Priyank Jain v. Principal Judge, Family Court, Lko. and Another

Reserved Court No. 8 Case :- MATTERS UNDER ARTICLE 227 No. - 6168 of 2023 Petitioner :- Priyank Jain Respondent :- Principal Judge, Family Court, Lko. And Another Counsel for Petitioner :- Avinash Chandra Counsel for Respondent :- Sachin Upadhyay Along with Case :- MATTERS UNDER ARTICLE 227 No. - 5843 of 2023 Petitioner :- Priyank Jain Respondent :- Principal Judge, Family Court, Lko. And Another Counsel for Petitioner :- Avinash Chandra Counsel for Respondent :- Sachin Upadhyay,Shivendra S Singh Rathore Hon'ble Jaspreet Singh,J.

¶1Heard Sri Avinash Chandra, learned counsel for the petitioner and Ms. Tanvi Jain, the respondent no. 2 who appears in person.

¶2These two petitions have been preferred under Article 227 of the Constitution of India arising out of matrimonial proceedings in between the same parties and involve similar questions of law and fact, hence, both the petitions were heard together and are being decided by this common judgment.

¶3In order to appreciate the controversy involved in the instant petitions, the facts giving rise to the said controversy are being noticed hereinafter first:-

¶4A matrimonial dispute had arisen between the petitioner-husband and the respondent no. 2-wife which led the respondent no. 2 to institute a petition seeking dissolution of the marriage dated 13.02.2019 and was registered as Case No. 281 of 2021 before the Principal Judge, Family Court, Lucknow under Section 13 of Hindu Marriage Act.

¶5It is the case of the respondent no. 2, the plaintiff before the Family Court, that the petitioner and his family members had meted out cruelty to the respondent no. 2 both physical and mental which made it difficult for the respondent no. 2 to live with the petitioner. It was also alleged by the respondent no. 2 in her petition that several times demand for dowry was made which was one of the major cause of conflict between the petitioner and the respondent no. 2. The petitioner neglected the respondent no. 2 even when she was on her family way and incidents of physical abuse have been alleged at the behest of the petitioner and his family members.

¶6In the aforesaid backdrop, the petitioner instituted the petition under Section 13 of the Hindu Marriage Act seeking dissolution of marriage. The respondent no. 2 apart from instituting the petition for dissolution of marriage as mentioned aforesaid also lodged a First Information Report against the petitioner and the charge sheet has been filed in the said case.

¶7It is also stated that efforts for mediation were made in light of the orders passed by the District Judge, Lucknow but no amicable settlement could be arrived between the parties. It has also been alleged that the respondent no. 2 is a single mother and there has been no support from the petitioner or his family members and efforts were made to delay the proceedings.

¶8In the aforesaid circumstances, the respondent no. 2 approached this Court by filing a petition under Article 227 of the Constitution of India bearing No. 565 (A-227) of 2022 for expeditious disposal of the divorce petition pending before the Additional Principal Judge, Family Court, Court No. 6, Lucknow. The said petition came to be disposed of by a coordinate Bench of this Court by means of order dated 03.03.2022 with a direction of granting a last opportunity to the petitioner, herein, to file his written statement in the divorce petition as well as in the petition preferred by the respondent no. 2 under Section 125 Cr.P.C. pending before the same Court. In case if the petitioner herein failed to file his response, it would be open for the Family Court to proceed ex-parte against the petitioner herein to ensure that the proceedings were finally decided within a period of eight months after considering the evidence filed by the parties on record.

¶9It is further stated that the petitioner herein filed his written statement controverting the allegations made in the petition by the respondent no. 2 and the petitioner also introduced a counter claim introducing facts and alleging cruelty meted to the petitioner herein at the behest of the respondent no. 2 and he too sought a relief of seeking dissolution of the marriage.

¶10In the counter claim introduced by the petitioner, it was stated that the respondent no. 2 was aggressive and abusive and since the father of the respondent no. 2 had various contacts in the upper echelons of the Police Administration in the State of U.P., hence, he had threatened the petitioner herein of dire consequences.

¶11It was also alleged that all the allegations made in the petition by the respondent no. 2 were false and no demand for dowry was made neither the alleged incident of physical abuse was true and in the aforesaid circumstances, it was not possible for the petitioner and the respondent no. 2 to stay together and efforts for mediation had failed even before the Samadhan Center operated under the aegis of the Apex Court, hence, a decree of divorce be granted. It is in the aforesaid backdrop that the parties were litigating their respective claims and counter claims before the Family Court at Lucknow.

