Monday, 23 December 2019

Bombay HC judgment for recording of evidence on affidavit in proceeding U/S 125 of CRPC

It may be mentioned that the object of the Family Courts is
inter alia to secure speedy settlement of the disputes relating to
marriage and family affairs and the object of Chapter IX of the
Cr.P.C., as set out by the learned Magistrate in his opinion under
reference, is the speedy remedy provided to women and children
to obtain maintenance to prevent vagrancy and destitution.
Therefore, the provisions of the Family Courts Act so far as they
relate to the procedure set out in Chapter fV thereof must be
followed by the Magistrates who try applications under Chapter
IX which are essentially civil in nature and analogous to
proceedings under the Family Court's Act. Consequently in the

matters which go to trial under Chapter IX of the Cr.P.C the
Magistrate shall take "all the evidence" by affidavit of
examination- in-chief produced in support of the application. 
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
CRIMINAI, APPELLATE JURISDICTION
CRIMINAL REFERENCE NO.3 OF 2OO7
Mr. K.V. More
3.d Jt. Civil Judge (J.D.)
& J.M.F.C., Baramati
Dist: Pune
Vs.
The State of Maharashtra

CORAM: DR. S. RADHAKRISHNAN &
SMT.ROSHAN DALVI, JJ.

DATED: 23RD OCTOBER, 2007




1. This is a Reference made by the Applicant who is a
Magistrate inter alia taking up applications for maintenance filed
by women under the provisions of Section 125 of the Criminal
Procedure Code (Cr.P.C.). He has referred the facts of a case
before him being Misc. Application No.245 of 2006 filed by one
Sheetal Laxman Dhavale (Pawar) against her husb and Laxman
Maruti Dhavale (Pawar) under the aforesaid provisions. The
husband appeared pursuant to the notice issued by the Court
and filed his say. The Applicant wife filed her evidence by way of
affidavit of examination- in- chief. This was opposed by the
Cpponent/husband's Advocate on the ground that such a
procedure is not permitted under Section 126 in Chapter IX of
the Cr.P.C and under Section 254 in Chapter XXof the Cr.p.C.
2. The learned Judge has therefore, referred the said matter to
the High Couri for its opinion on the question whether
examination- in-chief of a witness under Section 125 of the
Cr.P.C can be accepted by way of affidavit. The Judge has
himself considered in depth the aforesaid provisions and put his
interpretation thereupon and referred the case for the opinion of
this Court.
3. We may mention that to answer the question referred for the
opinion of the High Court in the above Reference, we would
require to consider the provisions of the aforesaid Chapter of the
Cr.P.C alongside the provisions relating to the taking of evidence
by way of examination- in- chief in Civil proceedings contained in
Order XVIII Rule 4 of the Civil Procedure Code (C.P.C.) along with
certain other analogous provisions in the C.P.C contained in
Order M Rule 15 read with Section 26 of the C.P.C as also the
Family Court's Act, 1984.
4. We may mention that the purpose and object of all these
aforesaid provisions must be first appreciated in order to
understand the intent of the Legislature and the mode in which
the procedure is required to be followed to achieve the object
intended.
5. Chapter IX of the Cr.P.C deals with the order for maintenance
of wives, children and parents.
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6. The chapter came to be incorporated in the Cr.P.C in l9't4
and has been last amended by the Amendment Act of 2001 with
effect from 24th September, 2001.
7. It, therefore, relates to the provision of maintenance and not
for punishment for an offence. It is, therefore, a proceeding in a
family law and not in criminal law. The application for
maintenance lies before a Magistrate in all places where the
Family Courts are not established. This is for the convenience of
the applicants in the proceedings so that they have access to
justice in the courts having jurisdiction close to their place of
residence.
8. The order which is required to be passed under Section 125
(l) of the Cr.P.C is to make a monthly allowance or an interim
allowance. It is not a punishment for any offence by sentencing,
fine etc.
9. For breach of the order of maintenance, the Magistrate
entitled to levy fine as also imprisonment until payment is made
of one month under Section 125(3) of the Cr.P.C. This provision
is different from the orders passed in usual criminal trials.
10. Section 126 in Chapter IX of the Cr.P.C. deals with the
territorial jurisdiction of the Court in which the application is to
be preferred, and the procedure applicable in such applications.
Section 126( I ) gives jurisdiction to the closest Magistrate where
the application is required to be filed dependent upon the place
of residence of the Respondent or the Applicant or where they
had last resided together. Hence, in any place within the
Magistrate's jurisdiction where there is no Family Court, the
applicant would be entitled to file an application for
maintenance.
ll. Under Section 126(2) the evidence in such cases is required
to be recorded by the Magistrate as in summons cases.
12. Chapter XX of the Cr.P.C deals with trial of summons cases
by Magistrates. Section 254 in the said Chapter requires the
Magistrate to "toke ell such evidence" as may be produced in
support of the prosecution, hear the accused ar-d, "take all such
evidence" as the accused produces in his defence. The
Magistrate may issue summons upon any witness to attend and
give evidence or produce a document or thing, for which
reasonable expenses could be ordered to be deposited in the
Court. It may be mentioned that in usual criminal trials of
summons cases, the prosecution may lead evidence of its witness
who may be cross examined by the accused. The accused may
be heard upon such evidence and the accused himself may
produce witnesses in defence, whose evidence may be led by the
accused and who are liable to be cross examined by the
prosecution.
13. Under the proviso to Section 126(2), if the Respondent is
avoiding service or neglecting to appear in Court, the Magistrate
is entitled and enjoined to proceed Ex-parte. The Ex-parte order
is entitled to be set aside by the Respondent upon showing
sufficient cause within 3 months of its passing. It must be
appreciated that the provision contained in the aforesaid proviso
is analogous to proceedings in civil trials and not in criminal
trials. There is no provision for issue of summons, warrant of
arrest, proclamation or attachment to compel the appearance of
the Respondent under the provision of Chapter IX of the Cr.p.C.
As against that, there is a provision for passing the Ex-parte
order against the Respondent under the said proviso. This is
analogous to the provisions contained in Order IX Rule 6 of the
C.P.C. Further under the said proviso the Respondent is entitled
to have the order set aside which proviso is analogous to Order
IX Rule l3 of C.P.C. - there is no parallel in criminal trials under
any provision of Cr.P.C.
14. Under Section 126(3), the Magistrate's Court dealing with
such applications have the power to make an order for payment
of costs as may be just. This is analogous to Section 35 of the
C.P.C. - there is no parallel in criminal trials, under the other
provisions of Cr.P.C.
15. Under Section 127 of the Cr.P.C any alterations of the
maintenance amount granted by the Magistrate can be made for
change in circumstances of the person receiving such allowance.
Similarly under Section 127(2) of the Cr.P.C the order of
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maintenance made by the Magistrate may be cancelled or varied
in consequence of any decision of competent Civil Court. Under
Section 127(3) of the Cr.P.C an order of maintenance made by
the Magistrate may be cancelled upon the remarriage of the
woman applying for maintenance or from the date of the receipt
of an amount by her upon her divorce or upon surrender of her
right by her.
