MANU/AP/1125/2003

IN THE HIGH COURT OF ANDHRA PRADESH

Criminal Revision Case No. 1865 of 2002
Decided On: 13.07.2003
Appellants: V.D. Solomon
Vs.
Respondent: V. Solomon Mary and Ors.
Hon'ble Judges/Coram:
CH. S.R.K. Prasad, J.
Counsels:
For Appellant/Petitioner/Plaintiff: P. James, Adv.
For Respondents/Defendant: M.V. Durgaprasad, Adv. and Public Prosecutor for the
Respondent No. 5
Case Note:
Criminal - Jurisdiction - Sections 126 and 284 of Criminal Procedure Code,
1973 (CrPC) - Whether Advocate Commissioner can be appointed to conduct
cross-examination in maintenance case? - Held, there is no justification in
this case to get witness examined, by Commissioner namely, parties since
they do not satisfy conditions under Section 284 of CrPC - But, even in such
cases, procedure under Section 126 of CrPC, has to be followed strictly,
namely, dispensing with presence of party and recording same in presence of
Counsel - In that view of matter, procedure contemplated under Section 126
of CrPC, is not followed - Acceptance of affidavit evidence as chief
examination is not in accordance with statutory provisions of Section 126 of
CrPC, and it goes contra to said provisions - Hence, this Court set aside entire
proceedings and order de nova enquiry by Family Court - Family Court shall
restore case to file and consider aspect of granting interim maintenance as
hardship is likely to be caused to respondents 1 to 4 due to set asiding
maintenance order - Family Court is directed to dispose of case within period
of six months while keeping in view of observations made by this Court and
also provisions of Section 126 of CrPC - Hence revision petition is disposed of
accordingly
ORDER
CH. S.R.K. Prasad, J.
1 . This criminal revision case is directed against the order passed in M.C. No. 25 of
2002 on the file of the Family Court. City Civil Court at Secunderabad, awarding
maintenance of Rs. 1,000/- to the wife being the first respondent herein and Rs. 750/-
each to the 3rd and 4th respondents and awarding Rs. 750/- towards maintenance from
the date of petition up to September, 2002 to the 2nd respondent herein.
2 . The facts that arise for consideration can be briefly stated as follows : The first
respondent herein is the wife of the revision petitioner and their marriage took place on
20.5.1976 as per Christian rites and customs and their marriage was consummated.
Respondents 2 to 4 are the children born to them. Respondents have claimed

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 maintenance against their father being the revision petitioner herein at the rate of Rs.
3,000/- per month to each petitioner alleging that the revision petitioner is working as
P.C. 7497 and drawing salary of Rs. 8,000/- per month. A petition under Section 32 of
Indian Divorce Act is said to have been filed whereunder the Court has directed the first
respondent to join the company of the revision petitioner. The wife is said to have
presented a complaint for the offence under Section 498-A, I.P.C, before the Women
Police Station, North Zone, Secunderabad, for alleged harassment and demanding of
dowry, etc. Another complaint in C.C. No. 28 of 2000 in the Court of XI Metropolitan
Magistrate, Secunderabad, has also been presented for taking away 1st and 4th
respondents. As the matters stood thus, M.C. No. 25 of 2002 has been taken up for trial
and respondents 1 to 4 are examined as P.Ws. 1 to 4 and the revision petitioner is
examined as R.W. 1. It appears that affidavits have been accepted towards chief
examination and Advocate Commissioner has been appointed to conduct cross-
examination. This Court has to consider whether such procedure can be adopted while
dealing with the case on criminal side.
3. Before adverting to the merits of the case, it is necessary to have a look at Section
10 of the Family Courts Act, 1984 and Rules, hereinafter referred to as the 'Act', reads
as under :
"Section 10. Procedure generally--(1) Subject to the other provisions of this Act
and the Rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908)
and of any other law for the time being in force shall apply to the suits and
proceedings (other than the proceedings under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974), before a Family Court and for the
purposes of the said provisions of the Code Family Court shall be deemed to be
a Civil Court and shall have all the powers of such Court.
(2) Subject to the other provisions of this Act and the Rules, the provisions of
the Code of Criminal Procedure, 1973 (2 of 1974) or the Rules made thereunder
shall apply to the proceedings under Chapter IX of that Code before Family
Court;.
(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court
from laying down its own procedure with a view to arrive at a settlement in
respect of the subject matter of the suit or proceedings or at the truth of the
facts alleged by the one party and denied by the other."
It is also necessary to refer Section 15 of the Act as under :
"Section 15. Record of oral evidence--In suits or proceedings before a Family
Court, it shall not be necessary to record the evidence of witnesses at length,
but the Judge, as the examination of each witness proceeds, shall, record or
cause to be recorded, a memorandum of the substance of what the witness
deposes, and such memorandum shall be signed by the witness and the Judge
and shall form part of the record."
Hence, it is clear from Section 10 of the Act that the provisions of the Code of Criminal
Procedure, 1973 or the Rules made thereunder shall apply to the proceedings under
Chapter IX of the Code before a Family Court.
4. The learned Counsel appearing for the revision petitioner contends that Clause (3) of
Section 10 of the Act permits to lay down its own procedure to be followed. I
respectfully disagree with the said contention. It is clearly stated that the procedure has

