Sau. Ratnaprabha Prakash Jawade v. Prakash Dhyanobaji Jawade

3 revision application no.14.22.odt..odt 2 2. ADMIT. Taken up for final disposal with the consentof learned counsel for the parties.3. By preferring present revision application, theapplicant-wife has challenged the judgment and order dated01.03.2023 passed in Petition No.E-159/2020 by the FamilyCourt, Yavatmal rejecting the application for grant of maintenanceto the applicant as the learned Family Court found that applicantfailed to adduce any cogent and satisfactory evidence to establishthat she has been refused or neglected to maintain by the non-applicant.4.Brief facts which are necessary for the disposal of theapplication as under:-The marriage between the applicant and non-applicant was solemnized on 15.05.1985. From the said wedlockshe begotten one son and one daughter. Now both the childrenhave attended the age of majority. It is alleged by the applicantthat since beginning of the marriage the non-applicant wasraising quarrels with her on trivial issues.. The non-applicant wasmaintaining extra marital affairs. He was abusing and beating the 3 revision application no.14.22.odt..odt 3 applicant and children under the influence of liquor. The non-applicant was working as Class-IV employee in Zilla Parishad,Yavatmal. He has retired in June 2018. Even after retirement hisconduct has not been changed. According to the applicant afterretirement, the non-applicant had started residing with anotherlady at Arni Road, Yavatmal. He was asking the applicant tovacate the Zilla Parishad residential quarter. Thus, the non-applicant had neglected and refused to maintain the applicant andtherefore, she had lodged complaint at Awadhootwadi PoliceStation, Yavatmal on 27/09/2018. Thereafter she also lodged thecomplaint to Superintendent of Police Yavatmal on 12/11/2018.It is further her contention that she does not have any source ofincome and she is unable to maintain herself. The non-applicanthad left Zilla Parishad residential quarter and now Zill ParishadAuthorities are asking the applicant to vacate the quarter.According to the applicant, the non-applicant had received Rs.25,00,000/- as retirement benefit and he is getting Rs. 20,000/-per month as pension. Thus, he has sufficient means to pay themaintenance. 3 revision application no.14.22.odt..odt 4 5.This application is strongly opposed by the non-applicant by filing his written statement. He has admitted therelationship with the applicant. But he denied all the adverseallegations levelled against him. According to him, after 34 yearsof marriage the applicant has made false allegations against himat the last stage of his life. According to him, he is residing at hisnative place at village Barad Khopada and doing labour work.Applicant was not ready to leave the urban life and therefore, sheherself withdrawn her from the company of non-applicant andafter retirement also she is residing in government quarterillegally. He further stated that he has provided good education toboth the children as per his capacity as there was no refusal andneglect on his part and therefore, he is not liable to pay themaintenance. He denied that he is having extra marital affairswith another lady.6.After recording the evidence of the applicant as wellas non-applicant learned Family Court observed that it becameclear that applicant and non-applicant stayed together tillretirement of the non-applicant. Non-applicant has vacated thequarter allotted to him as his service tenure was over. It is further 3 revision application no.14.22.odt..odt 5 observed by the Family Court that as far as refusal and neglect isconcerned, there is no evidence adduced by the applicant whichwill inspire the confidence as refusal and neglect itself is notproved therefore, she is not entitled for any maintenance andthereby dismissed the petition.7.Being aggrieved and dissatisfied with the said findinggiven by the Family Court, present revision application is preferredby the applicant.8.First and foremost submission of the learned counselfor the applicant was that the Family Court has permitted theparties to adduce the evidence on affidavit. Thus, Family Courterred in taking recourse to Order XVIII Rule 4 of CPC for recordingof evidence on affidavit as reading of Sub-Section (2) of Section10 of the Family Court Act (for short, ‘the Act of 1984’) makes itabsolutely clear that the provisions of CrPC and Rules thereundershall apply to proceedings under Chapter IX of that Code andtherefore, the Family Court has committed illegality by giving goby to the procedure that is contemplated by the statute. Theanother contention raised by the applicant was that despite the 3 revision application no.14.22.odt..odt 6 evidence is adduced that it was the non-applicant who has left thequarter and withdrawn himself from the company of the applicantand thereby refused and neglected her to maintain and therefore,she is entitled for maintenance. It is the further submission thatnon-applicant is government employee working in Zilla Parishadinitially drawing salary and after his retirement he receivedpensionary benefits as well as pension of Rs.20,000/- per month.Thus, he is having sufficient means to pay