¶12Upon the exchange of pleadings, the issues were framed by the Trial Court on 22.04.2022 and thereafter the matter was fixed for evidence of respondent no. 2 for 18.05.2022. The respondent no. 2 had examined herself and three other witnesses. Upon conclusion of the evidence of the respondent no. 2, the petitioner had filed his examination-in-chief on

05.08.2023. The cross-examination of the petitioner concluded on

07.10.2023 and at that point of time, another effort was made to mediate and the matter was referred to the mediation center of the Family Court. The order sheet of the Trial Court would reflect that the mediation did not work out and the petitioner filed the examination-in-chief of his witness namely Mayank Kumar Jain.

¶13Both the parties remained at logger heads and an objection was raised by the respondent no. 2 before the Family Court that the petitioner be required to file the examination-in-chief of all his witnesses so that the respondent no. 2 could effectively prepare for cross-examining the defendant-witnesses. An objection was also taken that unless and until the petitioner files the examination-in-chief of all his witnesses, the respondent no. 2 will not cross-examine the witness, namely Mayank Jain.

¶14The Trial Court also inquired from the parties regarding the progress and the outcome of mediation to which it was informed that the mediation had failed and in the aforesaid circumstances, they do not wish to go for any further mediation rather the evidence must go on, on day to day basis, also keeping in mind the order of expedition passed by the High Court.

¶15It is stated that the Principal Judge, Family Court, Lucknow on

03.11.2023 had granted a last opportunity to the petitioner for filing the examination-in-chief of all of his witnesses whom he wished to examine by 10th November, 2023 and had fixed for the cross-examination of the defendant-witnesses on 16th November, 2023.

¶16This order dated 03.11.2023 was assailed by the petitioner in the connected petition bearing W.P. No. 5843 (A-227) of 2023. While the said petition was pending as the respondent no. 2 had already put in appearance but there was no effective order passed in the said petition. In the meantime, on 16.11.2023, the Principal Judge, Family Court passed another order in terms whereof the opportunity of cross-examining the DW-2 namely Mayank Kumar Jain, by the respondent no. 2 was closed and the opportunity to lead further evidence of the petitioner was also closed and the matter was fixed for final hearing/arguments on 21.11.2023.

¶17Once again, being aggrieved by the order dated 16.11.2023 the petitioner assailed the said order by filing the instant petition bearing Writ Petition No. 6168 (A-227) of 2023. It is in the aforesaid backdrop the two orders dated 03.11.2023 and 16.11.2023 are under challenge by the petitioner in the instant two respective petitions.

¶18Sri Avinash Chandra, learned counsel for the petitioner has made a three fold submission:-

(i) It is urged that the petitioner had filed a list of witnesses wherein he proposed to examine 17 witnesses in all. It is urged that the petitioner has already been examined and cross-examined and while the examination-in-chief of D.W. 2 namely Mayank Kumar Jain was placed on record but the respondent no. 2 refused to cross-examine the said witnesses unless the petitioner furnishes the examination-in-chief of all the witnesses together. It is urged that the Principal Judge, Family Court, Lucknow by directing the petitioner to furnish the examination-in-chief of all the witnesses rather than permitting the petitioner to file the same one by one is prejudicial and is not in accordance with the procedure known in law, hence the order dated 03.11.2023 was bad. It is further urged that the petitioner had already assailed the said order dated 03.11.2023 in the connected petition bearing W.P. No. 5843 (A-227) of 2023 and the Trial Court even without waiting for the outcome of the petition, passed the order impugned dated 16.11.2023, as a result, not only the opportunity to cross-examine the petitioner-witnesses by the respondent no. 2 was closed but the order affected the petitioner gravely as his opportunity to lead further evidence by examining the other witnesses was closed. It is submitted that as per law, a party cannot be subjugated or prevented from leading or examining his witnesses as the witnesses have to be examined one after the other and not simultaneously.

