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2011 DIGILAW 424 (GAU)

Tania Kar v. Avijit Roy

2011-05-16

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. By this revision petition, the petitioner-wife has challenged the correctness, legality and propriety of the judgment and order, dated 15.07.2009, passed by the learned Judge, Family Court, Agartala, West Tripura, in Misc. Case No. 116/2009, whereby and where under, the learned Judge, awarded maintenance allowance of Rs. 12,000/- per month in favour of the petitioner, thereby modifying the earlier interim maintenance allowance of Rs. 20,000/- per month, granted by the order, dated 25.04.2009, passed in Misc.(Int.)117 of 2009. 2. I have heard Mr. D.P. Kundu, learned senior counsel, assisted by Ms. R. Guha, learned Counsel, appearing for the petitioner and Mr. P. Rathor, learned Counsel, appearing for the respondent. 3. Mr. Kundu, learned senior counsel, appearing for the petitioner, taking this Court through the impugned judgment and order, dated 15.07.2009, the judgment and order, dated 25.04.2009 aforesaid, and the pleadings of the parties, has submitted that, the learned Judge, Family Court, committed error and illegality by reducing the maintenance allowance, without any evidence on record in support of such modification and without giving any opportunity to the petitioner to establish her case by adducing evidence. According to the learned senior counsel, the learned trial Judge also, committed gross error and illegality by relying on the Photostat copies of the documents, submitted by the respondent, without any evidence with regard to the contents of the said documents and also without forming any opinion under Section 14 of the Family Courts Act, 1984 (hereinafter called 'the Act'). It is submitted, on behalf of the petitioner, that the impugned judgment and order having been passed without complying with the statutory requirement, prescribed by Sections 15 and 17 of the Act, can't be allowed to stand. It is further submitted, by the learned senior counsel, appearing on behalf of the petitioner, that the petitioner was not given any opportunity to challenge the correctness of the documents, submitted by the respondent and relied on by the learned Judge and that this caused much prejudice to the petitioner. It has also been submitted, that the decision rendered by the learned Judge, Family Court, is not based on reasons and as such the same can't stand the test of law. It has also been submitted, that the decision rendered by the learned Judge, Family Court, is not based on reasons and as such the same can't stand the test of law. The learned senior counsel, has further submitted, that the learned Judge, without any evidence on record and without giving any opportunity to the petitioner, made certain adverse observations, against the petitioner, effecting her conduct, which are liable to be set aside and quashed. In support of his contentions, Mr. Kundu, learned senior counsel, appearing for the petitioner, has relied on the following decisions:- (1) V. Markendeya and other vs. State of Andhra Pradesh & other, (1989)3 SCC 191 (2) Chaturbhuj vs. Sita Bai, (2008)2 SCC 316 (3) K.A. Abdul Jaleel vs. T.A. Shahida, (2003)4 SCC 166 (4) Shabana Bano vs. Imran Khan (2010)1 SCC 666 (5) State of Uttar Pradesh vs. Jogendra Singh, AIR 1963 1618 (6) Land Acquisition Officer & Mandal Revenue Officer vs. V. Narasaiah, (2001)3 SCC 530 (7) Ramji Dayawala & Sons (P) Ltd. vs. Invest Import, (1981)1 SCC 80 (8) Ramchandra Keshav Adke v. Govind Joti Chavare and other, (1975)1 SCC 559 (9) State of Gujarat vs. Shantilal Mangaldas and other, (1969)1 SCC 509 (10) Gullappalli Nageswara Rao etc. vs. State of Andhra Pradesh and other, 1960(1) SCR 580 (11) A.K. Roy v. Union of India and other, (1982)1 SCC 271 (12) State of Rajasthan vs. Sohan Lal and other, (2004)5 SCC 573 (13) National Insurance Co. Ltd. vs. Keshav Bahadur and other, (2004)2 SCC 370 (14) Skyline Education Institute (India) Private Limited vs. S.L. Vaswani and another, (2010)2 SCC 142 . (15) Union of India vs. Kuldeep Singh, (2004)2 SCC 590 (16) LIC of India vs. R. Dhandapani, (2006)13 SCC 613 (17) Kerala Solvent Extractions Ltd. vs. A. Unnikrishnan and another, (2006)13 SCC 619 (18) Wander Ltd. and another vs. Antox India P. Ltd. 1990 (Supp) SCC 727 (19) Kranti Associates Private Ltd. and another vs. Masood Ahmed Khan and other, (2010)9 SCC 496 (20) Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi and other, (1991) 2 SCC 716 (21) R.S. Raghunath vs. State of Karnataka and another, (1992)1 SCC 335 4. Supporting the impugned judgment and order, Mr. Supporting the impugned judgment and order, Mr. P. Rathor, learned Counsel, appearing for the respondent, has submitted that, the interim order, dated 24.04.2009, granting maintenance allowance @ Rs.20,000/- in favour of the petitioner, having been passed ex parte, the learned trial Judge committed no error by passing the final order, fixing the maintenance allowance at Rs. 12,000/- per month in favour of the petitioner. It is also submitted that, in view of the provisions prescribed by Section 14 of the Act, the learned trial Judge, rightly accepted the documents, submitted by the respondent, as evidence and that the impugned judgment does not suffer from any error, requiring interference. In support of his argument, Mr. Rathor, learned Counsel, appearing for the respondent, has relied on the following decisions: (1) The Belsund Sugar Co. Ltd. vs. State of Bihar and other, AIR 1999 SC 3125 (2) Shabana Bano vs. Imran Khan, AIR 2010 SC 305 (3) Saygo Bai vs. Chueeru Bajrangi, AIR 2011 SCW 336 5. The facts, in brief, as may be necessary for disposal of this revision petition, are as below:- The marriage between the petitioner and the respondent was performed on 24.11.1999, as per Hindu rites and customs and, thereafter, they lived as husband and wife. Out of the said wedlock, on 16.02.2006, a daughter, namely, Smt. Pratyusha Roy, was born and she has been presently residing with her mother at Agartala. Being unable to bear the torture at the hands of the respondent-husband and her parent-in-laws, the