maintenance. In viewof that, revision application deserves to be allowed by grantingmaintenance to the applicant.9.Per contra learned counsel for the non-applicantsubmitted that in view of Section 10(3) of the Family Court Actwhich postulates that nothing in Section 10(1) shall prevent theFamily Court from laying down its own procedure so as to dealwith the matter in issue before it and therefore, no illegality iscommitted by the Family Court. It is submitted by him that theAct of 1984 is not only a special legislature but also has beenenacted subsequent in point of time than CPC. Hence, it would bewrong to say that the Family Court has committed an error byaccepting the evidence on affidavit. He has submitted that a 3 revision application no.14.22.odt..odt 7 Family Court is well within its powers to take into evidence anymaterial, which in the judicial discretion of such Family Court,may be essential for effectively adjudicating a lis before it whetheror not such material fulfils the requirements of Indian EvidenceAct, 1872. However, while exercising such discretion, the FamilyCourt ought to bear in mind that receiving of such material byway of evidence does not violate the basic principles of legalsystem. Thus, though CPC is not applicable within its full rigoursto the proceedings but Family Court is entitled to lay down itsown procedure as warranted by facts and circumstances of givencase and therefore, no illegality is committed by the Family Court.10.After hearing both the sides and contentions raised byapplicant as well as non-applicant, first I would like to advert theissue whether applicant is entitled for grant of any maintenance.In support of the contention applicant entered into the witnessbox and filed affidavit of examination in chief stating that hermarriage was performed with the non-applicant on 15.05.1985.After marriage she resumed cohabitation. She begotten one sonand one daughter from the said wedlock. Non-applicant is servingin Zilha Parishad, Yavatmal and was drawing salary. Now he is 3 revision application no.14.22.odt..odt 8 retired. It is alleged by her that since marriage she was subjectedfor the ill treatment by the present non-applicant. However, shetolerated the entire ill treatment. She further alleged that non-applicant was addicted to bad vices like drinking liquor and usedto assault her and her children. Thus, he has refused andneglected her to maintain and therefore, she constrained to fileapplication for grant of maintenance. During her cross-examination she admits that non-applicant is now retired fromservice. After his retirement also she is residing along with herchildren in Zilla Parishad quarter. She further admits that he hasnot received any notice to vacate quarter by her name. She statesthat as non-applicant is having extra marital relations andtherefore, she is unable to stay along with him. She specificallyadmits that till non-applicant retired from service, she wasresiding along with him. Thus, her evidence specifically states thatshe resided along with non applicant till he retires. As far asrefusal and neglect is concerned, her evidence shows that till non-applicant’s retirement she was residing with him and he wasmaintaining her. 3 revision application no.14.22.odt..odt 9 11.To counter the evidence of the present applicant non-applicant also entered into witness box and he specifically allegedthat till his retirement applicant was residing along with him.After retirement he went at his native place. As applicant was notwilling to stay in small village, she is still residing in the quarter.Despite he is served with the notice to vacate quarter from ZillaParishad, it was applicant who is not vacating the quarter andtherefore, amount is deducted from his pensionary benefits also.He specifically stated that as applicant does not want to live insmall village along with him, after his retirement she has notjoined his company. His cross examination shows that his pensionis deposited in his account. He also states that since the date ofmarriage till he retires from service he was staying along with theapplicant. He also accepts the liability of his children and liabilitytowards their education. He specifically admits that after theretirement he has received pensionary benefits of Rs.12 Lakhs buthe has not incurred expenses towards his wife or children.12.On the basis of the above said evidence applicantclaimed that she is refused and neglected by the present non-applicant and therefore, she is entitled for grant of maintenance. 