(ii) It is also urged that even though the petitioner had given a list of 17 witnesses to be examined, there can be a situation where after examining only few of the witnesses, a party may not deem appropriate to examine the others, however, if the petitioner is compelled to file the examination-in-chief of all the witnesses then it would lead to compulsion to examine all the said witnesses, even though, the party may not wish to examine all and this failure may lead to a court to draw adverse inference against such party which may ultimately affect the trial and the outcome of the suit. Thus, the procedure adopted by the Trial Court is adverse to the settled principles of law, hence, the order impugned dated 03.11.2023 and 16.11.2023 are bad and liable to be set aside.

(iii) The learned counsel for the petitioner has further urged that since the petitioner is also facing a criminal trial at the behest of the respondent no. 2 wherein the witnesses would be the same, hence, it could cause serious prejudice to the petitioner by filing the examination-in-chief of all his witnesses together, as a result, even though, all the witnesses may not be examined in the matrimonial proceedings, yet, their affidavits being on record can be used against the petitioner or his witnesses in the criminal trial which has yet not commenced and this may lead to serious prejudice to the petitioner to contest the trial both in the matrimonial proceedings as well as in the criminal proceedings. It has also been urged that where the issue before the civil proceedings is common to the issue involved in the criminal proceedings then the civil proceedings are required to be kept at bay until the criminal trial is completed. It is further urged that the aforesaid contentions were also raised before the Family Court concerned but it did not advert to it rather the impugned order dated 16.11.2023 was passed noticing that the High Court had expedited the proceedings wherein the decision was to be rendered within a period of eight months and also noticing that earlier attempts for mediation between the parties had failed, hence, the direction to close the evidence of the petitioner recording the reluctance of the respondent no. 2 to cross-examine the defendant-witness who was present before the court and fixing the matter for arguments and final hearing was passed which is patently erroneous and an opportunity to contest the proceedings have been stone walled resulting in sheer miscarriage of justice for the petitioner, in the aforesaid circumstances, the impugned orders are liable to be set aside and both the petitions deserve to be allowed.

¶19The learned counsel for the petitioner has relied upon the following decisions (i) Kowadu and Another Vs. Suresh Ramteke and and Others; 2009 (4) Mh.L.J 446; (ii) Sai Pooja Education Society and Others Vs. Pooja Yadav, MANU/MP/3741/2022 (iii) Laxman Singh and Others Vs. State of Madhya Pradesh and Others; MANU/MP/1395/2006; (iv) Banganga Cooperative Housing Society Ltd. and Others Vs. Vasanti Gazanan Nerukar and Others; MANU/MH/1020/2015.

¶20Per contra, Ms. Tanvi Jain refuted the aforesaid contentions and submitted that it is not only the order dated 03.03.2022 passed by the Coordinate Bench of this Court in W.P. No. 565 (A-227) of 2022 where the proceedings were required to be decided within a period of eight months but there was another order passed in W.P. No. 4359 (A-227) of 2022 (Tanvi Jain Vs. Additional Principal Judge, Family Court No. 6 and Another) wherein after hearing both the parties, the coordinate Bench of this Court by means of order dated 16.11.2022 had given a further direction that the proceedings pending before the Family Court would be decided without granting any unnecessary adjournments to either of the parties and short dates be fixed in the matter to conclude the proceedings without delay.

¶21It is submitted that the petitioner has been deliberately delaying the trial and in order to frustrate the orders passed by this Court for expediting the hearing, the petitioner had filed a list of 17 witnesses proposed to be examined. It is urged that the proceedings are pending at Lucknow whereas the witnesses which are proposed to be examined by the petitioner are residents of Mumbai, Jabalpur, Bhopal, Indore, Sagar, Kalamboli Raiga in Maharashtra and these witnesses are not even relevant and they have been introduced purposefully only to delay the trial.

¶22Ms. Jain further submits that the civil proceedings pending before the Principal Judge, Family Court, Lucknow are governed by the Family Court Act, 1984 where the procedure and applicability of the Code of Civil Procedure and the Evidence Act is abridged.

