Karnataka High Court
Vijay S/O Dundappa Olekar vs Smt. Chaitra Alias Vijayalaxmi W/O ... on 8 December, 2023
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RPFC No. 100062 of 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REV.PET FAMILY COURT NO.100062 OF 2022
BETWEEN:
VIJAY S/O. DUNDAPPA OLEKAR
AGE. 36 YEARS, OCC. SERVICE,
R/O. HIRE MARALIHALLI,
TQ. SAVANUR, DIST.HAVERI-581118.
...PETITIONER
(BY SRI. NAVEEN CHATRAD, ADVOCATE)
AND:
1. SMT. CHAITRA @ VIJAYALAXMI
W/O. VIJAY OLEKAR
AGE. 30 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. BASAVARAJ B.VENKATAPUR,
VISHWESHATEERTHA NAGAR,
HANGAL ROAD, HAVERI
TQ & DIST. HAVERI-581110.
Digitally signed
2. KUM. VAISHNAVI
by VISHAL
NINGAPPA D/O. VIJAY OLEKAR
VISHAL PATTIHAL
NINGAPPA Date:
AGE. 2 YEARS, OCC. NIL,
PATTIHAL 2023.12.14 R/O. C/O. BASAVARAJ B.VENKATAPUR,
11:36:29
+0530 VISHWESHATEERTHA NAGAR,
HANGAL ROAD, HAVERI
TQ & DIST. HAVERI-581110.
...RESPONDENTS
(BY SRI. HARSHWARDHAN M.PATIL, ADVOCATE FOR R1;
R2 IS MINOR REPRESENTED BY R1)
THIS R.P.F.C IS FILED UNDER SECTION 19(4) OF THE FAMILY
COURT ACT, PRAYING TO ALLOW THIS PETITION AND SET ASIDE
THE ORDER DATED 29.09.2021 PASSED BY THE FAMILY COURT,
HAVERI IN CRIM.MISC.NO. 136/2020, IN THE INTEREST OF JUSTICE
AND EQUITY.
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RPFC No. 100062 of 2022
THIS R.P.F.C, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The question to be answered in this revision petition is;
"whether the evidence by way of affidavit in the proceedings
under Section 125 of the Criminal Procedure Code, 1973
("Cr.P.C." for short) is acceptable?"
2. The present revision petition by the husband
assailing the order dated 29.09.2021 in
Crl.Misc.No.136/2020 on the file of the Family Court, Haveri
directing the husband to pay monthly maintenance of
₹6,000/- per month to the wife-respondent No.1 and
₹2,000/- to the daughter-respondent No.2 and directed the
husband to meet the educational expenses of the daughter
apart from the payment of maintenance.
3. The claim was made by the respondent-wife
under Section 125 of Cr.P.C., before the Family Court
seeking maintenance. The Family Court passed an order
directing the petitioner herein to pay monthly maintenance
to his wife and daughter as stated supra.
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4. Main grievance of the petitioner-husband is that
the Family Court, while deciding the petition of the wife for
maintenance, has taken the evidence by way of affidavit of
the parties. Learned counsel for the petitioner would contend
that the evidence by way of affidavit, where a petition was
filed under Section 125 of Cr.P.C, is not permissible and is
not in accordance with the procedure prescribed under
Section 126 Cr.P.C and the procedure prescribed under Sub-
Section (2) of Section 10 of the Family Courts Act, 1984
("the Act" for short) and the Family Court having not
followed the procedure as contemplated under the provisions
of Cr.P.C, the impugned order of the Family Court is
unsustainable.
5. Learned counsel for the petitioner would submit
that Section 16 of the Act provides that an "affidavit
evidence of any person who is not a party to the proceedings
can tender affidavit evidence, under whose instance such
person can be examined by the Court".
6. Learned counsel for the petitioner-husband
submits that, plain reading of Sub-Section (1) and (2) of
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Section 16 of the Act necessarily excludes the parties to the
matrimonial case and gives a clear indication as to who can
tender evidence by way of affidavit. Learned counsel has
placed reliance upon the decision of this Court in the case of
Shri Daulat son of Ramchandra Patil Vs. Smt.Saraswati
@ Meena W/o of Daulat Patil1.
