AND

ORDER

DATED

BHARATHI

H M

Digitally signed by

BHARATHI H M

Location: HIGH

COURT OF

KARNATAKA

DHARWAD

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27.04.2021, IN CRL.MISC.NO.594/2017, ON THE FILE OF THE JUDGE

FAMILY COURT, BELAGAVI, PARTLY ALLOWING THE PETITION FILED

UNDER SEC.125 OF Cr.P.C.

IN RPFC NO.100084/2022

AGE: 47 YEARS, OCC: HOUSEHOLD WORK,

SHAHU NAGAR, BELAGAVI-590010.

ABHISHEK S/O DAULAT PATIL

AGE:21 YEARS, OCC: NIL,

SHAHU NAGAR, BELAGAVI-590010.

…PETITIONERS

(BY SRI. ASHOK A NAIK., ADVOCATE)

TALUKA & DISTRICT: BELAGAVI-590010.

…RESPONDENT

(BY SRI. . YASH R NADAKARNI ADV. FOR SRI. VITTHAL S TELI)

ACT, AGAINST THE JUDGMENT AND ORDER DATED 27.04.2021, IN

CRL.MISC.NO.594/2017, ON THE FILE OF THE JUDGE FAMILY

COURT, BELAGAVI, PARTLY ALLOWING THE PETITION FILED UNDER

SEC.125 OF Cr.P.C.

THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT, COMING FOR PRONOUNCEMENT OF JUDGMENT THIS

DAY, THIS COURT, DELIVERED THE FOLLOWING:

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ORDER

The question to be answered in these revision

petitions is, “whether evidence by way of affidavit in

proceedings under Section 125 of Code of Criminal

Procedure, 1973 (“Cr.P.C.”) is acceptable?”

Revision Petition No.100035/2021 is filed by the

husband and Revision Petition No.100063/2021 is by the

wife assailing the order dated 27.04.2021 in Crl.Misc.

No.594/2017 on the file of the Family Court at Belagavi,

whereby, the petition filed by the wife under Section 125

of Cr.P.C. is allowed directing the husband to pay monthly

maintenance of Rs.12,000/- to the wife and Rs.10,000/- to

the son. The husband is seeking to set aside the impugned

award and the wife is seeking for enhancement of

maintenance.

3.

The claim was made by the respondent-wife

under Section 125 of the Cr.P.C. before the Family Court

seeking maintenance. The concerned Court passed an

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order directing the petitioner herein to pay monthly

maintenance to the wife and son.

4.

The main grievance of the petitioner – husband,

in addition to various other contentions is that, the

concerned Court while deciding the petition of the wife for

maintenance has taken the evidence by way of affidavit of

the parties. Learned counsel for the petitioner would

contend that the evidence by way of affidavit where a

petition was filed under Section 125 Cr.P.C. is not

permissible and is not in accordance with the procedure

prescribed under Section 126 Cr.P.C. and the procedure

prescribed under sub-section (2) of Section 10 of the

Family Courts Act, 1984 (“the Act” for short) and the

Family Court having not followed the procedure as

contemplated

under

the

provisions

of

Cr.P.C.

and

applicable under the Act.

5.

Learned counsel for the petitioner would submit

that Section 16 of the Act provides that an affidavit

evidence “of any person who is not a party to the

proceeding can tender affidavit evidence, at whose

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instance such person can be examined by the Court.”

Section 16 of the Act reads as under:

“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 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.

Learned counsel for the petitioner-husband

would contend that a plain reading of sub-sections (1) and

(2) of S.16 of the Act necessarily excludes the parties to

the matrimonial case and gives a clear indication as to who

can tender evidence by way of affidavit. Learned counsel

placed reliance on the judgment of the Bombay High Court

in the case of Anil Ambashankar Joshi vs. Reena Anil

Joshi and another [W.P.No.4243/2015].

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7.

Learned counsel also placed reliance on the

judgment of the Division Bench of this Court in the case of

Gayathri vs. Ramesh [ILR 1993 KAR. 1857] and the

judgment of a Co-or