¶23It is submitted that by introducing the amendment in Order 18 of the Code of Civil Procedure, 1908 in the year 2002 and directing that the examination-in-chief of the witnesses is to be submitted on affidavits, was primarily to cut-short the time consumed in the trial courts for recording the examination-in-chief. Moreover, once, the petitioner files the examination-in-chief of all the witnesses, the respondent no.2 who is contesting the proceedings would be able to prepare the cross-examination appropriately and would also be able to ascertain the discrepancies which would be helpful in cross-examining the witnesses. The very idea of introducing 17 witnesses spread over two States of Madhya Pradesh and Maharashtra and including the names of certain witnesses who are alleged to be the neighbours who otherwise are not known clearly indicates the malafides of the petitioner and a clear intention to misuse the process of law to delay the proceedings which would ultimately run counter to the two directions for expeditious disposal given by the High Court.

¶24It is further urged that the proceedings before the Family Court do no entail the rigors of the Code of Civil Procedure and the Evidence Act which is reflected from the provisions of the Family Court Act, 1984 and it also explains why the Trial Court had granted opportunity to the petitioner to furnish the examination-in-chief of all his witnesses on affidavits, hence, it cannot be said that there is any violation of any principle of law and in the aforesaid circumstances, the orders passed by the Family Court were justified and the instant two petitions deserve to be dismissed.

¶25Ms. Jain in support of her contentions has referred to the following decision (i) T. Anjana Vs. J.A. Jayesh Jayaram; 2022 SCC OnLine Ker 2043 (ii) Anoop Vijay Vs. Arunima P.T.; 2021 SCC OnLine Ker 267 (iii) Lata Pimple Vs. Union of India and others; AIR 1993 Bom.255 to buttress her submission that the Family Courts are not bound by the rigors of the Code of Civil Procedure and the Evidence Act and the court concerned is entitled to formulate its own procedure in order to achieve the object of deciding the matrimonial proceedings at the earliest.

¶26The Court had heard the learned counsel for the petitioner and Ms. Jain at length and has also given anxious consideration to the submissions made by the respective parties.

¶27At the outset, it will be relevant to notice the scheme of the Family Courts Act, 1984 and to what extent the provisions of the C.P.C. and the Evidence Act are applicable to such proceedings under the Hindu Marriage Act, hence, the relevant statutory provisions are being considered hereinafter.

¶28Prior to enactment of the Family Courts Act, 1984, the matrimonial suits were tried by the District Courts in accordance with the procedure laid down in the Code of Civil Procedure and the evidence was led as per the provisions of the Indian Evidence Act.

¶29It will be relevant to notice that the Code of Civil Procedure was amended drastically by the Amending Act 104 of 1976 which came into effect on 01.02.1977 and Order XXXII-A was incorporated which was applicable to suits relating to matters concerning the family. Order XXXII-A, Rules 1 to 6 are reproduced hereinafter for ready reference:- "1. Application of the Order.—(1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family.

(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceeding concerning the family, namely:—

(a) a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;

(b) a suit or proceeding for a declaration as to the legitimacy of any person;

(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;

(d) a suit or proceeding for maintenance;

(e) a suit or proceeding as to the validity or effect of an adoption;

(f) a suit or proceeding, instituted by a member of the family, relating to wills, intestacy and succession;

(g) a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.

(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding.

¶2Proceedings to be held in camera.—In every suit or proceeding to which this Order applies, the proceedings may be held in camera if the Court so desires and shall be so held if either party so desires.

¶3Duty of Court to make efforts for settlement.—(1) In every suit or proceedings to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

(2) If, in any such suit of proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings.

¶4Assistance of welfare expert.—In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the services of such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed by Rule 3 of this Order.

¶5Duty to inquire into facts.—In every suit or proceeding to which this Order applies, it shall be the duty of the Court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.

¶6"Family"—Meaning of.—For the purposes of this Order, each of the following shall be treated as constituting a family, namely:—

(a) (i) a man and his wife living together,

(ii) any child or children, being issue of theirs; or of such man or such wife,

(iii) any child or children being maintained by such man and wife;

(b) a man not having a wife or not living together with his wife, any child or children, being issue of his, and any child or children being maintained by him;

(c) a woman not having a husband or not living together with her husband, any child or children being issue of hers, and any child or children being maintained by her;

(d) a man or woman and his or her brother, sister, ancestor or lineal descendant living with him or her; and

(e) any combination of one or more of the groups specified in clause (a), clause (b) clause (c) or clause (d) of this rule. Explanation.—For the avoidance of doubts, it is hereby declared that the provisions of Rule 6 shall be without any prejudice to the concept of "family" in any personal law or in any other law for the time being in force.]"

