Bombay High Court
Anil Ambashankar Joshi vs Reena Anil Joshi And Anr on 5 December, 2016
Bench: R.M. Savant
(16)-WP-4243-15.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4243 OF 2015
Mr. Anil Ambashankar Joshi, ]
Age: 49 years, Occu : Business, ]
R/At: 33B, Arcade Towers, Yamunanagar, ]
Oshiwara, Andheri (W), Mumbai. ]..Petitioner
Versus
1. Mrs. Reena Anil Joshi, ]
Age: 46 years, Occu: Business, ]
Pune-411 040.
R/At: P/A,17, Utopia, Wanowrie ]
]
2. The State of Maharashtra ]..Respondents
Shri. Hitesh Vyas i/by Shri. Abhijeet Sarwate for the Petitioner.
Shri. Vivek Kantawala a/w Shri. Amey Patil i/by Vivek Kantawala &
Co., for the Respondent No.1.
CORAM : R. M. SAVANT, J.
DATE : 5th DECEMBER, 2016
ORAL JUDGMENT
1 Rule. Having regard to the nature of the challenge raised
made returnable forthwith and heard.
2 The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the order dated 08.10.2015
passed by the Learned Judge of the Family Court-5, Pune, by which order,
the application Exh.18 which has been filed to discard the evidence
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sought to be adduced by the Respondent by way of affidavit and direct
her to step in the box and lead her own evidence which came to be
rejected is taken exception to by way of the above Petition.
3 It is not necessary to burden this order with unnecessary
details. Suffice it would be to state that the impugned order has arisen
out the proceedings filed under Section 125 of the Criminal Procedure
Code (For short "Cr.P.C.")by the Respondent. The Petitioner and the
Respondent were married on 12.05.1995 and in around January 2005
they started living separately on account of the estrangement between
them. The Petitioner is the husband and the Respondent is the wife. The
Respondent filed Petition for divorce on the grounds mentioned therein.
The said Petition was numbered as P. A. No.103 of 2008 and is pending
adjudication in the Family Court, Pune. The Respondent filed an
application under Section 125 of the Cr.P.C. seeking maintenance from
the husband. It seems that the Respondent had also filed a Petition under
Section 7, 38 and 39 of the Specific Relief Act read with provisions of the
Family Court Act bearing P. B. No.27 of 2008. It seems that all the
proceedings between the parties were clubbed together and were to be
tried simultaneously. The Petitioner husband has filed his written
statement. The Court on the basis of the pleadings of the parties has
framed issues in all the Petitions. It appears that in so far as the
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application under Section 125 of the Cr.P.C. is concerned, which is P. E.
No.50 of 2008, the Respondent who is the Applicant in so far as the said
application is concerned filed her affidavit of evidence as contemplated
by Order 18 Rule 4 of the Civil Procedure Code (For short "CPC"). The
said affidavit of evidence has been taken on record by the Family Court
and an order was passed for cross-examination of the Respondent. It
seems that the cross-examination has been pending since October 2015.
In the said application, the Petitioner filed the instant application Exh.18
praying that the Family Court discard the evidence of the Respondent
filed through the medium of the affidavit of evidence and direct her to
step in the witness box and lead her own evidence. The said application
was replied to on behalf of the Respondent wife. In the reply, it was
contended by her that in terms of the permission granted by the Family
Court, she has filed her affidavit of evidence and therefore sought
dismissal of the said application. The Learned Judge of the Family Court-
5, Pune has by the impugned order dated 08.10.2015 rejected the said
application.
4 The gist of the reasoning of the Learned Judge is that in
terms of Order 18 Rule 4(1) of the CPC, it is mandatory on the part of
every witness to lead evidence by way of an affidavit and therefore
cannot be compelled to lead oral evidence by entering into the witness
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box. It is further held by the Learned Judge that the Respondent having
already filed her affidavit of examination-in-chief as per Order 18 of the
CPC, if the instant application Exh.18 is dismissed, no loss would be
caused to the Respondent because he has a right to cross-examine the
Petitioner. The Learned Judge has accordingly rejected the said
application Exh.18. It is the said order dated 08.10.2015 which is taken
exception to by way of the above Petition.
