The Family Courts Act allows for the admissibility of evidence of formal character on affidavit, while excluding the admissibility of oral evidence on affidavit in a suit in the Family Court.

The short question for consideration in the petition is whether oral evidence can be permitted to be given on affidavit in any suit in the Family Court.

The petitioner had filed a suit for decree of divorce against his wife-opposite party No.2. After recording of the evidence of the petitioner, the opposite party filed oral evidence on affidavit. The petitioner raised objection to the effect that oral evidence on affidavit is not permissible under the Act. The learned court below, however, rejected objection on the ground that under Section 10 (3) of the Family Courts Act, 1984 (hereinafter referred to as the Act) Family Court can adopt its own procedure and also that in the amended Code of Civil Procedure evidence of the witness can be given on affidavit. It is also observed by learned court that there is no provision in the Family Court against the amended provision of the Code of Civil Procedure.

2. Aggrieved with the said order, the petitioner has filed the instant writ petition.

3. Learned counsel for the petitioner submitted that in view of Section-15 and 16 of the Act, oral evidence on affidavit can not be permitted to be given on affidavit. On the other hand learned counsel appearing on other side vehemently argued that under Order XIX of Code of Civil Procedure oral evidence has to be given only on affidavit.

4. I have considered the submission of learned counsel for the parties and gone through the Family Courts Act.

5. Before embarking upon the point involved in this case, it may be mentioned that one of the objects to enact the Act was to simplify the rules of evidence and the procedure so as to enable the Family Courts to deal effectively with a dispute. In conformity with this object the Act itself provides the manner in which oral and formal evidence can be permitted to be given in a case pending in the Family Court.

6. On going through the impugned order, I am constrained to observe that learned court below had passed the impugned order without properly examining the relevant provisions contained in Section 15 and 16 read with Section-20 of the Act.

7. To facilitate the proper appreciation of the controversy involved Section-10 as also Sections-15, 16 and 20 are reproduced hereinbelow:-

"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 an other law for the time being in force shall apply to the suits and proceedings (other than 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. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other."

"15. Record of oral evidence:- In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length , but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record."

"16.Evidence of formal character on affidavit.- (1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceedings before a Family Court.

(2) The Family Court may, if