3 revision application no.14.22.odt..odt 10 Preliminary stand of the non-applicant is that applicant wasresiding with him till his retirement. After his retirement hevacated the Zilla Parishad quarter and went to stay at his nativeplace and therefore applicant has not joined him as she does notwant to stay in small village by leaving the urban life. Thiscontention is to be taken into consideration in the light ofadmission given by the applicant also. She has also admitted thattill non-applicant retires she was residing alongwith him.Admittedly, there was no previous complaint as to the ill treatmentat the hands of the non-applicant. Admittedly, there is noevidence adduced on record to show that he was addicted to badvices like drinking liquor.13.Coming to the object of Section 125 of Code is toprovide summery remedy to save dependants from destitutionand vagrancy, and thus to serve social purpose apart from anindependent obligation of the parties under their personal law.Since the object is to prevent vagrancy or destitution by means ofsummery remedy before a Magistrate, jurisdiction is preventiverather than remedial ambiguity. Foundation of an order underSection 125 is the neglect or refusal of the opposite party maintain 3 revision application no.14.22.odt..odt 11 his wife, child or parents. “Refuse means a failure to maintain ordenial of the obligation to maintain after demand” “Neglect onthe other hand means a default or omission to maintain in theabsence of demand. Neglect or refusal may be implied from theconduct of a party and did not be a formal refusal. Refusal ofneglect on the part of the husband may be proved not only byexpressed words but also by conduct. Neglect or refusal referredin Section 125(1) of the Cr.P.C. is only obligation to maintain hiswife. If no maintenance is filed either negligently or deliberately,Section 125(1) comes into play. The reasons for non-payment formaintenance is relevant under Section 125 (1). Neglect or Refusalto maintain exists if there is non-payment of maintenance,whether deliberately or negligently whatever be the cause.Neglect or refusal to maintain exists whenever there is breach ofobligation to maintain whether negligently or deliberately.Whether there is justifiable and sufficient reasons or not forseparate residence. 14.A husband can successfully resists the claim underSection 125(1) for maintenance of a wife residing separately onlyif he comes within the sweep of second proviso to Section 125(3) 3 revision application no.14.22.odt..odt 12 of Cr.P.C. Where the wife resides separately and husband wants toresists the claim for maintenance on the ground he must necessarymake an offer satisfying second proviso to 125(3) Cr.P.C. tomaintain her on the condition that she lives with him. In spite ofsuch offer made by him if she refuses to live with him then andthen only the Magistrate have a duty to consider the grounds ofrefusal stating by her. If the Magistrate is satisfied that there issuch a bona fide offer on the part of the husband, he may still passan order under Section 125 of the Cr.P.C. only if there is a justground offered by the wife to justify separate residence. No ordershall be granted in her favour if there is no just ground. Thelanguage in which second proviso to Section 125 of Cr.P.C. iscouch, according to me a crucial significance. When the claim isfiled husband has offered to maintain the wife on the conditionthat she lives with him. Only if she refuses that offer then it canbe said that she refused to live with him. Only then need theCourt requires to consider that offer can be said to be refused tolive with him. Only the need the court considers the reasonsadvanced by her. An offer and refusal at some point of time in thedecision past may not attract the second proviso to Section 125(3)of Cr.P.C. 3 revision application no.14.22.odt..odt 13 15.Thus, it is evident from the language of Section 125which also stipulates that both offer and refusal going by wordsoffers and refuses in simple language used in second proviso toSection 125 Cr.P.C. makes it clear that such offer and refusal is notwith the events of the past and must be in present.16.The wife who without sufficient reasons refuses tolive with her husband is not entitled to maintenance under Section125 of Cr.P.C. Neither in subsection 4 which deals with such asituation nor in subsection 5 the Court attends to enumerate whatwould be the sufficient cause for a wife/claimant to refuse to livewith her husband and yet succeed in her claim for maintenance. Itis left to be the objectivity determining by the Court having regardto the circumstance of a case and social ideas and backgroundfacts. The legislature has not exhaustively enumerated the groundwhich would furnish the sufficient cause for non-payment ofmaintenance order under subsection (1) beyond the threegrounds which are mentioned in subsection (4). Undersubsection (3) if the wife claimant has just ground for refusal shewould be entitled to have an order of maintenance enforced 3 revision application no.14.22.odt..odt 14 notwithstanding the offer of husband to maintain her on conditionof living with him.17.Torture or ill treatment in the husband house wouldbe sufficient for refusal by the wife claimant to live with thehusband even though husband may not be guilty personally.Where the wife cannot reasonable hope to live with dignity withher husband she may refused to live with him. The offer must bebona fide and same should not having with object to escaping theobligation to pay maintenance. The burden that the wife isrefusing to live with him is to be discharged by the husband butwhen once that is proved it is for the wife to show that there arereasons for her living apart from the husband. The object ofSection 125 is to arm wife in difficulty with the cause of action toget maintenance from her erring husband. If a person offers tomaintaining