Bombay High Court

Shri. Rameshwar Madhavrao ... vs Sau. Pratibha R. Bachkar on 2 September, 2015

Bench: Mridula Bhatkar

                                                                                         WP 3888_2015.doc

Vidya Amin
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 3888 OF 2015




                                                                                                  
         Rameshwar Madhavrao Bachkar                                      ... Petitioner




                                                                          
               Vs.
         Sau. Pratibha R. Bachkar                                         ... Respondent

         Mr. Ashok B. Tajane, Advocate for the petitioner.
         Ms. Neelam Bakshi i/b. Ms. Seema Chettri, Advocate for the respondent.




                                                                         
                            CORAM                        :         MRS.MRIDULA BHATKAR, J.
                            RESERVED ON                  :         AUGUST 12, 2015
                            PRONOUNCED ON                :         SEPTEMBER 2, 2015.




                                                            
         ORDER

Rule. Rule made returnable forthwith. By consent, the Writ Petition

is heard finally at the stage of admission.

2. In this Writ Petitioner, the petitioner/husband has challenged the

order dated 18th March, 2014 and 19th January, 2015. The

respondent/wife has filed the petition bearing no. A-250 of 2013 against

the petitioner/husband under section 9 of the Hindu Marriage Act for

restitution of conjugal rights. She has also filed the petition bearing No. E-

122/2013 under section 125 of Cr. P.C. for grant of maintenance. By the

order dated 18th March, 2014 the learned Judge of the Family Court,

Nashik directed both the parties that common evidence is to be recorded

in Petition No. A-250 of 2013 and the matters can be disposed of by the

common judgment. Thereafter, common evidence was produced by the

respondent/wife at Exhibit 20. At the request of petitioner/husband, the

matter was adjourned and it was fixed on 27 th November, 2014. However,

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the advocate of the petitioner/husband refused to take cross-examination.

So, order of No cross-examination was passed. Then he moved an

application for setting aside order of No Cross. Application Exhibit 34 was

allowed and petitioner/husband was allowed to cross-examine but cost of

Rs.2,000/- was imposed. Again, the petitioner/husband filed Application

Exhibit 35 for recalling the order dated 18th March, 2014 passed by the

Family Court of common recording and common disposal of two petitions.

The learned Judge of the Family Court while rejecting the said Application

on 19th January, 2015 has observed that her predecessor, who retired on

31st August, 2014, has passed the order on 18 th March, 2014 and till then

the petitioner/husband did not move any application before that Judge.

The learned Judge did not find any merit in the matter and therefore,

rejected the Application and directed the parties to proceed with the

matter.

3. The learned counsel Mr. Tajane submitted that the Family Court has

no power to pass the order of common recording of evidence in the

criminal matter and civil matter which are filed in the Family Court. He

submitted that for criminal matters filed under section 125 of Cr. P.C., a

procedure of summons cases under Criminal Procedure Code is required

to be followed and the civil procedure is not applicable to those matters,

therefore, under section 10 of the Family Court Act, the Court has no

power to merge the proceedings. He further submitted that under section

10(3) of the Family Court Act, in the matter of settlement of the parties, the

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Court can adopt its own procedure, however, the civil and criminal matters

cannot be merged, as he loses his right of Appeal if section 125 matter is

clubbed and decided.

4. The learned counsel for the respondent submitted that the

submissions are not in consistent with the legal position under section 10

of the Family Court Act.

5. Section 10(3) of the Family Court Act , 1984 reads as under:

(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.

6. It is true that the procedure adopted while conducting matters under

section 125 is under section 126 of the Code of Civil Procedure. However,

one has to understand that matters under section 125 are not purely

criminal of nature, but proceedings are of quasi civil nature, as issue of

maintenance to wife is involved and therefore, the respondent is not an

accused and statement under section 313 is not recorded while dealing

section 125. So, the proceedings under section 125 are not treated as

purely and strictly criminal proceedings, though the power to issue warrant

is given to the Court. The learned counsel for the petitioner/husband has

not properly interpreted sub-section (3) of Section 10 of Family Court Act.

7. Chapter IV of the Family Court Act, 1984 lays down the procedure

which is to be followed by the Family Court. Section 9 is about the duty of

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the Family Court to make efforts for settlement. Under section 9, the

Family Court shall make efforts in the first instance, wherever it is possible

for settlement between the parties and for that purpose, it can follow such

procedure as it may deem fit. Section 9 is exclusively about the

settlement and section 10 is about the procedure which is to be followed

generally. Under section 10(1) of the Family Court Act, the Family Court

shall be deemed to be a Civil Court and shall have all the powers of such

Court dealing with all the matters except the matters covered under

Chapter IX of the Cr. P.C. for grant of maintenance under section 125 of

the Cr. P.C. Section 10(2) states that for the purpose of conducting the

matters of maintenance under section 125 of Cr. P.C., the provisions of Cr.

P.C. and rules made thereunder shall apply to the proceedings before the

Family Court. It means that the Family Court while dealing with the issue

of maintenance shall follow the procedure under Cr. P.C. which empowers

the Court to issue warrants, pass order of interim maintenance and follow

the procedure under section 126 of Cr. P.C. Hence, the evidence is to be

recorded in the presence of the respondent. However, the power to hear

ex-parte are also given to the Magistrate if the respondent is deliberately

avoiding the service of summons or attendance in Court.

8. Section 10(3) is divided into three parts -

(a) Nothing in sub-sections (1) or (2) shall prevent a Family Court from laying down its own procedure. Hence, the Family Court is free to lay down its own procedure irrespective of Sub- sections (1) and (2);

(b) The procedure can be laid down with a view to arrive at settlement in respect of subject matter of the suit or

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proceedings. This portion is consistent with Section 9 because it speaks about the settlement between the parties;

(c) The procedure can be laid down with a view to arrive at the truth of the facts alleged by the one party and denied by the

other. This relates to disputed facts.

9. The question is that whether part 3 is restricted to only settlements

or whether it is dehors a settlement. The procedure can be laid down to

find out the truth of the facts which are agitated and contested between

the parties. It is to be noted that though there is use of word "or", it is not

to be read conjunctively with the word "settlement" but it is to be read dis-

conjunctively, as the word "at" is used before the words "the truth. The

double use of the word "at" in the sentence disconjuncts the later clause

from the earlier one. The Family Court can lay down its own procedure in

respect of (i) settlement; and (ii) adjudication. Therefore, the

submissions of the learned counsel that the matter under section 125 of

Cr. P.C. and any other Civil Petition filed under the Family Court Act cannot

be tried together, are baseless. A common evidence can be recorded by