petitioner, on 20.03.2009, along with her said daughter, left the marital home at Andaman & Nicobar Islands and took shelter in her parents house at Agartala. According to the petitioner, her husband used to earn gross salary of Rs. 52,832/- and net salary of Rs. 48,894/- and he refused to pay any maintenance towards the livelihood of the petitioner and their daughter, who were unable to maintain themselves. Hence, the petitioner-wife and her minor daughter preferred a petition under Section 125 of the Code of Criminal Procedure (for short 'of the Code of Criminal Procedure') before the Family Court, Agartala, West Tripura, seeking maintenance allowance @ Rs.30,000/- per month from the respondent for their maintenance. On receipt of the said petition, the learned Judge, Family Court, registered the same as Misc. Case No. 116/2009 and issued notice to the opposite party-husband. On receipt of the said petition, the learned Judge, Family Court, registered the same as Misc. Case No. 116/2009 and issued notice to the opposite party-husband. On the same date, another application was received, seeking interim maintenance allowance, which was registered as Misc.(Int.) No. 117/2009 and notice was issued to the opposite party husband, fixing 25.04.2009, for service report. The learned Judge, Family Court, vide judgment and order, dated 25.04.2009, passed in Misc.(Int.)117/2009, while observing that the respondent was drawing salary of Rs. 52,832/- per month as Deputy Director (Health), Directorate of Health Services, Atlanta Point, Port Blair, directed the respondent husband to pay interim maintenance allowance @ Rs.20,000/- per month to the petitioner. 6. The respondent-opposite party, by filing written statement in Misc. Case No. 116/2009, denied the allegations, brought by the petitioner against him and his parents and alleged that the petitioner, without any sufficient cause, left the marital home. According to the respondent, the petitioner treated him and his parents with cruelty, criticized her father-in-law and in one occasion she tried to hit the father of the respondent opposite party in public, which compelled the respondent-opposite party to leave his parental house and take a rented accommodation for living with the petitioner and their daughter. According to the respondent opposite party, his salary was wrongly fixed as Rs. 52,832/- instead of Rs. 45,934/- per month, showing an excess amount of Rs. 600/-, which was being deducted from his monthly salary. He has also stated, in his written statement, that he was required to pay premium of Rs. 75,934/- per annum against policies namely, LICI, ICICI Prudential Life Insurance (Smart kid unit) linked (RP), Royal Sundaram Health Shield Insurance, United India Insurance Col. Ltd. Family Health Plan Ltd. That apart, it is stated, in the written statement, that, loans from SBI, Axis Bank and finance company had to be taken by the respondent to meet the extravagant requirements of the petitioner, her mother and brother, and thus, he was required to pay @Rs.1,59,408/- per annum, being the repayment of loan and interest thereon. It is also stated that, his special island allowance @ Rs.3,961/- will be deducted, once he is transferred from the Andaman & Nicobar Islands and that his House Rent Allowance of Rs. 6,338/- per month, will also be stopped once he is allotted with the Government accommodation w.e.f. August,2009. It is also stated that, his special island allowance @ Rs.3,961/- will be deducted, once he is transferred from the Andaman & Nicobar Islands and that his House Rent Allowance of Rs. 6,338/- per month, will also be stopped once he is allotted with the Government accommodation w.e.f. August,2009. He further stated, in his written statement, that he was required to repay the loan of Rs. 5(five) lakh, which was taken from his relatives. In view of the above, it has been stated, in the written statement, that it was not possible, on his part, to pay maintenance allowance @ Rs.30,000/- per month in favour of the petitioner, who deserted him without any reasonable cause. 7. Keeping in mind the nature of dispute involved in the case at hand and the pious responsibility of the Court in dealing with such job, I feel it appropriate to quote below the following observations made by the Supreme Court in the case of V. Markendeya (supra), "Fundamental rights, and the directive principles constitute "conscience of the Constitution. The Constitution aims at bringing about a synthesis between 'Fundamental Rights' and 'Directive Principles of State Policy' by giving to the former a place of pride and to the latter a place of performance, together they form core of the Constitution. They constitute its true conscience and without faithfully implementing the Directive Principles it is not possible to achieve the welfare State contemplated by the Constitution, see Kesavananda Bharati vs. State of Kerala (1973)4 SCC 225 . 8. In the case of Chaturbhuj (supra), the Supreme Court observed "The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 of the Code of Criminal Procedure. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 of the Code of Criminal Procedure. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal vs. Veena Kaushal (1978)4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Samabhai Bhatiya vs. State of Gujarat (2005)3 SCC 636 . 9. As held in the case of K.A. Abdul Jaleel (supra), the Family Court Act was enacted for establishment of Family Courts for the purpose of disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. 10. In the light of the above principles laid down by the Supreme Court and the objectives, ensured by the statute, I would like to proceed to examine the correctness of the impugned judgment and order. 