his wife with condition of her living with him andshe refused to live with him. The Magistrate may consider theground of refusal as stated by wife/claimant and make an orderunder Section 126 of the Code notwithstanding such offer if hesatisfied that there is a just ground for doing so. 3 revision application no.14.22.odt..odt 15 18.In the light of the well settled legal position if theevidence of the applicant is taken into consideration which showsthat she stayed along with non-applicant till he retires. As far asill treatment is concerned, admittedly, there is no evidence toshow that despite there was continuous ill treatment she wasresiding along with the present non-applicant. On the contrary,evidence on record sufficiently shows that they resided togethertill non-applicant’s retires from the service. After retirement hewent to his native place and the applicant has not joined himwhich is sufficient to infer that as she was not willing to stay at hisnative place of the non-applicant and therefore, she withdrawnherself from the company of the present non-applicant. The FamilyCourt has rightly considered these admissions that in absence ofevidence of refusal and neglect the non-applicant is not liable topay maintenance. As far as allegations regarding illicit relations ofthe non-applicant is concerned, except bare words there isabsolutely no evidence to substantiate the allegation that as thenon-applicant is residing along with other lady and therefore,there is sufficient reason for the applicant to stay separately. 3 revision application no.14.22.odt..odt 16 19.Admittedly, direct evidence would not be available toprove the fact that non-applicant is leading adulterous life butthen there has to be some material on record to prove that he isleading adulterous life by staying along with another lady. Thus, inthe absence of any material as to the illicit relations of the non-applicant and refusal and neglect on the part of the non-applicant,learned Family Court has rightly held that for 36 years theapplicant and non-applicant stayed together. There was noprevious complaint by them against each other as to the illtreatment as well as to the refusal and neglect by the non-applicant No.2 therefore, there is substance in the contention ofthe non-applicant that as she is not willing to reside at his nativeplace and therefore, she has not joined his company is sustainable.20.Coming to the another ground raised by the applicantthat procedure adopted by the Family Court is erroneous and onthat ground revision petition deserves to be allowed. In supportof his contention learned counsel for the applicant placed relianceon the decision of Karnataka High Court in the case of Gayithri vs.Ramesh reported in II (1993) DMC 197, and Anil AmbashankarJoshi vs Reena Anil Joshi reported in [2016 (6) Mh.L.J. (cri) 3 revision application no.14.22.odt..odt 17 597 ]. Whereas, learned counsel for the non-applicant placedreliance on the decision of Delhi High Court in Criminal RevisionPetition No.523/2019 and Criminal M.A.No.9437/2019.21.While adverting the issue raised by learned counselfor the applicant, it would be relevant to refer to Section 126 ofthe Cr.P.C. and same is set out below: Proceedings under section 125 may be taken against anyperson in any district— 1.where he is, or2.where he or his wife resides, or3.where he last resided with his wife, or as the case may be,with the mother of the illegitimate child. All evidence tosuch proceedings shall be taken in the presence of theperson against whom an order for payment of maintenanceis proposed to be made, or, when his personal attendance isdispensed with in the presence of his pleader, and shall berecorded in the manner prescribed for summons-cases;Provided that if the Magistrate is satisfied that the personagainst whom an order for payment of maintenance isproposed to be made is wilfully avoiding service, or wilfully 3 revision application no.14.22.odt..odt 18 neglecting to attend the Court, the Magistrate may proceedto hear and determine the case Ex-parte and any order somade may be set aside for good cause shown on anapplication made within three months from the date thereofsubject to such terms including terms as to payment of coststo the opposite party as the Magistrate may think just andproper. The Court in dealing with applications under section 125shall have power to make such order as to costs as may be just.The language of subsection 2 of Section 126 is unambiguous innature and all evidence relating to proceeding under Section 125of CrPC is required to be taken in presence of the person againstwhom the order of payment of maintenance is proposed to bemade. It is also relevant to refer Section 273 of Cr.P.C. whichreads as under:-273. Evidence to be taken in presence of accused.- Except as otherwise expressly provided, all evidence taken in thecourse of the trial or other proceeding shall be taken in thepresence of the accused, or, when his personal attendance isdispensed with, in the presence of his pleader.