¶30The Hindu Marriage Act, 1955 governs the parties in question. Section 21 of the Hindu Marriage Act, 1955 provides that subject to the provisions contained in the Act of 1955 and such rules as the High Court may make in this behalf, all proceedings under the Act of 1955 would be regulated as far as may be by the Code of Civil Procedure, 1908.

¶31The Hindu Marriage Act, 1955 came to be amended by the amending Act No. 68 of 1976 which came into effect from 27.05.1976 and Sections 21-B, Section 21-C and Section 22 came to be inserted and the same read as under:- "21-B. Special provision relating to trial and disposal of petitions under the Act.—(1)

The trial of a petition under this Act, shall, do as far as is

practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.] 21-C. Documentary evidence.—

Notwithstanding anything in any enactment

to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.]

¶22Proceedings to be in camera and may not be printed or published.—(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees."

¶32Section 21-B was introduced to ensure that the trial of matrimonial proceedings be continued on day to day basis and the legislature thought expedient to provide a timeline for conclusion of the trial within a period of six months from the date of service of notice on the defendant.

¶33Section 21-C provided leverage to the parties that notwithstanding anything contained in other Act, no document will be treated to be inadmissible in evidence on the ground that it is not duly stamped or registered.

¶34Section 22 directed that the proceedings be held in camera and may not be printed or publicized. The basis purpose of enacting the aforesaid provisions was to achieve the goal of getting the matrimonial proceedings decided not only expeditiously but to cut short the procedural technicalities and ensure privacy to an extent.

¶35Then, the Family Court Act, 1984 was enacted with a solemn object for promoting conciliation and for securing speedy settlement of disputes relating to marriage and family affairs. In order to achieve the aforesaid object, the Family Courts were established across the State and certain provisions are required to be noticed namely Sections 5, 6, 9, 10, 11, 12, 13, 14, 15, 16 and 17 and Section 20 clearly provides that the Family Courts Act, 1984 shall have an overriding effect over the other laws for the time being inforce.

¶36For the purposes of the instant case, Section 10, Section 13, Section 14, Section 15, Section 16 and Section 17 of the Family Courts Act, 1984 are being reproduced hereinafter for ready reference:- "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 a 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.

¶13Right to legal representation.—Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.

¶14Application of Indian Evidence Act, 1872.—

A Family Court may receive

as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).

¶15Record 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.

¶16Evidence 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 proceeding summon and examine any such person as to the facts contained in his affidavit.

¶17Judgment.—

Judgment of a Family Court shall contain a concise statement

of the case, the point for determination, the decision thereon and the reasons for such decision."

¶37At this stage, it will also be relevant to notice that the Code of Civil Procedure, 1908 was again amended in the year 2002 with special emphasis to curb delays in the trial of the civil suits and provisions in Order V, Order, VI, Order VII, Order VIII, Order XVI, Order XVII, Order XVIII amongst others were drastically amended. The intention being to curb delays and bottlenecks which were clogging the dockets of the Court and to ensure that civil trials are concluded expeditiously.

¶38In order to achieve the aforesaid aspect, Order XVIII C.P.C. came to be amended and specially Order XVIII Rule 4, 5 C.P.C. laid down new contours relating to recording of evidence and Order XVIII, Rule 4 and 5 C.P.C. are being reproduced hereinafter for ready reference:- "4. Recording of evidence.—(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit.

(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination: Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.

(8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.]

¶5How evidence shall be taken in appealable cases.—In cases in which an appeal is allowed, the evidence of each witness shall be,—

(a) taken down in the language of the Court,—

(i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or

(ii) from the dictation of the Judge directly on a typewriter; or

(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge."

¶39The proceedings in the instant case are governed by the Family Court Act, 1984. From the conjoint reading of the aforesaid statutory provisions, it would indicate that Section 10 of the Family Courts Act, 1984 generally makes the provisions of the C.P.C. applicable to the proceedings, however, Sub Section 3 of Section 10 gives ample power and leverage to the Family Court for laying down its own procedure with a view to arrive at a settlement in respect of subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other.

¶40Section 14 also indicates that a Family Court may receive as evidence, any report, statement, document, information or any other matter which may in its opinion is essential for effectively dealing with a dispute, irrespective whether such material, report or document may not be admissible as per the Indian Evidence Act.