16. Further under Section 128 of the Cr.P.C the order of
maintenance is to be enforced by the Magistrate in any place
where the person against whom it is made may be. The amount
of such maintenance is to be recovered as a fine. Consequently,
the execution of the order would be under the provisions of
Section 431 of the Cr.P.C and the amount would be recoverable
as if it was a fine. Fine may be recovered under Section 421 of
the Cr.P.C by issue of a warrant for attachment and sale of any
movable property of the Respondent/Defaulter by issue of a
warrant upon the Collector of the District authorising him to
realise the amount by sale of the movable or immovable
properties of the Respondent/ defaulter.
17. A reading of all the aforesaid provisions in Chapter IX of the
Cr.P.C shows that the proceedings under the said Chapter are
for a purpose diametrically different from all the other criminal
proceedings in the Magistrate's Courts under the other
provisions of the Cr.P.C. These proceedings are essentially civil
in nature. It is only because the recovery of maintenance by
wives, children or parents are otherwise to be filed in the Family
Courts and several Talukas have no Family Courts that, for the
convenience of the applicants, the Magistrates have been
empowered to determine the amount of maintenance or interim
maintenance and pass orders for the payment of maintenance by
the Respondents in their applications. To that end the
Magistrates have the power of levying fine for breach of their
order under (Section 125(3), to pass an ex-parte order if the
Respondents avoid service (proviso to Section 126(2)), grant costs
as are just (Section 126(3)) alter the amount of allowance due to
change in circumstances (Section 127(l)), cancel or vary the
order (Section 127(2)&(3)) and execute the order as levy or fine by
issue of the necessary warrants or attachment of movable or
immovable properties (Section 43 I r.w. Section 421).
18. The procedure for trial of summon s cases to be followed by
the Magistrates for proceeding under Chapter IX of the Cr.p.C is,
therefore, required to be appreciated in that light. The
proceedings being in the nature of civil proceedings, the trial of
those proceedings may also be analogous to the trials of civil
proceedings. Upon the amendment to the Code of Civil procedure
(C.P.C) by the Civil Procedure Code (Amendment Act, 2002)
which came into effect from 1., July, 2OO2 the procedure
required in civil trials may apply and suitably be impoi ted into
the procedure for the trial of summons cases by the Magistrates
under Section 254 of the Cr.P.C. The Magistrate would be
required to "take " all evidence on behalf of the Applicant as well
8
as the Respondent under Section 254 of the Cr.p.C. The
"taking" of such evidence would therefore, be governed by the
provisions contained in Order XVIII of the C.p.C. The Rule 4 of
Order XVIU relating to recording of evidence would apply after
the amendment came into force in 2002 which is from 1., July,
2002.
19. Under the provision of Order XVIII Rule a(l) in every case
the examination- in- chief of the witness is required to be on
affidavit with copies being supplied to the opposite party. The
provision of admissibility of the documents filed along with the
affidavit would be subject to the orders ofthe Court.
20. Under Order XVIII Rule 4(2) the cross examination and reexamination
of the witness, whose evidence by affidavit has been
furnished before the Court is to be recorded by the Court or by
the Commissioner appointed by it.
21. Under Order XVIII Rule 4(3) the Court or the Commissioner
shall record the evidence either in writing or mechanically in the
presence of the Judge or the Commissioner.
22. Under Order XVIII Rule 4(4) the Commissioner may record
such remarks in respect of the demeanour of the witness as he
thinks fit as also the objection raised during recording of the
evidence before him.
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23. Under Order XVII Rule a(5) the Commissioner is required to
submit his report to the Court appointing him within 60 days of
the issue of the Commission work unless time is extended by
such Court.
24. Consequently upon the coming into force of the C.P.C
Amendment Act on and from l.t July, 2002 the provisions
contained in Order XVIII Rule 4 of the C.P.C would apply to all
the proceedings which are essentially civil in nature though filed
under Chapter IX of the Cr.P.C. The "taking" of all such
evidence as is produced by the Applicant as well as the
Respondent is, therefore, required to be considered taking into
account the aforesaid procedural requirements. Consequently
the Magistrate "sltall" 'oin every case " under Chapter IX of the
Cr.P.C take in evidence and record the evidence as per the
mandate contained in Order XVIII Rule 4 of the C.P.C., though
these proceedings, though civil in nature, are required to be tried
as summons case by the Magistrate. The Magistrate would
therefore, o'take" the evidence of examination- in-chief by
affidavit. He shall consider the admissibility of the documents
filed along with such evidence. He shall then either record the
cross examination in writing or mechanically or appoint a
Commissioner to record such cross examination.
25. The proceedings for maintenance of wives, children and
parents would be tried by Family Courts under the provision
contained in Section 7(2) of the Family Courts Act 1984 in all
l0
places which have a family Court.
26. Such proceedings would be tried by Family Courts in cases
where Family Courts are established under the provisions of
Section 8 of the Family Court's Act, 1984. The Family Court
would have the inherent jurisdiction to try a suit or proceedings
for maintenance under Section 7(f) of the Family Courts Act
(F.c.A.).
27. Under Section 9 of F.C.A it is
make efforts for settlement of all
28. Under Section 1l of the F.C.A
in camera if the Family Court so
camera if either party so desires.
duty of the Family Courts to
proceedings before it.
the proceedings could be held
desires, and shall be held in
the
the
29. Under
entitled to
Section 12 of the F.C.A the Family Court would be
secure the service ofany medical or welfare expert.
30. Under Section 13 of the F.C.A a party would not be entitled,
except upon permission of the Court, to be represented by a legal
practitioner.
31. Under Section 14 of the F.C.A the Family Court is entitled to
receive in evidence by way of reports, statements, documents,
information or matter even if it is not otherwise admissible under
the Indian Evidence Act, 1872.
1l
32. Under Section 15 of the F.C.A the Judge is required to record
only a memorandum of the substance of what the witness
deposes which shall form a part of its record.
33. Under Section 16 of the F.C.A (which is analogous to
Section 296 of the Cr.P.C.) formal evidence may be led by
affidavit. The FCA came into force in/on l't December, 1986 in
the State of Maharashtra. The aforesaid provisions which apply
to all the proceedings which may be filed in the Family Court
would, be required to be applied, as far as may be, to the
proceedings taken out in the Magistrate's Court under Chapter
IX of the Cr.P.C also. This would be in keeping with the object
and purpose of the Family Courts Act and as well as Chapter IX
of the Cr.P.C.
34. It may be mentioned that the object of the Family Courts is
inter alia to secure speedy settlement of the disputes relating to
marriage and family affairs and the object of Chapter IX of the
Cr.P.C., as set out by the learned Magistrate in his opinion under
reference, is the speedy remedy provided to women and children
to obtain maintenance to prevent vagrancy and destitution.
Therefore, the provisions of the Family Courts Act so far as they
relate to the procedure set out in Chapter fV thereof must be
followed by the Magistrates who try applications under Chapter
IX which are essentially civil in nature and analogous to
proceedings under the Family Court's Act. Consequently in the

