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Evidence by way of affidavit can be given in proceedings u/s 125 Cr.P.C., presence of adverse party during evidence is not compulsory; Delhi High Court

The Delhi High Court on April 30, 2020 {AJAY GUPTA v. SONIA GUPTA} held if the provisions of Chapter IV of the Family Courts Act, 1984 (hereafter ‘the FC Act’) are read, it would be at once clear that sub-section (3) of Section 10 of the FC Act must be read in an expansive manner and a Family Court would not be precluded from laying down a procedure, which is in variance with the procedures prescribed under the Cr.PC, to deal with the subject matter before it.

The question that arose for consideration before the HC was whether a Family Court can adopt a procedure in variance with the procedure for taking evidence as is prescribed under Section 126 Cr.PC read with Section 273 of the Cr.PC.? The Family Court has answered - it can adopt the procedure at variance i.e. by taking evidence by way of affidavit. The present Criminal Revision Petition was therefore filed before the HC.

It is the petitioner’s case before the HC 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.

It was held by the HC that Section 12 of the FC Act entitles the Family Court to seek assistance of medical experts or other persons as the Court may think fit, for the purposes of discharging its functions under the FC Act. It was held that Section 13 of the Act contains a non obstante clause and provides that no party to a suit or proceedings would be entitled as a matter of right to be represented by a legal practitioner.

The Court held that Section 14 of the FC Act is also couched in very wide terms. It was held that it enables the Family Court to receive in evidence any report, statement, documents, information or matter that may in its opinion assist it to deal effectively with the dispute. It was also held that Section 15 of the FC Act provides that it would not be necessary to record evidence of witnesses at length but the judge shall record a memorandum of substance of what the witness has deposed.

The High Court observed that provisions of Section 16 of the FC Act must be considered in the light of the scheme of the other provisions of chapter IV of the FC Act. It was held, therefore, it must be construed as enabling the Family Court to accept formal evidence by way of affidavit and not limiting the discretion of the Court to evolve its own procedure including accepting evidence, which is otherwise not of a formal character, on affidavit.

The HC held that Section 20 of the FC Act enacts a non obstante clause and provides that provisions of the said Act would have the effect notwithstanding anything inconsistent contained in any other law for the time being in force or any instruction having effect by virtue of any law. It was held, thus, by virtue of Section 20 of the FC Act, the provisions of the FC Act, have an overriding effect and in case of any repugnancy between the provisions of the FC Act and any other law, the provisions of the FC Act are required to be given effect to. 

In view of the above, it was held by the HC that the Family Courts are required to follow the procedure as set out in the FC Act for determining the matters placed before it notwithstanding the procedure as may be stipulated in the Cr.PC.

The HC, therefore, found no infirmity with the decision of the Family Court in accepting evidence by way of an affidavit; permitting the respondent to tender the same in her examination-in-chief; and providing an opportunity to the petitioner to cross-examine the respondent.

By the impugned order, the Family Court, inter alia, rejected the petitioner’s application under Section 126 of the Code of Criminal Procedure, 1973 praying that the evidence filed by the respondent by way of an affidavit be struck off and the respondent be directed to examine herself in accordance with the procedure prescribed under Cr.PC.

The Criminal Revision Petition was, accordingly, dismissed by the High Court.

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