JUDGMENT

NEENA BANSAL KRISHNA, J.

1. Petition under Section 482 of Code of Criminal Procedure, 1973 (‘Cr.P.C.’ hereinafter) has been filed against the Order dated 25.02.2017 whereby learned Metropolitan Magistrate (Mahila Court), Rohini, Delhi has allowed the Application under Section 311 Cr.P.C. filed by Respondent No.2 Ms. Neelam Gaur and permitted the evidence affidavit of her father-Surinder Kumar Sharma.

2. Briefly stated, Petitioner, Sachin Gaur got married to Respondent No.2- Ms. Neelam Gaur on 01.02.202002 and two children were born from their wedlock.

3. Respondent No.2- Ms. Neelam Gaur preferred a Complaint CC No. 100200/16 under Section 12 read with Sections 17,18,19,20,22 & 23 of Protection of Women from Domestic Violence Act, 2005 (‘DV Act’ hereinafter) before the learned Metropolitan Magistrate. She also lodged FIR No. 214/2009, under Sections 406/498/34 of the Indian Penal Code, 1860 (‘IPC’ hereinafter) at Police Station Keshavpuram, Delhi on 22.07.2009, against the Petitioner and his family members.

4. During pendency of the DV Act proceedings, Respondent No.2-Ms. Neelam Gaur preferred an Application under Section 311 Cr.P.C. for adducing additional evidence of her father- Surinder Kumar Sharma by way of Affidavit.

5. The Petitioner opposed the said Application on the ground that evidence of Complainant’s father or any other witness, cannot be led by way of an Affidavit.

6. Learned Metropolitan Magistrate by impugned Order dated 25.02.2017 allowed the evidence of the father to be led by way of Affidavit.

7. Aggrieved by the Order, present Petition has been filed wherein the impugned Order has been challenged on the ground that under the3 DV Act the evidence has to be led in the Court in person and cannot be permitted to be taken by way of Affidavit. To support this proposition, it is contended that Section 28(1) of the DV Act read with Rule 6(5) of DV Act postulates that proceedings therein, shall be conducted in the same manner as under the provisions of Cr.P.C., 1973.

8. Section 126 Cr.P.C. provides the procedure for disposal of proceedings under Section 125 Cr.P.C. Clause (2) of Section 126(2) postulates that all evidence shall be taken in presence of person against whom an Order for payment of maintenance is proposed to be made and shall be recorded the manner provided for summons case. The Section is as follows:

“126. Procedure.—

(1) Proceedings under section 125 may be taken against any person in any district—

(a) where he is, or

(b) where he or his wife resides, or 

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.”

9. Chapter XXIII Cr.P.C. provides that evidence be taken by examining the witness in the Court. The aforesaid position has not been changed by Section 10 of the Family Court Act, 1984, which is in consonance with the provisions of Cr.P.C. Section 60 of Evidence Act provides that oral evidence must in all cases, whatsoever be direct. It is therefore, abundantly clear that the testimony of the witnesses in proceeding