ORDER :

This petition is filed for setting aside the order dated 03.11.2017 passed by the II Additional Principal Judge, Family Court, Bengaluru, in Crl.Misc. No.271/2013 and consequentially to dismiss the petition.

2. The facts leading to this petition are that the respondent – wife had filed a petition under Section 125 of the Code of Criminal Procedure before the Family Court seeking maintenance. On hearing both parties, the II Additional Principal Judge, Family Court, Bangalore, passed an order directing the petitioner to pay the maintenance of Rs.5,000/- per month from the date of petition till she deserves to receive it. The respondent shall also pay the arrears of maintenance and shall continue to pay the current and future maintenance amount on or before 10th of every month.

3. Several grounds are urged challenging the legality of the impugned order.

4. The main contention is that the evidence by way of affidavit is not permissible in the maintenance proceedings initiated under Section 125 of Code of Criminal Procedure. The learned counsel for the petitioner would strenuously contend that the evidence by way of affidavit in respect of 125 Cr.P.C. is not in accordance with the procedure prescribed under Section 126 of Cr.P.C. The learned counsel for the petitioner relying on decisions reported in ILR 2009 KAR 3728 and another decision reported in ILR 1993 KAR 1857 submitted that the Family Court has not followed the procedure under Section 125 of Cr.P.C. Thus, the findings given on the basis of the affidavit evidence cannot be sustained. In a proceeding under Section 125 of Cr.P.C., the evidence shall have to be recorded in a manner prescribed for summons case and the procedure of taking an affidavit in a summons case is against the provisions of the Code. Thus, the impugned order is not in accordance with law.

5. Per contra, the learned counsel for the respondent submitted that in view of Section 16(2) of the Family Courts Act, the Family Court may if it thinks fit and shall on the application of any of the parties to the suit or proceeding, summon and examine any such person as to the facts contained in his affidavit. There is no total bar for considering the evidence on affidavit. The impugned order cannot be set aside merely on the ground that the affidavit evidence is considered by the Family Court for passing the order. Section 126 of the Code would come into picture only if a Magistrate were to exercise the jurisdiction and it is the jurisdiction of the Family Court under Section 7 of the Family Courts Act that has been invoked for grant of maintenance and, therefore, there is no scope for this Court to find out whether the proceedings taken by the learned Judge of the Family Court are in accordance with Section 126 of the Code. In support of his contention, he has relied on unreported decision in Crl. Revision No.480/2010.

6. In view of the rival contentions, the main question that requires to be answered is whether the affidavit evidence is permissible in maintenance proceedings under Section 126 of the Code of Criminal Procedure?

7. In order to ascertain the legality of affidavit evidence in maintenance proceedings, it is necessary to refer to the provision of Section 126 of the Code of Criminal Procedure, which reads as under:

126. Procedure:

(1) Proceedings under section 125 may be taken against any person in any district-6

(a) where he is, or

(b) where he or his wife, resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) 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, 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:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wil