7. Per contra, learned counsel appearing for the
respondents would contend that there is no total bar for
considering the evidence on affidavit as the amended CPC
itself provides for leading evidence by way of affidavit and
the present petition could not be set aside merely on the
ground that the evidence on affidavit is considered by the
Family Court while passing the impugned order. Learned
counsel would also contend that Section 126 Cr.P.C would
come into effect only if the Magistrate were to exercise the
jurisdiction and it is the jurisdiction of the Family Court
under Section 7 of the Act that has been invoked for grant
RPFC.No.100035/2021 C/w RPFC No.100084/2022, disposed of on
21.03.2023.
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of maintenance and the impugned order of the Family
Court does not call for any interference.
8. This Court has considered the rival contentions
urged by the learned counsel for the parties. This Court on
21.03.2023 in the Revision Petition, in the case of Daulat
S/o. Ramchandra Patil stated supra, placing reliance
upon the Judgment of the Bombay High Court in the case
of Anil Ambashankar Joshi Vs. Reena Anil Joshi and
another2 and the decision of Division Bench of this Court
in the case of Gayathri Vs. Ramesh3 and the Co-
ordination Bench of this Court in the case of Shri. Ujwal
Vs. Bharati and another4 and Sri. Somashekaraiah
Vs. Smt. Parvathamma5 has taken a similar view that,
where a petition is filed under Section 125 Cr.P.C, the
procedure to be followed is prescribed in Section 126
Cr.P.C., so far as recording of evidence is concerned.
ILR 1993 KAR 1857
ILR 2018 KAR 3426
ILR 2019 KAR 2614
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9. The procedure to be followed by the Family
Court in recording evidence is prescribed in Section 126
Cr.P.C and in light of the Judgments stated supra, the
procedure to be followed under Section 126 Cr.P.C is no
longer res integra and accordingly, the present petition
filed by the petitioner needs to be allowed under similar
terms.
10. Learned counsel for the respondents submits
that if the impugned order of maintenance awarded by the
family Court is set aside, the petitioner would absolve
himself from paying the maintenance to the respondents
and would contend that the petitioner be directed to pay
reasonable maintenance to respondent Nos.1 and 2 for
their sustenance. The fact remains that for non-following
of the procedure, the parties are made to suffer, more
particularly the wife and child who came to the Court
seeking maintenance against the husband, who is an able-
bodied person and the wife having no source of income
and based on the affidavit of assets and liabilities filed by
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the wife and husband, the concerned Family Court has
awarded maintenance of ₹6,000/- to the wife and
₹2,000/- to the daughter.
11. This Court having no other option due to the
procedure lapses and in view of the provisions of Section
126 Cr.P.C, the matter needs to be remitted back to the
Family Court. However, in light of remand, the wife and
daughter should not be left without any maintenance and
an interim maintenance needs to be awarded till the
disposal of the matter pending before the Family Court.
For the foregoing reasons, the petition needs to be allowed
and this Court pass the following:
ORDER
i) The revision petition is hereby
allowed.
ii) The impugned order passed by the
Family Court is herby set aside.
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iii) The matter is remitted back to the
Family Court for fresh disposal after offering
an opportunity to the parties to lead
evidence as per the procedure prescribed
under Section 126 Cr.P.C by entering into
the witness box.
iv) The husband to continue to pay
₹6,000/- to the wife and ₹2,000/- to the
daughter till the matter is disposed of by the
Family Court and also to meet the
educational expenses of the daughter apart
from payment of aforesaid maintenance as
and when respondent No.2-daughter is
admitted to the school.
v) The awarding of maintenance of
₹6,000/- to the wife and ₹2,000/- to the
daughter is by way of an interim
arrangement and the Family Court to
consider the matter afresh without being
influenced by any of the findings of this
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Court and pass an appropriate order in
accordance with law.
Sd/-
JUDGE
EM & PJ, CT: UMD