11. The learned Judge, Family Court, in his judgment and order, dated 15.07.2009, at paragraph-6, has recorded that, during the hearing of the case, both the parties were heard at length for the purpose of reconciliation and that though the petitioner-wife was willing to join the family life with the respondent, the respondent-husband refused to take her back to his life. The learned Judge, also recorded that, during the hearing of the case, the opposite party had shown many papers relating to the policies of LICI and other financial institutions, by which he deposited sufficient funds in the name of his wife and the daughter, thereby justifying that he loved his wife and daughter. The learned Judge, further observed. The learned Judge, also recorded that, during the hearing of the case, the opposite party had shown many papers relating to the policies of LICI and other financial institutions, by which he deposited sufficient funds in the name of his wife and the daughter, thereby justifying that he loved his wife and daughter. The learned Judge, further observed. During hearing of the case, he has shown an FIR lodged against the brother-in-law Sri Tamal Kar to the Station House Officers, Women Police Cell, Mangalore dated 12.04.2007 wherein, he has stated that at the time of marriage, he had given all the information regarding his caste to the mother of the petitioner No. 1, but they did not object the marriage, but at present they used to abuse him saying that he belongs to a low caste, bad caste and his mother is a 'prostitute' and on the basis of the FIR lodged to the Police Station they inquired the matter and both the petitioner No. 1 and the brother of the petitioner No. 1 were warned and a report has been submitted to the court and a general diary and the paper relating to investigation were submitted before this Court by making firisti and all these papers or documents are taken into evidence and referred to this judgment Under Section 14 of the Family Courts Act,1984. Also the fact of case filed against the petitioner No. 1 Under Section 9 of the Hindu Marriage Act, 1955 for getting back his wife in the court of Civil Judge, (Sr. Div.), Mangalore and also letter written to the Superintendent of Police, Andaman are carefully perused by this Court and taken in evidence Under Section 14 of the Family Court Act, 1984. The learned Judge also observed during hearing of the case, I personally tried to conciliate between the husband wife, but from the circumstances of the case, it appears that the mind of the opposite party has been poisoned by the conduct and cruel behaviour of the petitioner No. 1. The learned Judge further observed that, though interim maintenance allowance @ Rs.20,000/- per month, was granted, he also considered the salary certificate of the opposite party and his financial liabilities, more particularly, the fact that a Government accommodation was likely to be given to the respondent w.e.f. August,2009 in the event of which, his house rent allowance of Rs. The learned Judge further observed that, though interim maintenance allowance @ Rs.20,000/- per month, was granted, he also considered the salary certificate of the opposite party and his financial liabilities, more particularly, the fact that a Government accommodation was likely to be given to the respondent w.e.f. August,2009 in the event of which, his house rent allowance of Rs. 6,338/- would be discontinued and that his ISA allowance of Rs. 3,961/- would be discontinued, in the event of his posting outside the Island. The learned Judge also observed that, on careful examination of the papers, submitted before the court by the respondent-opposite party, it appeared that, being a new recruit to the post of Deputy Director (Health), the respondent-opposite party had other liabilities including repayment of Bank loan and private loan of Rs. 5 lakhs, which was taken from his relatives. With the above observation, the learned Judge, came to the conclusion that, expenditure for the minor daughter could not be more than Rs. 4,000/- to Rs. 5,000/- per month and that an amount of Rs. 5,000/- per month would be sufficient for the petitioner-wife to maintain herself. In view of above, the learned Judge, modified the interim maintenance allowance, granted earlier, in favour of the claimant petitioners and fixed the same at Rs. 12,000/- per month. 12. Fact remains that none of the parties adduced any evidence. The order sheets do not indicate that the parties were asked to examine witness. The papers considered by the learned Judge were neither adduced as evidence nor were the contents of the same proved. There is no reflection in the order sheet as to on which date the papers were submitted/filed by the respondent. The order sheets of the case records reveal that the parties, more particularly the petitioner-wife, were never asked to produce any evidence or documents etc. That apart, there is nothing on record to show that the papers, relied on by the learned Judge, was brought to the notice of the petitioner. The judgment is also silent as to the nature and particulars of the papers submitted by the respondent and relied on by the learned Judge. The petitioner has assailed the judgment on the grounds of 'no evidence' and absence of reasons. The judgment is also silent as to the nature and particulars of the papers submitted by the respondent and relied on by the learned Judge. The petitioner has assailed the judgment on the grounds of 'no evidence' and absence of reasons. It has also been contended that the papers, submitted by the respondent, as referred in the judgment, were not brought to the notice of the petitioner, facilitating her to refute/controvert the said papers and that the papers being photo copies, no opinion as required by Section 14 of the Act was also formed. The order sheet, which is the mirror of the proceeding is very much silent in this regard. 13. In the back drop of the above, in order to appreciate the arguments, advanced on behalf of the parties, I feel it appropriate to examine the statutory provisions and the principles of law laid down by the Supreme Court in this regard. 14. As held in the case of Shabana Bano (supra), a Family Court has the jurisdiction in respect of petition, filed under Section 125 of the Code of Criminal Procedure. 