The main legal point established in the judgment is that the procedure for recording evidence in a proceeding under Section 125 of the Cr.P.C. should follow the provisions of the Cr.P.C. and not the CPC, and the Family Court has the authority to regulate its own procedure, but specific procedures for summons cases should be followed in relevant contexts.

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 Court5, Pune, by which order, the application Exh.18 which has been filed to discard the evidence 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 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 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.

5. 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 t