Heard the Learned Counsel for the parties. The principal
contention of the Learned Counsel for the Petitioner is that since an
application filed under Section 125 of the Cr.P.C. is triable as a summons
case, the procedure contemplated for a summons case is required to be
followed by the Learned Judge of the Family Court. The Learned Counsel
for the Petitioner drew this Court's attention to Sections 125 and 126 of
the Cr.P.C. as also Section 10 of the Family Court's Act. The Learned
Counsel in support of the said contention placed reliance on the
judgment of a Learned Single of the Karnataka High Court reported in
2010(1) DMC 704 in the matter of Aruna @ Suvarna and another Vs.
Marilingappa, the judgment of a Learned Single Judge of the Madhya
Pradesh High Court reported in LAWS(MPH)-2005-2-46 in the matter of
Rama Prasanna Tiwari Vs. Ashima, the Division Bench judgment of the
Karnataka High Court reported in 1993(2) DMC 197 in the matter of
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Gayithri Vs. Ramesh and the judgment of a Learned Single Judge of this
Court reported in 2003(1) DMC 580 in the matter of Vinod Vs. Chhaya.
Relying upon the said judgments, it was the submission of the Learned
Counsel that the procedure of permitting the witness to lead evidence by
filing an affidavit of evidence is unknown in so far as Chapter IX of the
Cr.P.C. is concerned.
6 Per contra, the Learned Counsel appearing on behalf of the
Respondent Shri. Vivek Kantawala would seek to support the impugned
order. It was the submission of the Learned Counsel that having regard to
the fact that the proceedings are clubbed together, that the Learned
Judge of the Family Court permitted the Respondent to lead her evidence
by filing affidavit of evidence. The Learned Counsel would support the
impugned order on the touchstone of Section 10(3) of the Family Court's
Act, by which provision according to the Learned Counsel the Family
Court is having the power to adopt its own procedure.
7 Having heard the Learned Counsel for the parties, I have
considered the rival contentions. As indicated above, the issue that arises
in the above Petition is as to whether recourse could be taken to Order 18
Rule 4 of the CPC in the matter of filing of an affidavit of evidence in a
proceeding under Section 125 of the Cr.P.C. In so far as Section 125 of the
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Cr.P.C. is concerned, the same finds a place in Chapter IX of the Cr.P.C.
The said provision is followed by Section 126. In so far as Section 126 of
the Cr.P.C. is concerned, the same postulates that 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. Meaning
thereby that the witness would have to depose in the presence of the
person against whom maintenance is sought. Hence in terms of Section
126 of the Cr.P.C., the evidence in a proceeding under Section 125 of
Cr.P.C. would have to be recorded in the manner prescribed for a
summons case. In so far as the proceedings before the Family Court are
concerned, the same are regulated by Section 10 of the Family Court's Act
which for the sake of ready reference is reproduced hereinunder :-
"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 to 1908) and of any other
law for the time being in force all 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 (X 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 proeedings or at the truth
of the facts alleged by the one part and denied by the
other."
8 A reading of Sub Section (2) of Section 10 of the Family
Court's Act makes it absolutely clear that the provisions of the Cr.P.C. or
rules made thereunder, shall apply to the proceedings under Chapter IX
of that Code before a Family Court. If that be so, the procedure as
contemplated in Section 126 and Section 274 of the Cr.P.C. would have to
be adopted in so far as evidence to be recorded in the said Section 125
proceedings are concerned.
9 Now, coming to the judgments on which reliance has been
placed by the Learned Counsel for the Petitioner. In so far as the
judgment in Aruna @ Survana's case (supra) is concerned, it has been
held by the Learned Single Judge of the Karnataka High Court that
Section 126(2) of the Cr.P.C. makes it clear that all evidence in respect of
Section 125 of the Cr.P.C. shall have to be recorded in the manner
prescribed for a summons case and that the procedure prescribed for
recording of evidence in summons case as found in Section 274 of the
Cr.P.C. would have to be followed.
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10 In so far as the judgment in Rama Prasanna Tiwari's case
(supra) is concerned, it has been held by a Learned Single Judge of the
Madhya Pradesh High Court that Section 10 of the Family Court's Act
contains a specific provision which postulates that the procedure for the
proceedings under Chapter IX of the Cr.P.C. are required to be adopted. It
has further been held that 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.