15. Now, the question is whether the reliance placed by the learned Judge in respect of documents, submitted by the respondent, was lawful. According to the learned Counsel, appearing for the respondent, the said documents were accepted as evidence under the provision of Section14 of the Act and as such the learned trial Judge rightly relied on the said documents. Section 14 of the Act reads as follows: 14. Application 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. 16. A careful reading of the said provision of the statute, makes it no difficult to understand that any report, statement, documents, information or matter, even if such items are found to be irrelevant or inadmissible, under the Indian Evidence Act, 1872, can be received as evidence, if the concerned Family Court forms an opinion to the effect that such report, statement, documents or information or matter will assist it to deal effectually with a dispute before the Court. Therefore, the primary pre-requisite of receiving such items as evidence is "formation of an opinion by the Court. 17. On perusal of the order sheets as well as the impugned judgment and order, it reveals that no such opinion, as required by Section 14 of the Act was formed. There is nothing on record to find that the learned Judge had come to findings or opinion that the papers submitted by the respondent would assist the court to effectually deal with the dispute. Hence, it is clear that the papers/documents were accepted/relied on without complying with the statutory provisions of law. 18. In view of the principle laid down in Taylor v. Taylor, reported in (1876) 1 Ch D 426, where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods or performance are necessarily forbidden. As observed by the Supreme Court, in the case of Ramchandra Keshav Adke (supra), this rule stood the test of time and it was applied by the Privy Council in Nazir Ahmed vs. Emperor, reported in, AIR 1936 PC 253 and later on by the Supreme Court in several cases Shiv Bahadur Singh vs. State of U.P. reported in 1954 SCR 1098 : AIR 1954 SC 322 . Therefore, the learned trial judge, before receiving the documents, submitted by the respondents, as evidence, should have formed an opinion, indicating therein, that those documents would assist the court to deal effectually with the dispute. 19. Relying on the decision in the case of The Belsund Sugar Co. Ltd. (supra), Mr. Rathor, learned Counsel, appearing for the respondent, has submitted that the Family Courts Act, being a special Act, will prevail over the general Act and that in view of the provisions, prescribed by Section 14 of the Act, the learned trial judge committed no error by accepting the documents, which were attested by a Notary. There can be no dispute that the procedure prescribed by special Act is required to be followed unless contrary is provided by such special Act. In the present case, what the learned judge has done is that, he has relied on some papers submitted by the respondent, without bringing those to the notice of the petitioner and without forming any opinion as required by Section 14 of the Act. 20. In the present case, what the learned judge has done is that, he has relied on some papers submitted by the respondent, without bringing those to the notice of the petitioner and without forming any opinion as required by Section 14 of the Act. 20. The order sheets of the proceeding of Misc. Case No. 116 of 2009, does not reveal that, the learned Judge, Family Court, after receiving the said documents, formed an opinion, as prescribed by Section 14 of the Act. 21. In the impugned judgment and order, the learned trial Judge mentioned that, during the hearing, the respondent-husband had shown an FIR, apart from submitting, by making a firisti, papers and documents relating to the investigation in respect of the said FIR. The learned Judge, Family Court, relied on those documents taking resort to the provision prescribed by Section 14of the Act. The learned Judge also received the letter written by the respondent to the Superintendent of Police, Andaman, regarding filing of a case under Section 9 of the Hindu Marriage Act, 1955, as evidence under Section 14 of the Act. As discussed above, from a careful reading of the impugned judgment and order, more particularly the observations made by the learned trial Judge, it is clearly found that the learned trial Judge did not form any opinion to the effect that the documents, which were relied on/considered, would effectually assist to deal with the dispute. A further scrutiny of the impugned judgment and order, reveals that, the learned trial Judge, mentioning the provision of Section 14 of the Act, had accepted the firisti, the papers relating to the investigation and the letter written to the Superintendent of Police, Andaman, as evidence. The said documents, admittedly, can't assist in deciding the means of respondent (i.e. his income), the requirement/necessity of the petitioners to determine the quantum of maintenance allowance. 22. The said documents, admittedly, can't assist in deciding the means of respondent (i.e. his income), the requirement/necessity of the petitioners to determine the quantum of maintenance allowance. 22. In a proceeding under Section 125 of the Code of Criminal Procedure, to determine the quantum of allowance, the question involving sufficient means i.e. the capability/financial soundness of the person, who is required to give maintenance and the necessity/requirement of the claimants are required to be determined on the basis of the materials on record and to do so, the parties should be given opportunity to establish their respective cases by adducing evidence, either oral or documentary or both, unless the claims are admitted by the party concerned. Section 14 of the Act does not dispense with the requirement of adducing evidence, in support of claim and counter claims. What the Section 14 of the Act provides is that, the report, statement, documents, information or matter, though irrelevant or inadmissible under the Evidence Act, may be received as evidence, subject to the opinion that such materials would assist to effectually deal with the dispute. 