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DELHI HIGH COURT
Vibhu Bakhru, J.
Ajay Gupta —Petitioner
versus
Sonia Gupta —Respondent
Crl.Rev.P.No.523 of 2019 and Crl.M.A.No.9437 of 2019
Decided on 30.4.2020
For the Petitioner:Mr Kanishk Ahuja and Ms Neha Bhatia, Advocates
For the Respondent:Mr Shailendra Babbar and Ms Siddhi Mittal, Advocates along with the respondent in person.
IMPORTANT POINTS
(1) Family Court can accept evidence on affidavit.
(2) There is no imputation of culpability on a person against whom an order of maintenance is proposed to be made.
(3) Family Courts are required to follow procedure as set out in Family Courts Act for determining matters placed before it notwithstanding procedure as may be stipulated in Cr.P.C.
Headnote:
(A) Family Courts Act, 1984 – Sections 7, 10 and 14 – Criminal Procedure Code, 1973 – Sections 126 and 273 – Evidence on affidavit in Family Court – Magistrate, while dealing with application under Section 125 of Cr.P.C, is required to follow procedure as specified in Section 126 of Cr.P.C. and all evidence is required to be taken in presence of person against whom an order of maintenance is proposed to be made – However, proceedings in present case are not before a Magistrate but before a Family Court established under Section 3 of Family Courts Act, 1984 – Family Courts are required to follow procedure as set out in Family Courts Act for determining matters placed before it notwithstanding procedure as may be stipulated in Cr.P.C. (Paras 11 and 18)
(B) Criminal Procedure Code, 1973 – Sections 126 and 273 – Family Courts Act, 1984 – Sections 7, 10, 14 and 16 – Evidence on affidavit in Family Court – Application for interim maintenance under Section 125 of Cr.P.C. – There is no imputation of culpability on a person against whom an order of maintenance is proposed to be made – He is not considered as an accused but is merely a respondent to a claim for maintenance which in given circumstances is recognized as his obligation – Family Court can deviate from prescribed procedure and devise its own procedure considering objects of the Act – Section 16 of FC Act must be construed as enabling Family Court to accept formal evidence by way of affidavit and not limiting discretion of Court to evolve its own procedure including accepting evidence which is otherwise not of a formal character, on affidavit – No infirmity in decision of Family Court in accepting evidence by way of an affidavit, permitting respondent to tender the same in her examination-in-chief and providing opportunity to petitioner to cross-examine respondent. (Paras 20, 21, 36, 45 and 50)
Result: Petition dismissed.
JUDGMENT
Vibhu Bakhru, J.—The petitioner has filed the present petition, inter alia, impugning an order dated 14.03.2019 (hereafter the ‘impugned order’) passed by the learned Principal Judge, Family Courts, Tis Hazari Courts (the Family Court) in Maintenance Petition No. 142/2014 titled ‘Sonia Gupta v Ajay Gupta’. By the impugned order, the Family Court, inter alia, rejected the petitioner’s application under Section 126 of the Code of Criminal Procedure, 1973 (hereafter ‘Cr.PC’) praying that the evidence filed by the respondent by way of an affidavit (Ex.PW1/A) be struck off and the respondent be directed to examine herself in accordance with the procedure prescribed under Cr.PC.
2. The petitioner contends that the proceedings under Section 125 Cr.PC are required to be conducted in accordance with the procedure prescribed under Section 126 Cr.PC. It is the petitioner’s case that in terms of sub-section (2) of Section 126 of Cr.PC, all evidence is required to be taken in presence of the person against whom an order for payment of maintenance is proposed to be made and is to be recorded in the manner prescribed for a summons case. Therefore, an affidavit by way of evidence, in substitution of recording the examination-in-chief, is not permissible.
3. The limited controversy to be addressed is whether it is open for the learned Family Court to accept the claimant’s evidence by way of affidavit.
4. The present controversy arises in the following factual context:
4.1 The respondent filed a petition under Section 125 of the Cr.PC, being Maintenance Petition No. 142/2014, before the Family Court, inter alia, seeking maintenance from the petitioner under Section 125 of the Cr.PC. The respondent also filed an application seeking interim maintenance. On 16.04.2012, the Court considered the said application and issued notice to the petitioner.
4.2 The respondent’s application for interim maintenance was rejected by an order dated 02.03.2015 passed by the learned Family Court.
4.3 Aggrieved by the same, the respondent preferred a revision petition before this Court (Crl.Rev. No. 245/2015), which was allowed. By an order dated 15.03.2017 passed by this Court, the order dated 02.03.2015 passed by the learned Family Court was set aside and the matter was remanded to decide afresh in the light of various decisions.
4.4 In compliance with the said order, the learned Family Court considered the respondent’s application afresh and rejected the same by an order dated 22.05.2017. However, on 22.05.2017 the learned Family Court also directed that “advance copy(ies) of the affidavit/s to be tendered in evidence on behalf of the petitioner be supplied to counsel for the respondent [the petitioner herein] before the next date”.
4.5 On 04.07.2017, the respondent was unwell and the matter was adjourned to 07.11.2017. On that date (07.11.2017), the matter was deferred on joint request of counsel for the parties to 20.11.2017 and thereafter, it was adjourned to 21.11.2017. On that date, the matter was deferred to 22.11.2017 to explore the possibility of a settlement between the parties.
4.6 On 22.11.2017, the respondent sought an adjournment, which was allowed and the matter was listed on 30.11.2017. The Court granted a last opportunity for recording of the petitioner’s evidence.
4.7 The order dated 30.11.2017 records that examination-in-chief of PW1, Sonia Gupta, was partly recorded and further examination-in-chief was deferred for want of original documents. The matter was thereafter listed on 04.12.2017 but was adjourned on that date.
4.8 Thereafter, the matter was deferred on various occasions as this Court had, by an order dated 09.01.2018, directed that the matter be fixed before the Trial Court after the mediation proceedings before Delhi High Court Mediation and Conciliation Centre, are concluded.
4.9 On 28.05.2018, the Trial Court passed an order awarding interim maintenance of Rs.15,000/- per month in favour of the respondent. The matter befor
