2011 Supreme(Kar) 79

High Court of Karnataka (Circuit Bench At Gulbarga)
THE HONOURABLE MR JUSTICE ARALI NAGARAJ
Sunanda & Another
Versus
Bharat Naik
RPFC No.156 of 2006
Decided on : 31-01-2011

Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Section 126(2): [Arali Nagaraj,J] Mandatory Procedure to be followed in recording evidence by the Magistrates - Acceptance of affidavit evidence of the Petitioner in the absence of Respondents - Family Court failed to record that the Respondent was wilfully avoiding service of Notice or neglecting to attend the Court - Legality of the proceedings - Held, Section 126(2) of Cr.P.C. provides that all evidence to proceedings under Chapter IX of Cr.P.C. shall be taken in the presence of the person against whom an order of payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases. Further, proviso to sub-Section (2) of Section 126 Cr.P.C. provides that if the Magistrate is satisfied that the person against whom an order for payment of maintenance proceeding is violative of provisions of Section 126(2) of Cr.P.C. inasmuch as, the said provision provides that the evidence shall be recorded in the manner prescribed for summons-cases. The receiving of affidavit in lieu of examination-in-chief of a witness is not prescribed under any of the provisions of Cr.P.C. providing for recording of the evidence in summons-cases. Therefore, the receiving of the affidavit of the 1st petitioner in lieu of her examination-in-chief and placing reliance on it, cannot be sustained in law. On facts, held, On 7.7.2005 on which date the 1st Petitioner filed her affidavit in lieu of her examination-in-chief, the respondent and his counsel were not present. The order sheet does not reveal further that on that date of hearing, personal attendance of the respondent was dispensed with or that the Family Court was satisfied that the respondent, against whom an order of payment of maintenance was proposed to be made, was willfully avoiding service or willfully neglecting to attend the Court. Therefore, recording of the evidence for the petitioners by receiving the affidavit of the 1st petitioner therein in lieu of her examination-in-chief, in the absence of the respondent and his counsel, is in violative of the mandatory provisions of Section 126(2) of Cr.P.C.

       FAMILY COURTS ACT, 1984 - Section 7(2)(a): [Arali Nagaraj, J] Jurisdiction of the Family Court under - Application of the provisions of code of Criminal Procedure and the rules made thereunder to the proceedings under Chapter IX of the Code before a Family Court - Exercise of provisional jurisdiction under Section 397 Cr.P.C by the High Court in respect of any Order passed by the Family court in maintenance proceedings - eld, As provided under Section 7(2)(a) of the Family Courts Act, 1984, the Family Court shall have and exercise the jurisdiction of the Magistrate of the First Class vested in him under Chapter IX of Cr.P.C while dealing with the petition for maintenance of wife and children. Section 10(2) of the Family Courts Act, 1984 provides that subject to provisions of the said Act and the rules, the provisions of the Code of Criminal Procedure, 1973 or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. From the combined reading of the provisions of Sections 7(2) (a) & 10(2) of the Family Courts Act, 1984, it is clear that the Judge of the Family Court exercises the jurisdiction of the Magistrate vested in him under Chapter IX Cr.P.C while dealing with the petition for maintenance of wife and children. Section 19(4) of the Family Courts Act, 1984 further provides that the High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of Cr.P.C, 1973 for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding. - Further, Therefore, it is clear from the above provisions of the Family Courts Act, 1984 and Cr.P.C. that the High Court can exercise its revisional jurisdiction vested in it under Section 397 of Cr.P.C. in respect of any order passed by the Family Court in respect of any order passed by the Family Court in maintenance proceedings before it. Therefore, even in the absence of a revision by the respondent challenging the legality and correctness of the impugned order of the Family Court, High Court in exercise of its revisional jurisdiction under Section 397 of Cr.P.C. read with Section 19(4) of the Family Courts Act, 1984 can examine the legality, propriety or correctness of the Judgment and Order of maintenance passed by Family Court.