23. The object of not adhering to the rigid rules of evidence and procedure is certainly for early settlement of disputes relating to marriage and family, so that justice is done to those persons as mentioned under Section 125 of the Code of Criminal Procedure, who are unable to maintain themselves, keeping in mind their welfare. So, the rigidity of rules and procedure has been relaxed for achieving the cherished object of Section 125 of the Code of Criminal Procedure, i.e. to give appropriate relief to persons included by Section 125 of the Code of Criminal Procedure and not to deny the relief to which they are otherwise entitled. As observed in the case of Jogender Singh (supra), the word "may" generally does not mean "must" or "shall". But it is well-settled that the word "may" is capable of meaning "must" or "shall" in the light of the context. This being the position, a Family Court, in order to exercise the discretion provided by Section 14 of the Act for receiving report, statement etc. as evidence, must form an opinion that such statement, report, papers will assist in deciding the dispute effectually. Therefore, in the absence of such opinion, no report, statement, paper, if irrelevant or inadmissible, under the Evidence Act, can be received as evidence. 24. as evidence, must form an opinion that such statement, report, papers will assist in deciding the dispute effectually. Therefore, in the absence of such opinion, no report, statement, paper, if irrelevant or inadmissible, under the Evidence Act, can be received as evidence. 24. That apart, in view of the provisions prescribed by Section 294 of the Code of Criminal Procedure, when any document is filed before court, the parties concerned, as the case may be, is to be called upon to admit or deny the genuineness of each of such document and if the genuineness of any document is not disputed the same may be read in evidence in any inquiry, trial or other proceedings without proof of the signature of the person to whom it purports to be signed. The principle of natural justice and fair play also demands that no material, documents or papers should be taken into consideration and used against a person, without bringing the same to the notice of such person, and without giving him/her a fair opportunity to controvert the same. Record of the present case does not reveal that such exercise was done. 25. There is nothing on record to show that the documents or papers submitted by the respondent-husband and received as evidence by the learned trial judge, were brought to the notice of the petitioner-wife, facilitating her to refute or deny the same. Therefore, there is sufficient force in the contention, raised by the learned Counsel, appearing for the petitioner, that the said documents were relied upon by the learned trial judge, keeping the petitioner in dark about such documents. As neither the said documents nor their contents were proved and in the absence of any formation of opinion as required by Section 14 of the Act, the said documents should not have been accepted as evidence and as such no reliance ought to have been placed by such documents. 26. This is more fortified by the observation made in the case of Ramji Dayawala (supra), wherein it has been observed at paragraph 16, "Undoubtedly mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. 26. This is more fortified by the observation made in the case of Ramji Dayawala (supra), wherein it has been observed at paragraph 16, "Undoubtedly mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.". 27. In the impugned judgment and order, the learned Judge, Family Court, observed that, though he had initially granted interim maintenance allowance of Rs. 20,000/- per month in favour of the petitioners, on careful perusal of the last salary certificate, found that the respondent-husband had financial liabilities, in as much as there was likelihood of deducting his house rent allowances @ Rs.6,338/- per month and ISA allowance @Rs.3,961/- per month, in the event of his posting outside the Island. But, there is no evidence on record, whatsoever, to find that the said deductions were made from the salary of the respondent. The findings of the learned trial Judge that, there was likelihood of deduction are nothing but hypothetical and imaginary, which can't be accepted as reasonable, in the eye of law, for determining a legal dispute. All legal disputes need to be decided on the basis of legal evidence and based on reasons. 28. The learned trial judge also observed that, on careful examination of the papers, submitted before the court by the opposite party, it appeared that the opposite party had liabilities to repay Bank loan and private loan, but the learned trial judge has failed to mention the nature and particulars of papers considered by him. There is nothing on record to show as to what papers, and issued by which authority, were relied on, which led the learned trial judge to believe that the respondent opposite party had the liabilities to pay Bank loan and private loan etc. There is nothing on record to show as to what papers, and issued by which authority, were relied on, which led the learned trial judge to believe that the respondent opposite party had the liabilities to pay Bank loan and private loan etc. The pleadings made in the written statements can't be substitute for evidence and such statements made in the pleadings can't be deemed to be proof in support of the claim. Therefore, the said findings, recorded by the learned trial Judge, are not based on reasons and evidence. 29. Admittedly, as revealed from the impugned judgment, the learned trial judge relied on the papers submitted by the respondent. The said papers have not been adduced as evidence or exhibited or admitted by the petitioner. Even the papers have not marked to indicate as to what paper was so relied on. Hence, there is no difficulty in holding that the said papers, the particulars and nature of which were neither disclosed nor made known to the petitioner, requiring her either to admit or deny, can't be treated as evidence in the eye of law. Therefore, I have no hesitation in holding that the provisions of Section 14 of the Act was not duly complied with, and as such the acceptance of those papers, which led the learned trial Judge to modify the earlier amount was not based on evidence and as such not lawful. 