Court clearly fell in error in dismissing the

application of the petitioner and placing a condition while allowing

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,

Rohtak on 15.10.2018. The Court would give opportunity of cross-

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

(ANITA CHAUDHRY)
JUDGE
September 17, 2018
Gurpreet

Whether speaking/reasoned : Yes
Whether reportable : Yes

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