matters which go to trial under Chapter IX of the Cr.P.C the
Magistrate shall take "all the evidence" by affidavit of
examination- in-chief produced in support of the application. He
shall consider the admissibility of the documents if any, filed
along with such affidavit under Section l4 of the F.C.A whether
or not, they are admissible under the Indian Evidence Act, 1872.
He shall then either himself record the cross examination and reexamination
or appoint a Court Commissioner to record such
cross examination and re- examination. He need not take the
evidence of only formal character on afflrdavit after the
amendment to the C.P.C on l",July, 2002. This would be in
keeping with the judgment of the Apex Court in the case of
Salem Advocate Bar Association. Tamil Nadu Vs. Union of
India 2005(5) ALL MR.(SC) 876.
35. We may further mention that the afhdavit of examination- inchief
required to be 'otaken " as evidence may be the affidavits
filed by the applicant as also the Respondents by way of the
affidavit in support of the application or the application itself if it
contains the solemn affirmation as to its truthfulness. In such
case duplication by a further affidavit of examination- in- chief
may be unnecessary and avoided. We may refer to the decision
in the case of Bar Council of Maharashtra and Goa Vs.
S.hamrao Vishnu Kunjir. A.I.R. 2006 Bombay. 167 by the
Division Bench of this Court to which one of us (Roshan Dalvi, J)
was the party. In that case after considering the object and
purpose of the salutary provision in the amended Order XVIII
13
Rule 4 of the C.P.C and after considering the aforesaid judgment
in the case of Salem Bar Association supra, the Division Bench
further considered the provision contained in Order VI Rule l5(4)
r.w. Section 26(2) of the C.P.C. Hence, where any pleading is
accompanied by an affidavit in support ofthe said pleadings, the
pleading itself can be treated as an affidavit of examination- inchief,
and be received in evidence as examination- in- chief of that
party. This would apply equally to the Applicants and
Respondents in an application under Chapter IX of the Cr.p.C.
36. We may also refer to the provisions relating to the service
under Sectior' 126{2) of the Cr.P.C. It may be mentioned that the
Respondent against whom the application is made is required to
be served with a copy of the said application. Chapter IX is
silent as to how the service is to be effected. The service of such
proceedings would not necessarily be required to be effected
upon the Respondents as they are effected upon the accused in
criminal trials. In view of the fact that the applications under
Chapter IX of Cr.P.C are of civil nature and analogous to
proceedings in the Family Courts, service of such applications
also need not be made as are made upon the accused in the
criminal trials. The service of these proceedings ate also
required to be made as per the provisions contained in the C.p.C.
Consequently as per the provision contained in Order V Rule 9 of
the C.P.C the Respondent to an application under Chapter IX of
Cr.P.C is required to be served as a Defendant in a Civil Suit by
service of a summon s either directly in person, by the Applicant