30. That apart, the Act has not dispensed with the requirement of adducing evidence by examining witnesses in support of the claim and counter claim. 31. 30. That apart, the Act has not dispensed with the requirement of adducing evidence by examining witnesses in support of the claim and counter claim. 31. The Supreme Court, in the case of Sohan Lal (supra), at paragraph 3, observed "The hallmark of a judgment/order and exercise of judicial power by a judicial forum is to disclose the reasons for its decision and giving of reasons has been always insisted upon as one of the fundamentals of sound administration justice-delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice." The Supreme Court further observed "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind." 32. In the case of Keshav Bahadur (supra), at paragraph 9, it has been observed "When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself." 33. In the case of Skyline Education Institute (supra), the Supreme Court, referring to the case of Wander Ltd. v. Antox India (P) Ltd. (1990) Supp SCC 727, has laid stress on the need of exercising discretion reasonably and in a judicial manner. 34. In the case of Kuldeep Singh (supra), the Supreme Court in paragraphs 19 and 20, observed 19. Discretion is to know through law what is just. Where a judge has and exercises a judicial discretion his order is unappealable unless he did so under a mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did. Nor any one of the reasons attempted to be enumerated by the High Court in this case could in law be viewed as either relevant or reasonable reasons carrying even any resemblance of nexus in adjudging the quantum of punishment in respect of an offence punishable under the Act. 20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary.) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary.). 35. Indicating the need of recording reasons in the decision making process, the supreme Court, in the case of Kranti Associates (supra), has made the following observations: 47. Summarizing the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defense of Judicial Candor: (1987) 100 Harvard law Review 731-37. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija vs. Spain (1994)19 EHRR 553, EHRR, at 562 para 29 and Anya vs. University of Oxford 2001 EWCA Civil 405 (CA), wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process. 36. In the case of R. Dhandapani (supra) the Supreme Court observed. The reliefs granted by the courts must be seen to the logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. The aforesaid principle has been reiterated in the case of Kerala Solvent Extractions Ltd. (supra). 37. In the case of K.S. Gandhi (supra), the Supreme Court observed. Unless the rule expressly or by necessary implications excludes recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure. The need for recording of reasons is greater in a case where the order is passed at the original stage. 38. Section 15 of the Act, which provides the procedure of examination of witnesses, reads as follows: 15. Record of 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. 39. From the above statutory provision, it is clear that, though it is not necessary to record the evidence at length, it is obligatory (the word shall has been used) on the part of the Judge of a Family Court to record or cause to be recorded a memorandum of the substance of the deposition. In the present case, the learned judge committed error by failing to comply with the said statutory provision. 40. In the present case, the learned judge committed error by failing to comply with the said statutory provision. 40. Admittedly, the learned trial judge, on the first day of filing the petition, granted interim maintenance allowance @ Rs.20,000/- per month. While granting the said interim maintenance, the learned trial Judge took into consideration that the monthly salary of the respondent was Rs. 52,832/-. According to the respondent, as stated in his written statement, an amount of Rs. 600/- was liable to be deducted from the said salary due to wrong fixation and that there was likelihood of deduction of some of his allowances, but there is no evidence on record to find that the allowances were deducted from his said salary or that the authority had contemplated to reduce the salary of the respondent from a particular date. Mere statement/plea that some amount would be deducted can't be accepted as evidence. There can be no dispute that, in order to decide the quantum of maintenance allowance to be paid by the husband/father, the Court is required to determine the income of the person concerned as well as the necessity of the claimants, keeping in mind the status, standard and the comfort enjoyed by them during their stay with such person. 41. Mr. Rathor, learned Counsel, appearing for the respondent, referring to the decision in the case of Saygo Bai (supra), has submitted that, as the Supreme Court had granted maintenance allowance @ Rs.1500/, payable by a person earning Rs. 10,000/- per month, in the case at hand, the learned trial judge committed no error by granting maintenance allowance @ Rs.12,000/-, payable by the respondent. In the above referred case, the appellant Smt. Saygo Bai was the wife of a police constable. In the present case, the claimant-petitioners are the wife and the daughter of a highly placed officer of the rank of Deputy Director (Health), whose gross salary per month, at the relevant time was about Rs. 50,000/-. 42. It is settled principle that in fixing the amount of maintenance allowance, the status, standard and the comfort, enjoyed by the claimant(s) during her/his stay with the person concerned and amount of money required for providing proper education and also for upbringing the child commensurating with the standard of the day, is to be kept in mind. 50,000/-. 