Hon’ble Aniruddha Singh, J.—Heard Sri Adarsh Kumar, Advocate holding brief of Sri B.N. Rai, learned counsel for the revisionist and Sri R.K. Saxena, learned counsel for the opposite party.

2. This criminal revision under Section 397/401 Cr.P.C. has been preferred against judgment and order dated 31.5.1994 passed by Principal Judge, Family Court, Kanpur Nagar in Case No. 508 of 1983 under Section 125 Cr.P.c. Thereby revisionist Sanjai Shukla was directed to pay maintenance of Rs. 350/- per month to his wife Smt. Geeta Shukla from the date of application i.e. 25.8.1993.

3. Learned counsel for the revisionist submitted that impugned order was passed illegally on the basis of evidence given by both parties on affidavits only and the maintenance awarded by the Court concerned from the date of application is wrong; Smt. Geeta Shukla was living in adultery and one daughter was born after desertion.

4. Learned counsel for opposite party Smt. Geeta Devi opposed the contention of counsel for the revisionist.

5. It is admitted fact between the parties that evidence was adduced by both the parties by affidavits only and no cross-examination was done. It was held by this Court in the case of Arvind Kumar v. Smt. Suman, 1995 All. JIC 441, that evidence of witnesses of fact has to be either recorded by Judge or cause to be recorded although not at length and it is only the evidence of formal witness which can be accepted in the form of affidavit as mentioned in Section 16 of Family Courts Act, 1984. Relevant parts of said judgment are quoted below :

“4. From the judgment of the Family Court it would be clear that it accepted evidence of the parties in the form of affidavits and on the basis of consideration of those affidavits decided the matter. Under Section 15 of the Family Courts Act, 1984 “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.”

5. Section 16 of the aforesaid Act lays down :

“(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 proceeding before a Family Court.

(2) 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.”

6. From the above two sections it is clear that the evidence of witnesses of fact has to be recorded either by the Judge himself or caused to be recorded by him and a memorandum of the substance of what the witnesses depose, has to be kept and signed by the witnesses and the Judge. The evidence of a formal character can be taken on affidavit but on the application of any of the parties the Family Court may summon and examine any such person as to the facts contained in his affidavit. It is thus clear that witnesses of fact to be examined by the Family Court. Their evidence cannot be taken on affidavit. The trial Judge committed a patent error in accepting the evidence of factual witnesses on affidavit and then relying upon it while delivering judgment.

7. In view of the above judgment of the Family Court cannot be sustained. The revision has, therefore, to be allowed.

6. It is relevant to reproduce Sections 7(2)(a), 10(3), 14, 15 and 16 of Family Courts Act, 1984 which are quoted below :

“7. Jurisdiction—(1)....

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX(relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973(2 of 1974)”

“10. Procedure