or by an Officer of the Court or by registered post
acknowledgment due or by speed post or such courrier service as
are approved by the High Court or the Court in which the
application is filed, being the Magistrate's Court as also by a fax
message or E-mail services provided by the Rules made by the
High Court. The Magistrates may therefore, allow service upon
the Respondent in any one of the aforesaid ways for all the
applications filed under Chapter IX of the Cr.P.C in their Courts.
37. Having considered at length the purpose, object and the
separate provisions of Chapter IXto Cr.P.C r.w. Chapter IVof the
Family Courts Act and Order XVII Rule 4 as also Order VI Rule
15(4) and Section 26(2) of the C.P.C, wo answer the question
under Reference in the affirmative. We may mention that we
have gone further than the said question and our answer shall
be read accordingly.
38. We are gratified to note that the learned Civil Judge (J.D.),
J.M.F.C has himself rightly interpreted the provisions of law
before made in the application, made under Chapter IX of
Cr.P.C. We direct that henceforth all the applications before all
the learned Magistrates trying applications under Chapter IX of
the Cr.P.C as also of the Family Courts in Maharashtra shall
follow the aforesaid procedure, keeping in view the amended
C.P.C.
39. Since this order lays down the most effective and expedient
procedure to be followed, a copy of this order shall be sent to all

the Magistrate Courts as well as all the Family Courts in the
State of Maharashtra by the Registrar- General of this Court
expeditiously.
40. The Reference is answered accordingly. The procedure
herein shall be followed by all the Magistrate Courts and Family
Courts forthwith.
(sMT. ROSHAN DALVT, J.) (DR. S. RADHAKRISHNAN, J.)
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