42. It is settled principle that in fixing the amount of maintenance allowance, the status, standard and the comfort, enjoyed by the claimant(s) during her/his stay with the person concerned and amount of money required for providing proper education and also for upbringing the child commensurating with the standard of the day, is to be kept in mind. Therefore, the amount may differ from case to case, person to person, depending on the status and standard of living. There can't be any fixed formula or rate for fixing such maintenance. Therefore, the amount granted in the above referred case can't be sufficient for the present petitioners also. During the course of argument, the learned senior counsel, appearing for the petitioner, submitted that the said salary was the pre-revised salary fixed prior to the award of the 6th Pay Commission and that as by the 6th Pay Commission award, the salary of the respondent has been sufficiently enhanced, the petitioner should have been given an opportunity to establish the amount of salary drawn by the respondent on the basis of the revised sale, following the 6th Pay Commission award. Therefore, it has been contended that the correct income of the respondent has not been determined and that the learned trial Judge, committed error by failing to frame point for determination (i.e. issue) regarding the income of the respondent and also by reducing/modifying the amount granted by the interim order, without any evidence on record in support of such reduction. There can be no dispute that, in order to determine the appropriate amount of maintenance allowance, the party concerned should be given a fair opportunity to establish its case and the court should make an endeavour to find out the correct amount of income of the party concerned. If the respondent was drawing higher salary, on the basis of the 6th Pay Commission's award, then the petitioner should have been given an opportunity to establish that fact and the quantum of maintenance should have been fixed on the basis of such revised salary, if any. 43. The order sheets of the proceeding do not indicate that the parties, more particularly, the petitioner was granted any opportunity to adduce evidence. 43. The order sheets of the proceeding do not indicate that the parties, more particularly, the petitioner was granted any opportunity to adduce evidence. Hence, I find sufficient force in the contention of the learned Counsel, appearing for the petitioner, that the learned trial Judge failed to properly decide the actual income of the respondent and also to fix the appropriate rate of maintenance. 44. The learned Counsel appearing for the petitioner, has further submitted, that the learned trial judge, in fixing the maintenance allowance at Rs. 12,000/-, did not base such decision on any evidence or reasons. In his judgment aforesaid, the learned trial judge came to the finding that Rs. 4,000/- to Rs. 5,000/- would be sufficient for the minor daughter, while Rs. 5,000/- would be sufficient for the maintenance of the petitioner-wife. With the above findings, the learned trial judge came to the conclusion that it would be sufficient to grant maintenance allowance @ Rs.12,000/- per month to the claimant-petitioners. I fail to find any sufficient reason/evidence, on what basis, the learned trial judge could conclude, that an amount of Rs. 9,000/- to Rs. 10,000/- (i.e. Rs. 4,000/-/Rs.5,000/- + Rs. 5,000/-), would be sufficient for maintenance of the petitioners. That apart, coming to such a conclusion regarding the required amount, the learned Judge finally fixed maintenance at Rs. 12,000/-. There is no cogent reason or basis for fixing the maintenance allowance at Rs. 12,000/- per month in respect of the petitioners, who are the wife and daughter, respectively, of a highly place officer of the rank of Deputy Director (Health). There is nothing on record to find that the status and comfort enjoyed by the petitioner and her daughter, during their stay with the respondent was taken into consideration. 45. Section 9 of the Act, provides that, in every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding. 46. The learned Judge, Family Court, in his judgment and order, has stated that, during the course of hearing, he had heard the parties regarding their conciliation and found that it was not possible to reunite the parties. 46. The learned Judge, Family Court, in his judgment and order, has stated that, during the course of hearing, he had heard the parties regarding their conciliation and found that it was not possible to reunite the parties. The matter was heard on 13.07.2009 and the judgment was passed on 15.07.2009. The order sheets, wherein orders were passed on 16.04.2009, 25.04.2009, 30.05.2009, 09.07.2009, 13.07.2009 and 15.07.2009, do not indicate that any initiative was taken for settlement of the dispute or that, for that purpose, the matter was referred to the conciliators or the counselor for necessary counseling and mediation. Fact remains that the petitioner has been willing to join family life with the respondent. Therefore, in the absence of anything in the order sheet, regarding initiation of reconciliation process, it can't be ascertained as to what steps was taken for settlement. On 09.07.2009, the respondent filed his written statement and by the order, dated 09.07.2009, the matter was fixed on 13.07.2009 for order. On 13.07.2009, parties were heard. Hence, it is noticed that the case was even not fixed for hearing and thus, the petitioner was not notified that the parties would be heard on 13.07.2009. 47. Section 17 of the Act, reads as follows: Judgment – 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. Therefore, it is the statutory obligation, on the part of the trial Judge to formulate the points for determination and give decisions based on reasons. Neither the order sheets nor the impugned judgment reveal that the points for determination were recorded/framed and that decisions were given accordingly. The purpose of framing the points for determination is to notify the parties about the controversy in issue and to facilitate the parties concerned to adduce evidence in respect of the controversies and in support of their respective claims. In the present case, the learned trial judge, having failed to frame the points for determination, deviated from such statutory requirement and thereby deprived the claimant-petitioners from adducing evidence in respect of relevant points for determination. 