[Provided that 3 revision application no.14.22.odt..odt 19 where the evidence of a woman below the age of eighteen yearswho is alleged to have been subjected to rape or any other sexualoffence, is to be recorded, the court may take appropriatemeasures to ensure that such woman is not confronted by theaccused while at the same time ensuring the right of cross-examination of the accused.] Explanation. - In this Section,"accused" includes a person in relation to whom any proceedingunder Chapter VIII has been commenced under this Code. Thus, plain language of Section 273 Cr.P.C. also mandates thatexcept as language expressively provided into ‘all evidence in thecourse of trial Court or other proceeding required to be taken inpresence of the accused on when his/her attendance is dispensedwith in presence of his /her pleaded. In view of the expressprovision of Section 126 of the Cr.P.C., there can be no controversythat a Magistrate while dealing with the application under section125 of the Cr.P.C. is required to follow the procedure as prescribedin Section 126 of the Cr.P.C. and all evidence is required to betaken in presence of the person against whom an order ofmaintenance is proposed to be made. However, the proceedingsin the present case are not before Magistrate but before FamilyCourt established under Section 3 of the Family Court Act, 1984. 3 revision application no.14.22.odt..odt 20 Chapter 4 of the Family Court Act, 1984 contains provisionsrelating to the procedure to be followed by the Family Courts.Section 10 of Family Court Act provides for the procedure to begenerally followed. Section 10 of the Family Court Act is reproduced as under:-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 thesuits and proceedings [other than the proceedings under ChapterIX of the Code of Criminal Procedure, 1973 (2 of 1974)] before aFamily Court and for the purposes of the said provisions of theCode, a Family Court shall be deemed to be a civil court and shallhave 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 of1974) or the rules made thereunder, shall apply to theproceedings under Chapter IX of that Code before a Family Court.(3) Nothing in sub-section (1) or sub-section (2) shallprevent a Family Court from laying down its own procedure with aview to arrive at a settlement in respect of the subject-matter of 3 revision application no.14.22.odt..odt 21 the suit or proceedings or at the truth of the facts alleged by theone party and denied by the other."22.Thus in view of sub section (2) of section 10 ofFamily Courts Act the provisions of Cr.PC or the Rules madethereunder, are applicable to the proceedings under Chapter IX ofCr.PC. However, sub-section (3) of Section 10 of the FC Actcontains a non obstante provision and expressly provides thatnothing in sub-section (1) or sub-section (2) of Section 10 of theFC Act would prevent a Family Court from laying down its ownprocedure, inter alia, with a view to arrive at the truth of the factsalleged by one party and denied by the other. It is also relevant torefer to Section 14 of the FC Act, which expressly enables a FamilyCourt to receive in evidence any report, statement, documents,information or matter that may, in the opinion of the Family Court,assist it to deal with the dispute irrespective of whether suchevidence is otherwise relevant or admissible under the IndianEvidence Act, 1872.23. Section 16(1) of the FC Act expressly provides thatthe evidence of a formal character may be given in an affidavit 3 revision application no.14.22.odt..odt 22 and may be read in evidence in any suit or proceedings before aFamily Court. Sub-section (2) of Section 16 of the FC Act alsoenables the Family Court to examine any person as to the factscontained in his affidavit, 24. Section 20 of the FC Act enacts a non obstante clause andprovides that provisions of the said Act would have the effectnotwithstanding anything inconsistent contained in any other lawfor the time being in force or any instruction having effect byvirtue of any law. Thus, by virtue of Section 20 of the FC Act, theprovisions of the FC Act, have an overriding effect and in case ofany repugnancy, between the provisions of the FC Act and anyother law, the provisions of the FC Act are required to be giveneffect to.25. Thus, in view of the above, the Family Courts are requiredto follow the procedure as set out in the FC Act for determiningthe matters placed before it notwithstanding the procedure as maybe stipulated in the Cr.PC. 3 revision application no.14.22.odt..odt 23 26. Thus, sub-section (3) of Section 10 of the FC Act expresslyprovide that a Family Court is not precluded from laying down itsown procedure notwithstanding anything contained in Sub-section(1) sub-section (2) of Section 10 of the said Act. 27.Section 10(1) of the 1994 Act empowers a FamilyCourt to be a civil Court for the purpose of exercising all powersvested in a Civil Court and the provisions of CPC have been madeapplicable to the proceedings before the Family Court, but at thesame time it has been expressly stipulated in Section 10(1) of the1994 Act itself that such application of CPC shall be “subject tothe other provisions of this Act and the rules.” Section 10(3) of theAct, 1984 act postulates that nothing in Section 10 (1) shallprevent the Family Court from laying down its own procedure soas to dealing with the matter in issue before it that is for