¶41The recording of evidence as per Section 15 of the Family Courts Act, 1984 permits the Family Court judge to record the memorandum of substance of what the witness deposes and it may not be necessary for the Judge to record the evidence of the witness at length. The evidence of formal witnesses is permissible in shape of an affidavit as per Section 16 and even the judgment which is to be pronounced as per Section 17 is required to have a concise statement of the case, the point for determination and the decision thereon along with reasons for such decision.

¶42This Section 17 is akin to the provisions of Order XXII Rule 4 which relates to judgments of a Small Cause Court, inasmuch as, even a judgment of a court of small causes is required to contain the points of determination and the decision thereon and the judgment of other courts as per Order XX Rule 4 (2) clearly provides that the judgment shall contain a concise statement, the points for determination and decision thereon and the reasons for said decision.

¶43The aforesaid provisions and their interplay clearly highlights that the Family Court is required to curtail the delays, giving the Family Court enough leverage to expedite the proceedings diluting certain provisions of the Indian Evidence Act and the Code of Civil Procedure to achieve the said object.

¶44The purpose and the object of the Family Court cannot be said to be identical to that of the traditional Civil Courts who are empowered to deal with all sorts of disputes where the provisions of C.P.C. and the Evidence Act are applicable with full rigors.

¶45In the aforesaid context, in a manner of speaking, the Family Courts are special courts wherein particular type of disputes are taken note of and decided and in order to achieve the solemn goal of fostering the atmosphere of conciliation, the legislature has conferred powers to achieve the aforesaid purpose including the power to devise the procedure for fair conclusion of the proceedings.

¶46It will also be pertinent to keep in mind that a civil trial specially relating to matrimonial matters which are governed by the Family Courts Act,1984 cannot be mirrored as a criminal trial. Needless to say that the standard of proof in a civil case and in a criminal case are quite different, though, in a civil trial the standard of proof is based on the principles of pre-ponderance of probabilities while in a criminal trial, the standard of proof must be beyond reasonable doubt.

¶47Keeping the aforesaid principles in mind and from perusal of the plaint in suit, it would indicate that the respondent no. 2 has alleged cruelty against the petitioner and his family members who made demands for dowry. The allegations have been levelled at the father of the petitioner (who has left for his heavenly abode), the mother of the petitioner, the brother-in-law of the petitioner, sister-in-law of the petitioner (Jeth and Jethani) and another sister-in-law (Nanad).

¶48It is also to be remembered that in the matrimonial proceedings before the Family Court wherein the issues are framed on the basis of pleadings i.e. as per the plaint and the version in the written statement including containing counter claim and is confined to the facts which constitutes cruelty or such facts based upon which the relief is sought. However, it cannot partake the ingredients required to prove demand of dowry as to seek conviction in a criminal proceeding which is to be established on the basis of facts and incident proved including the ingredients for seeking conviction for demand and paying of dowry, beyond reasonable doubt, as required in light of provisions in Dowry Prohibition Act, 2005 read with relevant sections of the Indian Penal Code. The concept of cruelty as required in the matrimonial proceedings is to be established on the touchstone of pre-ponderance of probabilities.

¶49The criminal trial as per the petitioner has yet not commenced but the fact remains that merely because the criminal trial has not commenced it will not preclude the family court from proceeding with the civil trial before it.

¶50The decision of the Apex Court as reported in M.S. Sheriff, P.C. Damodaran Nair Vs. State of Madras, M. Govindan, Damodaran; AIR 1954 SC 397 may not have any major bearing on the instant proceedings as in light of the statutory provisions noticed hereinabove, it cannot be said that the decision has any effect to stay the civil proceedings till conclusion of criminal trial.

¶51Though, it is true that it is at the discretion of a party to chose the number of witnesses that he wishes to examine but at the same time, it is also for the courts to monitor the trial and ensure that unnecessary burdening or inflating the list of witness only to frustrate the trial or delay the proceedings is not permitted.

¶52In this context, it can clearly be stated that the list of witness which has been submitted by the petitioner containing 17 names can clearly be bifurcated into two parts; (i) witnesses of fact which may have any direct bearing to the proceedings at hand (ii) formal witnesses.

¶53In the proceedings at hand, the direct allegation which have been levelled are of two types; (i) relating to demand of dowry; (ii) physical abuse; which have been levelled against the petitioner and his family members.

