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2018 Supreme(P&H) 2919
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mrs. Justice Anita Chaudhry
Crl. Revision (F) No. 39 of 2015
Roshan Lal
v.
State of Haryana & Anr.
{Decided on 29/08/2018}
Mr. M.S. Yadav, Advocate for respondent No. 2.
Maintenance--Right to cross examine--Husband has right of cross examination in a petition filed under S.125 CrPC
Headnote:
(A) Criminal Procedure Code, 1973, S.125--Maintenance--Right to cross examine--Husband has right of cross examination in apetition filed under S.125 CrPC--Held; provisions of Section 15 and 16 of Family Courts Act do not render evidence taken on affidavits to be illegal but a witness has to be subjected to cross-examination and that right has to be given and cannot be closed--Family Courts Act, 1984, S.15 and S.16. (Para 16)
(B) Family Courts Act, 1984, S. 10(3)--Procedure--No doubt Section 10(3) of Act does not prevent Court from laying down its own procedure but it is for purposes of arriving at a settlement for the petitions under Section 125 Cr.P.C. (Para 15)
(C) Criminal Procedure Code, 1973, S.125--Husband’s right to cross-examination witness--Duty of the Court is to search for the truth and then do justice and this is very object for which Courts are created--Courts have to remove chaff from the grain, to separate falsehood from truth--Matrimonial litigation begins with parties mounting claims on each other which often are exaggerated to such an extent that truth and falsehood become inextricably mixed up and it is difficult to separate them and it would become more difficult if the right of cross-examination to the witness is closed--Therefore in matrimonial litigation the family Courts have to take due care and caution in closing the valuable right to file the written statement or to lead evidence or the right of cross-examination of any witness--Family Courts Act, 1984, Ss.10, 15 and 16. (Para 14)
JUDGMENT
Mrs. Anita Chaudhry, J.:- This revision is directed against the judgment dated 22.1.2015 passed by the District Judge, Family Court, Gurgaon on the petition filed under Section 125 Cr.P.C.
2. The issue for examination in this revision is whether the husband had the right of cross-examination in the petition filed under Section 125 Cr.P.C. The Family Court in its order dated 11.4.2014 ordered that evidence of the parties to be taken on affidavits. It relied upon Shabana Banu versus Imran Khan reported in 2010(1) RCR (Criminal) 158 to make that order but the judgment relied upon does not deal with the issue.
3. Record was called for and has been perused.
4. Babita by way of her evidence tendered her affidavit Ex. PA in evidence and introduced some documents and made a statement closing her evidence. The Court did not give the respondent the right of cross- examination. The case was adjourned for respondent’s evidence. The respondent did not appear on the adjourned hearing and his exemption was sought and finally when the matter was taken up on 12.1.2015, he moved an application seeking permission to cross-examine the witness as false statement had been made by the wife. The following order was passed by the District Judge, Family Court on 12.1.2015:-
“Today the case is fixed for evidence of the respondent, but learned counsel for the respondent has moved an application for seeking permission to cross-examine the witness on the plea that the petitioner has taken false, fabricated and concocted grounds. The respondent is being harassed and hence this application. Learned counsel for the petitioner has vehemently opposed the application pleading that it is a delaying tactic. It is observed from the records of the case that the evidence of the petitioner was recorded on 30.5.2014 and since then the respondent has availed the third effective opportunity for today to lead evidence. It has been submitted by the learned counsel for the respondent that he is notready for evidence today. The evidence of the petitioner was recorded in presence of the counsel for the respondent but till date no such application or prayer had ever been made. No cogent reason has been given for seeking to cross-examine the petitioner. The proceedings u/s 125 Cr.P.C. are to be disposed on the basis of affidavits and in the instant case there is no reasonable ground for permitting the respondent to crossexamine the petitioner. The application is accordingly dismissed. Since the respondent and his counsel are unwilling and unprepared for evidence, the case is adjourned to 14.1.2015 for evidence of the respondent to be brought at his own responsibility. Last opportunity is granted.”
5. The case was then adjourned and the statement of the respondent was recorded and his evidence was closed. The case was again adjourned for arguments. The respondent moved an application again seeking recall of the petitioner so that he could cross-examine the witness. The Family Court observed that no request or application for cross examination was filed on the date the petitioner (wife) was examined and the respondent was only delaying the case and dismissed the application and adjourned the case for final arguments. It finally disposed of the petition allowing maintenance to the wife.
6. It would be useful to reproduce Section 10, 15, 16 and 20 of the Family Courts Act, 1984 (‘Act’ for short) which read as under:-
10. Procedure generally.- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. -(1) Subject to the other provisions of this Act an