arrival atsettlement in respect of lis of any suit /proceeding before it or todetermine the truthfulness of the facts in dispute. This provisionby itself shows that the legislature while broadly mandating theapplication for CPC to proceeding before Family Court has vesteddiscretion in favour of such Family Court to devise a procedure onits own. 3 revision application no.14.22.odt..odt 24 28.As observed earlier in view of Section 20 the FamilyCourt Act have an overriding effect which states that theprovisions of this act shall have effect notwithstanding anythinginconsistent therein contained in any other law for the time beingin force or any instruction having effect by virtue of any law.29. The golden rule of interpretation laid down byHon’ble Apex Court in the case of Chief Justice Of A.P. & Anr vsL.V.A. Dikshitulu & Ors reported in MANU/SC/0416 1978 it is heldthat “the primary principle of interpretation is that aconstitutional or statutory provision should be construed"according to the intent of they that made it"(Coke). Normally,such intent is gathered from the language of the provision. If thelanguage or the phraseology employed by the legislation is preciseand plain and thus by itself, proclaims the legislative intent inunequivocal terms, the same must be given effect to, regardless ofthe consequences that may follow. But if the words used in theprovision are imprecise, protean, or evocative or can reasonablybear meaning more than one, the rule of strict grammaticalconstruction ceases to be a sure guide to reach at the real 3 revision application no.14.22.odt..odt 25 legislative intent. In such a case, in order to ascertain the truemeaning of the terms and phrases employed, it is legitimate forthe Court to go beyond the arid literal confines of the provisionand to call in aid other well-recognised rules of construction, suchas its legislative history, the basic scheme and framework of thestatute as a whole, each portion throwing light on the rest, thepurpose of the legislation, the object sought to be achieved, andthe consequences that may flow from the adoption of one inpreference to the other possible interpretation”. 30.In another judgment National Insurance CompanyLimited vs Laxmi Narayan Dhut reported in 2007(3) SCC 700 theApex Court has held thus:- “Golden Rule" of interpretation ofstatutes is that statutes are to be interpreted according togrammatical and ordinary sense of the word in grammatical orliberal meaning unmindful of consequences of such interpretation.It was the predominant method of reading statutes. More oftenthan not, such grammatical and literal interpretation leads tounjust results which the Legislature never intended. The goldenrule of giving undue importance to grammatical and literalmeaning of late, gave place to 'rule of legislative intent'. The world 3 revision application no.14.22.odt..odt 26 over, the principle of interpretation according to the legislativeintent is accepted to be more logical.31.Thus when a question arises as to the interpretationto be put on an enactment, what the court has to do is to ascertain" the intent of them that make it", and that must of course begathered from the words actually used in the statute. That,however, does not mean that the decision should rest on a literallyinterpretation of the words used in disregard of all othermaterials. "32.In view of the above rule of interpretation as held bythe Hon’ble Apex Court in the case Dikshitulu case andLaxminarayan Dhut case when applied in the present scenario tothe provisions of 1984 Act shows that language as alsophraseology employed in the legislature in question is precise inunambiguous and unequivocal. Legislative intent, that CPC doesnot mandatorily apply in full force to proceeding under 1984 Actis clearly reveals from bare reading of the legislation in question.Section 10(3) of the 1984 Act postulates that nothing in Section10(1) shall prevent the Family Court from laying down its own 3 revision application no.14.22.odt..odt 27 procedure so as to deal with the matter in issue before it. Thisprovision by itself shows that legislature while broadly mandatingfor application for CPC to the proceeding before a Family Court,has vested discretion in favour of such Family Court to revise aprocedure on its own. The provisions of Section 10(1) andSection 10(3) of 1984 Act reflect the clear legislative intent to theeffect that CPC does not apply compulsorily to proceedings beforeFamily Court. The 1984 Act is a special law brought by inlegislation exclusively for adjudicating the matrimonial disputes.CPC is a general procedure law for civil litigations. CPC wasenacted in the year 1908 whereas the Family Court Act has beenenacted in the year 1984. Thus, it is clear that 1984 Act is notonly a special legislation but has also been enacted subsequentlyin point of time than CPC. Hence it would be pragmatic approachas per the principle laid down by the Apex Court while dealingwith the interpretation of the law. 33.From the above discussions the following principlesof law can be culled out. (I) Sub Section (3) to Section 10 readwith Section 20 of the Family Court Act contains non-obstanteclause and gives supremacy to the provisions of the