¶54To that extent, the petitioner can very well be justified in producing such evidence to rebut the aforesaid contentions, however, what is to be seen is whether the said witnesses would be relevant and are such who have witnessed the alleged incident or have knowledge of the facts which are necessary to prove the case of the petitioner and/or disprove the case of the respondent no. 2.

¶55The other formal witnesses may not be relevant as the nature of the allegations levelled by the parties in the pleadings are between themselves and is hinged on the aforesaid broad two counts noticed hereinabove i.e. (i) relating to demand of dowry (ii) physical abuse.

¶56Order XVIII Rule 4 and 5 clearly provides that in all cases, the evidence of the witness has to be filed in shape of an affidavit. Prior to the amendment in the year 2002, the examination-in-chief was recorded in open court permitting the other party to cross-examine. In the instant case, if the evidence of such persons against whom direct allegations have been levelled and are required to be examined to prove the case of the petitioner and to disprove the case of the respondent no.2 can be filed together as each such witness in his/her examination-in-chief would depose what is relevant and known to such witness as per his/her personal knowledge.

¶57Even though the examination-in-chief of all such witnesses are filed in the Trial Court together it cannot be said to cause any prejudice to the petitioner as the content of such examination-in-chief on affidavit is confined to such facts as is known or is in the personal knowledge of such witness and the only exception being that if all witnesses file their affidavits then perhaps the other witnesses may not be able to improve their version. Nevertheless each witness is entitled to state the fact and would be subject to cross-examination where their veracity and credibility can be tested. Thus, in matrimonial proceedings, the standard of proof and mode of recording of evidence is different from a full fledged civil trial and directions to file all examinations-in-chief on affidavits together will cause prejudice may not be entirely correct.

¶58The apprehension expressed by learned counsel for the petitioner that in case if all the affidavits are filed together and even though if some of the aforesaid witnesses are cross-examined and thereafter it is realized by the petitioner that he does not wish to tender the remaining witnesses for cross-examination, it would raise an adverse inference against the petitioner is unfounded for the reason that the evidence of only such witness can be read who not only depose and furnish the examination-in-chief but also enter in the witness box for their cross-examination. In case if any witness who just leads his examination-in-chief but does not make himself available for cross-examination then in such a case his evidence, simply, is not read and there is no issue of raising any adverse inference against such a witness, thus, to state that the petitioner would be prejudiced if all the examination-in-chief of the witnesses is submitted and later by not examining or bringing the witnesses into the witness box for cross-examination would lead to any adverse inference is not in accordance with the principles of law contained in Section 114 (g) of the Indian Evidence Act and as explained by the Apex Court in Union of India Vs. Ibrahim Uddin and Another

(2012) 8 SCC 148.

¶59It is also relevant to notice that an affidavit in itself is not the evidence as defined in Section 3 of the Indian Evidence Act unless the witness comes to the court and states on oath that the statement contained in the said affidavit may be treated as his examination-in-chief and he formally verifies the same, accordingly, even if the examination-in-chief of certain witnesses as mentioned in the list of witnesses is placed before the Court and later some of those witnesses do not step into the witness box to verify their statement then such affidavits pale into insignificance and cannot be made the basis of drawing adverse inference rather the matter would be decided on the basis of the evidence which is complete in the sense that such witness has given his examination-in-chief and has offered himself for cross-examination and has been cross-examined.

¶60It will also be relevant to see that where the legislature has provided for certain timelines and the Family Court Act, 1984 has been made applicable then the said scheme is also required to be respected. The impact of the evidence led in the civil proceedings cannot be blindly accepted in the criminal proceedings as not only the standard of proof in the two types of trial is different but even the statement which is complete in the sense that the witness has been examined and cross examined only then his statement can be read in the criminal proceedings after following the provisions as provided in Section 33 of The Indian Evidence Act and only subject to such adherence, the same can be made relevant in the criminal trial.