11 Now coming to the Division Bench Judgment of the
Karnataka High Court in Gayithri's case (supra), it has been held by the
Division Bench that the Family Court whilst dealing with a Petition
preferred under Section 125 of the Code is bound to follow the procedure
prescribed in Section 126 thereof. It has further been held that the
evidence shall be recorded in the manner prescribed for a summons case
and that there is no provision in the Code enabling a Magistrate to take
affidavit of evidence in a summons case. It is held that the procedure of
taking an affidavit in a summons case is completely unknown to the
provisions of the Code and the evidence has to be recorded as prescribed
by Section 274 of the Code which relates to recording evidence in
summons cases and inquiries.
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12 In so far as the judgment of a Learned Single Judge of this
Court in Vinod's case (supra), it has been held by the Learned Single
Judge of this Court that in so far as an application for maintenance under
Section 125 of the Cr.P.C. is concerned, the same falls under Chapter IX
of the Cr.P.C. and hence CPC has no application and the proceedings
would be governed by the Code of Criminal Procedure. The Learned
Single Judge in the said case was dealing with an order, whereby the
Family Court had struck of the defence of the Defendant. It is in the said
context that the Learned Single Judge held that the striking of defence
was a procedure not contemplated by the provisions of the Cr.P.C. and
that the procedure that was required to be followed in respect of the
application under Section 125 is concerned was governed by the Cr.P.C.
and not the CPC and therefore the provision for striking of defence is not
applicable.
13 Hence having regard to the aforesaid judgments, the weight
of the judicial pronouncements can be said to be in favour of the
procedure that is required to be followed whilst trying a summons case in
so far as an application under Section 125 of the Cr.P.C. is concerned. The
application of the said procedure to a proceeding under Section 125 of
the Cr.P.C. before the Family Court can be said to be ingrained in Section
10 of the Family Court's Act, under which the Family Court can regulate
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its procedure.
14 Now coming to the contention of the Learned Counsel for
the Petitioner that it is in the context of the fact that since all the
proceedings were clubbed together that the facility of leading evidence by
way of an affidavit of evidence was extended to the Respondent.
However a reading of the impugned order does not disclose that the
same was the consideration that weighed with the Learned Judge of the
Family Court. In fact, the reasoning in the last paragraph discloses that
the Learned Judge has proceeded on the basis that the CPC and
especially Order 18 Rule 4 thereof applies to an application filed under
Section 125 of the Cr.P.C. This Court is informed that except the instant
application under Section 125 of the Cr.P.C. all other proceedings have
come to an end in so far as the Family Court is concerned. In so far as
Sub Section (3) of Section 10 of the Family Courts Act is concerned, the
same would also not further the case of the Respondent in so far as the
application of the procedure applicable to the summons cases are
concerned. The Learned Judge of the Family Court has missed the
aforesaid aspects whilst dealing with the application Exh.18 is concerned.
The Learned Judge of the Family Court seems to have been swayed by the
fact that the proceedings are pending for a long time. In my view, that
cannot be the basis for giving go bye to the procedure that is
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contemplated by the statute.
15 In that view of the matter, the impugned order dated
08.10.2015 is required to be quashed and set aside and is accordingly
quashed and set aside. The affidavit of evidence filed by the Petitioner
vide Exh.17 would have to be discarded. The Respondent however would
be entitled to lead her evidence by stepping into the witness box. Her
evidence would be recorded by the Trial Court as per the schedule
convenient to it. Since the Trial Court has already observed in clause 2 of
the operative part that the parties to co-operate and assist the Court in
early disposal of the old cases, it is expected of the parties that both the
examination-in-chief and cross-examination would be completed
expeditiously and not later than 31.01.2017. Since the matters are kept
on 14.12.2016, the Learned Judge of the Family Court may proceed with
the examination-in-chief of the Respondent however complete the
evidence latest by 31.01.2017. The Writ Petition is allowed to the
aforesaid extent. Rule is accordingly made absolute with parties to bear
their respective costs.
[R.M.SAVANT, J]
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