48. The failure to give opportunity to the parties, more particularly to the petitioner-wife, to adduce evidence, either oral or documentary, and non-framing of the points for determination, certainly caused much prejudice. 48. The failure to give opportunity to the parties, more particularly to the petitioner-wife, to adduce evidence, either oral or documentary, and non-framing of the points for determination, certainly caused much prejudice. As the learned trial judge, relied on the documents submitted by the respondent, it would have been fair, for ends of justice, to give an opportunity to the other side i.e. the petitioner, to controvert the said documents and also substantiate her case by adducing evidence, if so desired. As discussed, as there is nothing on record to find that such opportunity was ever given to the petitioner, I find sufficient force in the contention of the learned Counsel, appearing for the petitioner, that the documents submitted by the respondent were received by the learned trial judge, without giving any opportunity to the claimant-petitioners. That apart, as discussed earlier, the provision prescribed by Section 14 of the Act, does not dispense with the requirement of proving a document and the contents thereof, as per law. 49. In the light of the above principles laid down by the Supreme Court in the above referred cases and in view of the statutory provisions prescribed by Sections 14, 15 and 17 of the Act, I have no hesitation in holding that the learned Judge, Family Court, fixed the maintenance allowance @ Rs.12,000/-, without showing sufficient reasons and without cogent evidence on record, with regard to the income of the respondent-opposite party and the requirement/necessity of the wife and the daughter of the respondent. Therefore, I am inclined to hold that the said fixation, resulting reduction of amount, which was awarded as interim maintenance, is based on no evidence and the same is bereft of sufficient reasons and as such the same can't be held to be just and proper maintenance allowance. That apart, as discussed above, the said amount has been fixed without giving sufficient opportunity to the petitioner to establish her claim. 50. In the impugned judgment, the learned trial Judge observed "It appears that the mind of the opposite party has been poisoned by the conduct and cruel behaviour of the petitioner No. 1...." As contended by the learned Counsel for the petitioner, there is no evidence, on record, regarding cruel behaviour or conduct, which could amount to poisoning the mind of the respondent. That apart, the learned Judge has further observed "It is fact that the attitude of the petitioner No. 1 at present is encouraging to heal up the relationship, but the past conduct of the petitioner No. 1 including calling the husband as 'Harizon' and a 'son of a prostitute' and misbehaving with the parents'-in-laws had definitely crated strong blow to the mind of the husband and in the situation, he was found no longer interested to live together with the wife petitioner No. 1 particularly when he has the apprehension of getting torture both mentally and physically from the wife". The learned Counsel appearing for the petitioner has submitted that those observations are based on no evidence and as such, being unwarranted, are liable to be quashed. As discussed earlier, there is not an iota of evidence in support of the said observations. The learned Judge has borrowed those comments from the written statement, filed by the respondent. Drawing of such adverse observations, more particularly, that the petitioner poisoned the mind of the opposite party by her conduct and cruel behaviour, that she called him 'harizon' and a 'son of prostitute' and that she misbehaved with her parents-in-law, without any evidence and without giving the petitioner an opportunity to refute the same, are not fair and just. Certainly, such observations will adversely affect her conduct causing prejudice. Therefore, in my considered opinion the said observations can't be allowed to remain. Hence, the said observations shall stand expunged. 51. In view of what has been discussed above, I find sufficient merit in this revision petition, requiring interference with the impugned judgment and order. Accordingly, the impugned judgment and order, dated 15.07.2009, is set aside and quashed. 52. As the matter involves examination of witnesses and production of evidence, both oral and documentary, I find it to be a fit case to remand to the trial court for disposal afresh. Therefore, the matter is remanded to the Family Court for fresh disposal by giving opportunities to both the parties for proving their cases as per law. 52. As the matter involves examination of witnesses and production of evidence, both oral and documentary, I find it to be a fit case to remand to the trial court for disposal afresh. Therefore, the matter is remanded to the Family Court for fresh disposal by giving opportunities to both the parties for proving their cases as per law. It is made clear that the respondent shall continue to pay interim maintenance allowance @ Rs.20,000/- (rupees twenty thousand) only per month to the claimant petitioners, as earlier granted by the learned Judge, Family Court, vide order, dated 25.04.2009 w.e.f. this date, till the date of passing an appropriate order at the time of disposal of the matter by the learned Judge, Family Court. It is hoped and expected that the learned Judge, Family Court, shall make an endeavour to dispose of the matter, within a period of 2(two) months from the date of receipt of the copy of this judgment and order along with the records. Parties are directed to appear before the learned trial Judge on or before 06.06.2011. 53. The Registry shall return the relevant Records along with the copy of this judgment and order so as to reach the Family Court on or before the said date.