¶61From the perusal of the list of witnesses as furnished by the petitioner it would indicate that apart from the petitioner himself and Mayank Kumar Jain, Soyal Jain, Ashi Jain, there is no direct allegations against any of the other persons whose names are mentioned in the list of witnesses. It is always open for the petitioner to examine or chose not to examine them. In the aforesaid circumstances, if the petitioner files the evidence of the persons who are proposed to be examined against whom direct allegations have been made and they file their examination-in-chief together it would not cause any prejudice subject to the fact that they enter into the witness box and offer themselves for cross-examination. It is only then that their affidavits partakes the nature of an examination-in-chief, hence, to state that merely by filing the examination-in-chief in shape of an affidavit, it will be taken to be a statement on oath, without the said witness entering into the witness box and affirming that the contents of the said affidavit are verified by him and it be taken as part of his examination-in-chief, is not quite correct.

¶62In so far as the decision cited by the parties are concerned in Kowadu (Supra), the decision related to a civil suit and was not in context with a matrimonial suit governed by the Family Courts Act, 1984. Similarly, the decision of Sai Pooja Education Society (supra), Laxman Singh (Supra) as well as Banganga Cooperative Housing (supra) are also not applicable in the instant case for the reason that they all deal with trial of civil case and are not governed by the Family Courts Act, 1984. Even the decision cited by the respondent no. 2 are not an authority on the point as to whether the Court can direct the examination-in-chief of all witnesses be filed together, hence, do not have much bearing in the instant case.

¶63In the totality of the facts and circumstances and material available on record and noticing the two orders passed by this Court for expediting the proceedings and also allying the apprehension of the petitioner, this Court on principle does not find any jurisdictional error in the order passed by the Principal Judge, Family Court in so far as it directs the petitioner to furnish the examination-in-chief of all the witnesses together, however, in the facts and circumstances, considering that the opportunity of the petitioner to lead further evidence has been closed and considering the fact that the opportunity of the respondent to cross-examine the petitioner-witness Mayank Jain has also been closed and though, the respondent no. 2 has not challenged that part of the order but keeping the principles of fairplay in mind and permitting the parties to lead appropriate and proper evidence in order to get the matter decided on merits rather than on technicalities. Hence, in the ends of justice, this Court is of the opinion that by issuing certain directions to balance the competing interest of both sides, this Court sets aside the two orders dated 03.11.2023 and 16.11.2023 passed by the Principal Judge, Family Court, Lucknow and the Trial Court and the parties shall adhere to the following directions:-

(I) The parties shall appear before the Principal Judge, Family Court, Lucknow on 27th February, 2024.

(II) The petitioner shall produce Mayank Kumar Jain on 27th February, 2024 for his cross-examination and it will be open to the respondent no. 2 to cross-examine the said witness. In case the respondent no. 2 does not want to cross-examine then no further opportunity will be given.

(III) Since, the time schedule as provided by the coordinate Bench of this Court is to be adhered, hence, the petitioner is directed to follow certain directions regarding the examination of his witnesses;

(a) The petitioner within three days from the date of conclusion of cross-examination of Mayank Kumar Jain will file the examination-in-chief of his next witness with an advance copy to the respondent no. 2 and who shall also, with a gap of three days from the date of receipt of examination in chief, shall cross-examine such witness.

(b) This process shall be applicable to all the witnesses, the petitioner wishes to examine.

(VI) The cross-examination of the witnesses shall as far as possible be held on day to day basis i.e. to say that once the witness enters into the witness box, his cross-examination will be held on consecutive dates until concluded.

(V) The Trial Court shall follow the above schedule to fix dates accordingly and the petitioner shall also make advance arrangements to bring his witness as per the dates fixed by the Trial Court in this regard.

(VI) No party shall be granted unnecessary adjournments and in case the Trial Court finds any party misusing the liberty, it shall be open for the Trial Court to impose costs with progressive enhancement also keeping in mind the guidelines given by the Apex Court for imposing costs in M/s Revajeetu Builders and Developers V. Narayanaswami & Sons and Others (2009) 10 SCC 84 and Vinod Seth V. Devinder Bajaj & Another

(2010) 8 SCC 1.

(VI) The Trial Court will endevour to decide the matter before it after affording full opportunity of hearing but without granting any unnecessary adjournments as observed above to conclude the proceedings within twelve weeks from the date the parties shall appear before the Principal Judge, Family Court, Lucknow i.e. 27th February, 2024.

¶64Accordingly, both the petitions are allowed in the aforesaid terms. Costs are made easy. Order Date :- 13th February, 2024 Asheesh (Jaspreet Singh, J.) High Court of Judicature at Allahabad, Lucknow Bench