Maintenance proceedings under Section 125 CrPC cannot rely on chief-examination affidavits, Karnataka High Court rules

The petitioner-husband challenged the order dated 1 March 2024 passed by the Family Court, Davanagere, in Crl. Misc. No. 287/2021 under Section 125 Cr.P.C.

The respondent-wife and minor daughter had claimed maintenance of ₹30,000 and ₹20,000 per month, respectively. The Family Court, after considering the evidence of PW-1 and RW-1 and Exhibits P-1 to P-4, awarded ₹6,000 per month to the wife and ₹4,000 per month to the daughter

The petitioner disputed his liability and contended, among other things, that the wife was earning and that the proceedings were procedurally invalid because the parties’ chief-examination evidence had been filed by affidavit rather than recorded orally before the Court

Both sides had filed affidavits in lieu of chief examination.

Whether witnesses in proceedings under Section 125 Cr.P.C. may lead their evidence-in-chief by filing affidavits instead of having their evidence recorded in the manner prescribed for summons cases

Whether the Family Court’s order granting maintenance could be sustained when it was based on evidence received through such affidavits.

Section 126(2) Cr.P.C. mandates that evidence in proceedings under Section 125 Cr.P.C. shall be recorded in the presence of the person against whom maintenance is sought, or his pleader, and in the manner prescribed for summons cases.

The procedure for summons cases under Chapter XX Cr.P.C. does not contemplate the filing of affidavits in lieu of chief examination.

Section 10(2) of the Family Courts Act, 1984 requires the procedure under the Cr.P.C. to be followed in Chapter IX maintenance proceedings before a Family Court, while Section 10(3) permits the Family Court to devise its own procedure for facilitating settlement, not for disregarding the statutory manner of recording evidence.

The Court followed the Division Bench decision in Gayathri v. Ramesh, which held that affidavit evidence is unknown to summons-case proceedings under Section 125 Cr.P.C.

The contrary view in Zaheeda v. Rajmohammed was not followed to the extent it permitted such affidavits, as it was a decision of a learned Single Judge and was inconsistent with the statutory procedure and the binding Division Bench ruling.

The High Court held that the nature of Section 125 proceedings as a speedy social-justice remedy did not authorise departure from the express procedural requirement in Section 126(2) Cr.P.C.

Since the proceedings were instituted under Chapter IX Cr.P.C., Section 10(2) of the Family Courts Act required the Family Court to follow the Cr.P.C. procedure, including the procedure applicable to summons cases.

Section 10(3) could not be invoked because the Family Court had not devised a procedure to facilitate settlement; it had adjudicated the parties’ claims on merits after relying on the affidavits as substantive chief-examination evidence.

Consequently, the affidavits filed by PW-1 and RW-1 were received contrary to law, and the maintenance order founded on that evidence could not be legally sustained, irrespective of the fact that the petitioner himself had adopted the same procedure.

It allowed the revision petition, set aside the Family Court’s order dated 1 March 2024, and directed the Family Court, Davanagere, to restore the case, record the evidence of both parties in accordance with Section 126 Cr.P.C., and decide the matter afresh.

Pending disposal, the petitioner was directed to pay interim maintenance of ₹3,000 per month each to the wife and minor daughter from the date of filing of the maintenance case. The Family Court was granted liberty to modify the interim amount upon proof of changed circumstances.