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 been laid down by the Family Court for settlement can be followed in respect of suit or
proceedings or when the truth of the facts alleged by the one party and denied by the
other. Section 16 of the Act reads as follows :
"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 proceedings summon and examine any such person as
to the facts contained in his affidavit."
It contemplates of recording of evidence of a formal character only by affidavit. This
Court is not concerned with the civil proceedings. The case involved is one of
maintenance and the Family Court is bound to try the case as per the procedure
mentioned under Section 126, Cr.P.C. Section 126, Cr.P.C, reads as follows :
"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."
5. It is clear from Section 126, Cr.P.C., that evidence has to be recorded in the presence
of the person against whom an order for payment of maintenance is proposed to be
made. Only when personal attendance is dispensed with, the evidence is to be recorded
in the presence of the lawyer and it has to be recorded in the manner prescribed in the
summons cases. The provisions of Section 126, Cr.P.C., is express and explicit. It does
not contemplate of receiving of evidence by the Family Court by means of affidavit
when express provisions are available prescribing the procedure. The provisions of the
Code of Civil Procedure cannot be adopted or followed in this case. The procedure that
has to be followed is clearly mentioned in Section 126, Cr.P.C. The acceptance of

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 affidavit evidence is not sufficient compliance within the meaning of Section 126,
Cr.P.C. and the entire proceedings conducted by the Family Court are in violation of
Section 126, Cr.P.C. When the proceedings are not conducted as per provisions of
Section 126, Cr.P.C., they are liable to be set aside and the matter is liable to be sent
back to the Family Court to dispose of the matter in accordance with the provisions of
Section 126, Cr.P.C. The Family Court shall try the case as prescribed in summons cases
while recording the evidence in the presence of the person against whom an order for
payment of maintenance is proposed to be made, unless his presence is dispensed with.
He shall record the same and the evidence shall be recorded in the presence of his
lawyer. Moreover, the examination of witness by Commission is not contemplated
except in cases adumbrated under Section 284, Cr.P.C. There is no justification in this
case to get the witness examined, on Commission namely, parties since they do not
satisfy the conditions under Section 284, Cr.P.C. But, even in such cases, the procedure
under Section 126, Cr.P.C., has to be followed strictly, namely, dispensing with the
presence of party and recording the same in the presence of the Counsel. In that view
of the matter, the procedure contemplated under Section 126, Cr.P.C., is not followed.
The acceptance of affidavit evidence as chief examination is not in accordance with the
statutory provisions of Section 126, Cr.P.C., and it goes contra to the said provisions.
Hence, I set aside the entire proceedings and order de nova enquiry by the Family Court
once again. The Family Court shall restore the case to file and consider the aspect of
granting interim maintenance as the hardship is likely to be caused to the respondents 1
to 4 herein due to set asiding the maintenance order. The Family Court shall take into
consideration of maintenance amount already paid when suitable application is
presented by respondents 1, 3 and 4 for granting interim maintenance. The Family
Court is directed to dispose of the case within a period of six months while keeping in
view of the observations made by this Court supra and also the provisions of Section
126, Cr.P.C.
The criminal revision case is ordered accordingly.

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