Andhra Pradesh High Court Rules Affidavit Evidence Impermissible in Maintenance Proceedings Under Section 126(2) CrPC

In a significant ruling that reinforces the strict procedural requirements for maintenance cases, the Andhra Pradesh High Court has declared that chief‑examination cannot be submitted through affidavits in proceedings under Section 125 of the Code of Criminal Procedure, 1973 (Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023). A single bench of Dr. Justice Venkata Jyothirmai Pratapa held that such a practice violates the mandatory command of Section 126(2) CrPC (Section 145(2) BNSS), which mandates evidence to be recorded in the presence of the person from whom maintenance is sought. The court simultaneously found that the trial judge had failed to comply with the disclosure guidelines laid down by the Supreme Court in Rajnesh v. Neha (2021). As a result, a Family Court order that granted monthly maintenance of Rs.30,000 to a wife and Rs.20,000 to her minor son was set aside and the matter remanded for a fresh trial.

Case Background

The petitioner, Karnam Upendra, an unemployed resident of Bangalore, challenged the order dated 14 May 2024 passed by the Family Court‑cum‑V Additional District Court, Tirupati. His wife, K. Parameswari, a software employee at Capgemini, and their eight‑year‑old son had filed for maintenance under Section 125 CrPC. The Family Court, after receiving chief‑examination by way of an affidavit and conducting full‑fledged proceedings, partly allowed the petition and fixed the monthly maintenance amounts. The husband moved the High Court in revision under Sections 438 and 442 of BNSS.

The Contentions

The principal challenge advanced by Mr. Thandava Yogesh, counsel for the husband, was twofold. First, that the trial court committed a fatal procedural irregularity by accepting the wife’s chief‑examination in affidavit form, contrary to Section 126(2) CrPC, which expressly requires all evidence to be taken in the presence of the opposite party. Second, the court had rendered its decision without ensuring that both parties filed the detailed affidavits of assets, income, and liabilities mandated by the Supreme Court in the Rajnesh case. The husband further argued that the wife’s own employment as a software professional had been ignored and that an application under Section 91 CrPC for summoning income‑tax records was not properly considered.

Opposing the revision, Mr. M.S. Banu Prasad Rao, appearing for the respondents, contended that maintenance proceedings are quasi‑civil in nature and, therefore, the procedure under Order XVIII Rule 4 of the Code of Civil Procedure – which permits examination‑in‑chief by affidavit – could be adopted. He argued that the impugned order did not suffer from any legal infirmity.

The Court’s Reasoning

Dr. Justice Pratapa conducted a detailed analysis of the statutory mandate. Section 126(2) CrPC uses the imperative “shall” and states that evidence “shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader.” The court underscored that the provision contains no enabling clause that would allow substitution of oral chief‑examination with a mere affidavit. Reading Section 126(2) alongside Section 254 CrPC (Section 277 BNSS) – which governs evidence in summons cases – the judge concluded that the procedure of Chapter IX of the Code does not admit of an affidavit‑based chief‑examination.

The High Court placed strong reliance on an earlier coordinate bench decision in Veerisetty Ramesh Babu vs. Veerisetty Ramadevi and another (Crl. Revision Case No. 1009 of 2019, dated 24.04.2000), which had categorically held that evidence in proceedings under Section 125 CrPC must be recorded in strict conformity with the Criminal Procedure Code and that chief‑examination by affidavit is legally impermissible. That judgment also clarified that even when a Family Court entertains such a case, Section 10(2) of the Family Courts Act, 1984, mandates adherence to Chapter IX of the Code and excludes the application of Order XVIII Rule 4 CPC.

A Warning Against Broadening the Enquiry

The court expressed concern that if affidavit evidence were permitted, parties would often introduce detailed allegations concerning related matrimonial disputes, custody battles, dowry cases, and protection orders, thereby converting a summary maintenance enquiry into a full‑fledged trial of all ancillary issues. This would not only delay the relief but would also defeat the legislative intent of providing an expeditious remedy to neglected spouses, children, and parents. The judgment cautioned that cross‑examination must be confined strictly to facts relevant to the maintenance claim and that the trial court should disallow fishing or roving inquiries on matters pending before other forums.

Failure to Comply with Rajnesh Directions

The second major flaw identified by the High Court was the trial court’s complete disregard for the binding directives of the Supreme Court in Rajnesh v. Neha . The apex court had mandated that in every maintenance proceeding, both parties file comprehensive affidavits disclosing their assets, income, expenditure, liabilities, and overall financial capacity. The objective is to allow a court to base its decision on verified financial data rather than on mere assertions. The judgment noted that the Family Court had proceeded to adjudicate the claim without ensuring such disclosures, thereby depriving itself of the foundational material necessary for a fair determination.

Key Observations

The High Court made several important pronouncements:

  • “The provision does not contemplate evidence being tendered by way of affidavits nor does it contain any enabling provision authorising the Court to substitute oral chief‑examination with evidence affidavit.”

  • “Proceedings under Section 125 CrPC are intended to provide a summary and efficacious remedy… The enquiry is confined to limited questions… The proceedings are not intended to become a forum for adjudicating every matrimonial dispute.”

  • “The counsel for the opposite party shall not undertake a roving or fishing cross‑examination on each and every allegation contained in the affidavit, particularly those pertaining exclusively to disputes pending before other competent forums.”

  • “Once it is found that the evidence was received contrary to the procedure mandated by law, the findings recorded on the basis of such evidence cannot be sustained.”

Remand and Continuing Obligations

Finding the impugned order legally unsustainable on both procedural and disclosure grounds, the court disposed of the Criminal Revision Case by remanding the matter to the trial court. The Family Court was directed to record evidence afresh in strict compliance with Section 126(2) CrPC and to dispose of the case on merits, preferably within two months, after ensuring compliance with the Rajnesh disclosure requirements. Until the fresh disposal, the husband was ordered to continue paying 50% of the maintenance amount, as had been fixed by a coordinate bench of the High Court while granting interim stay.

Recognising the wider implications, the court directed the Registry to circulate a copy of the order to all judicial officers in the district judiciary across the State. This step aims to ensure that the mandatory procedure under Section 126(2) CrPC (Section 145(2) BNSS) is uniformly followed in maintenance cases and that no further orders are vitiated by a similar error.

The ruling thus reaffirms that summary maintenance proceedings are not a licence for procedural shortcuts and that courts must remain vigilant to preserve both the letter and the spirit of the protective provisions of the Code.