said Act, vis-a- 3 revision application no.14.22.odt..odt 28 vis the provisions of other enactments/Acts. (II) CPC. 1908 is notapplicable with its full rigours to proceedings under the FamilyCourts Act, 1984. In other words a Family Court is entitled to laydown its own procedure, as warranted by facts/circumstances of agiven case and it is not bound by the procedural rigours of CPC1908, However, while devising its such own procedure the FamilyCourt ought to ensure that such procedure is in consonance withthe basic cannons of the jurisprudence such as principles ofnatural justice, good conscience and equity. (III) Family Court iswell within its powers to take into account any material, which inthe judicial discretion of Such Family Court, may be essential foreffectively adjudicating a lis before it whether or not such materialfulfils the requirements of Indian Evidence Act, 1872. However,while exercising such discretion, the Family Court ought to bear inmind that receiving of such material by way of evidence does notviolate the basic principles of our legal system.34.It is true that procedure adopted while conductingmatters under section 125 is under section 126 of the Code ofCriminal Procedure. However, one has to understand that mattersunder section 125 are not purely criminal of nature, but 3 revision application no.14.22.odt..odt 29 proceedings are of quasi civil nature, as issue ofmaintenance to wife is involved and therefore, the respondent isnot an accused and statement under section 313 is not recordedwhile dealing under section 125. So, the proceedings undersection 125 are not treated as purely and strictly criminalproceedings, though the power to issue warrantis given to the Court.35. Chapter IV of the Family Court Act, 1984 lays down theprocedure which is to be followed by the Family Court. It canfollow such procedure as it may deem fit. Section 9 is exclusivelyabout the settlement and section 10 is about the procedure whichis to be followed generally. Under section 10(1) of the FamilyCourt Act, the Family Court shall be deemed to be a Civil Courtand shall have all the powers of such Court dealing with all thematters except the matters covered under Chapter IX of the Cr. P.C.for grant of maintenance under section 125 ofthe Cr. P.C. Section 10(2) states that for the purpose of conductingthe matters of maintenance under section 125 of Cr. P.C., theprovisions of Cr. P.C. and rules made thereunder shall apply to theproceedings before the Family Court. It means that the Family 3 revision application no.14.22.odt..odt 30 Court while dealing with the issue of maintenance shall follow theprocedure under Cr. P.C. which empowers the Court to issuewarrants, pass order of interim maintenance and followthe procedure under section 126 of Cr.P.C. Hence, the evidence isto be recorded in the presence of the respondent. However, thequestion is that whether part 3 of Section 10 is whetherrestricted to only settlements or whether it is dehors a settlement.The procedure can be laid down to find out the truth of the factswhich are agitated and contested between the parties. It is to benoted that though there is use of word "or", it is not to be readconjunctively with the word "settlement" but it is to be readdis-conjunctively, as the word "at" is used before the words "thetruth. The Family Court can lay down its own procedure in respectof (ii) adjudication. 36.In view of statements of objects and reasons forenacting the family Court Act also indicates that the Act alsoseeks simplify the evidence and procedure so as to enable theFamily Court to deal effectively. If the provisions of chapter 4 ofthe Family Court Act are read bearing in the aforesaid in mind, itwould be at once clear that sub section 3 of Section 10 of the 3 revision application no.14.22.odt..odt 31 F.C. Act must be read in an expansive manner and Family Courtwould not be precluded from laying down procedure which is invariance in the procedure prescribed under the Cr.P.C. to dealwith the subject matter before it. Section 15 of the Family CourtAct provides that it would not be necessary to record evidence ofwitnesses at length but Judge shall record memorandum ofsubstance of what the witness has deposed. The import of Section15 is not that the Judge must record memorandum of substancein every case. Section 15 is an enabling provisions which makes itexplicitly clear that it is not necessary for oral testimony to berecorded at length and the Court has an option of hearing thetestimony of the witnesses and recording the substance of his/hertestimony. 37.In view of the above discussion this Court finds noinfirmity with the decision of the Family Court in accepting theevidence by way of an affidavit permitting the applicant and non-applicant to tender the same in their examination-in-chief andproviding an opportunity to the applicant to cross-examine thenon-applicant and therefore, on that ground also the application isdevoid of merits and liable to be dismissed. 3 revision application no.14.22.odt..odt 32 38.In view of that I proceed to pass the following order:-Revision application is accordingly dismissed.Pending applications, if any also stand disposed of. (URMILA JOSHI PHALKE, J.)manisha