B.D. Agarwal, J.

1. This criminal petition, filed under Section 482 of the Criminal Procedure Code, 1973, has raised certain issues with respect to the procedure to be followed by the Family Courts, while hearing an application for maintenance allowance and for other reliefs. Heard Mr. B.M. Choudhury, learned counsel for the petitioner (husband) and Mr. A.K. Purkayashtha, learned counsel for the respondent No. 2 (wife). The State of Assam is a formal party and it was represented by Mr. BB Gogoi, learned Additional Public Prosecutor for the State. In view of the legal issues raised in the Criminal Petition, Gauhati High Court was also impleaded as Respondent No. 3 and it was represented by Mr. N. Choudhury, learned Standing Counsel.

2. The criminal petition stems out of summary procedure being followed by the Family Courts in recording the statements of witnesses through Counselors and that too without allowing the parties to take the assistance of counsels.

3. Respondent No. 2 herein filed an application in the Family Court, Kamrup, Guwahati under Section 125 of the Criminal Procedure Code, 1973 (in short 'CrPC') seeking maintenance allowance for herself pleading that she is the legally wedded wife of the petitioner and her husband has wilfully refused and neglected to maintain the respondent despite having sufficient means and income.

4. On the basis of the averments made in the application, the Family Court has granted interim maintenance allowance @ Rs. 3000/- per month vide order dated 7.10.2010. Having received the notice from the Court, the husband appeared in the Court and filed his written statement, inter-alia, denying and disputing any marriage with the respondent No. 2. After filing of the pleadings, the case was listed for evidence on 29.3.2011. On that day, the husband filed a petition seeking leave of the Court to take assistance of a particular lawyer. Though the petition was taken on record, no order either allowing or rejecting the prayer was passed. On the other hand, the Court recorded deposition of two witnesses on the very same day through its Counsellor. The witnesses were also cross-examined by the Counsellor herself. Being aggrieved with this procedure adopted by the Family Court the husband has preferred this criminal petition.

5. Mr. B.M. Choudhury, learned counsel for the petitioner submitted that there is no absolute bar to allow a party to be represented or assisted by a legal practitioner. According to the learned counsel, even if the Court was not willing to accede to the prayer of the petitioner the Court was obliged/required to either allow or reject the prayer of legal assistance. Having not done so, the proceeding conducted by the Family Court, more particularly keeping Petition No. 352 dated 29.3.2011 pending, is non est in law and, as such, the depositions of PWs 1 and 2 should be expunged from the record and the evidence should be recorded afresh in presence of a counsel for the petitioner.

6. Mr. B.M. Choudhury further went on to challenge the legality of the depositions of PWs-1 and 2 contending that a Counsellor of Family Court is neither competent nor authorised under law to record evidence of any witness. Referring to Section 15 of the Family Court Act, 1984 (briefly "the Act"), the learned counsel for the petitioner argued that oral evidence of witnesses must be recorded or caused to be recorded by the Judge of the Court and it is also mandatory for the Judge to sign the oral evidence of the witnesses. The learned counsel also argued that the deposition of a witness is not complete and cannot be treated as legal evidence unless the witness is cross-examined by the opposite party either himself or through his or her counsel.

7. The learned counsel for the petitioner also pleaded that when an application under Section 125 of the CrPC is filed in the Court of a Judicial Magistrate, the witnesses are allowed to be cross-examined either by the opposite party or by his or her lawyer. Howe