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2014 DIGILAW 96 (TRI)

Soma Rani Das v. Pradip Das

2014-02-18

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT Deepak Gupta; C.J.:- These two matters being F.A. No. 06 of 2010 and Crl. Rev. P. No. 92 of 2010 are being disposed of by a common judgment since common questions of law and facts are involved. In view of the order which we intend to pass, we are not going into the factual aspect of the matter. The Family Court vide the impugned order in the Crl. Rev. Pet. rejected the claim of the wife for grant of maintenance but granted maintenance of Rs. 2,000/- per month for the minor son. The Family Court by the impugned order in the matrimonial appeal granted a decree for restitution of conjugal rights in favour of the husband. 2. Admittedly, the parties were married to each other and one child was born out of this wedlock. Disputes arose between the parties and the wife filed a petition under Section 125 of the Cr.P.C. before the Family Court, West Tripura, Agartala claiming maintenance for herself and for her minor child. 3. This petition was filed on 24.06.2008 and was listed on 06.01.2009 on which date the learned Judge, Family Court passed an order that another case was also pending between the parties relating to restitution of conjugal rights and which case was fixed for evidence on 10.02.2009. The learned Family Judge held that it would be convenient to dispose of both the cases by a common judgment. Hence he did not record the evidence in the criminal proceeding on that. 4. After the wife had instituted the petition under Section 125 Cr.P.C. the husband also instituted a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights on 14.07.2008. In this petition the wife appeared and filed written statement and the matter was listed on 10.02.2009 for evidence. On that day the Family Court Judge was under order of transfer and the matter was adjourned. On 5th May, 2009 in the criminal proceeding it is recorded that the petitioner is present. The OP is present along with his witnesses. They are examined. In the case being T.S. (RCR) No. 145 of 2008 it was mentioned that the petitioner is present along with his witnesses. They were examined and discharged. Thereafter, the statement of the wife was recorded on 10.09.2009. On that day the statement of the wife and her witnesses was recorded. They are examined. In the case being T.S. (RCR) No. 145 of 2008 it was mentioned that the petitioner is present along with his witnesses. They were examined and discharged. Thereafter, the statement of the wife was recorded on 10.09.2009. On that day the statement of the wife and her witnesses was recorded. On perusal of records of both the cases, we find that the statements are recorded in one case and photocopies of the statement were made, got signed by the parties and the Judge took them on record of the other case. 5. When two or more cases are identical or similar in nature a Judge may be justified in recording the evidence in one case and reading that in another case. However, before doing so he must clearly specify in the order that he feels that in the facts and circumstances of the case the evidence led in one case should be read in the other case. Judicial records must be proper and must reflect the true state of affairs and should be an accurate record of what has transpired in court. Without passing a judicial order justifying such action the evidence recorded in one case cannot be read in another case. 6. In proceedings under the Family Courts Act the parties do not have the benefit of being represented by any counsel. They are lay persons. They do not know how and in what manner evidence is recorded in court. Therefore, an onerous duty is casts upon the presiding officer of the Family Court as well as the counselor attached to the Family Court to properly advise the parties and inform them that in what manner evidence has to be recorded. This Court in MAT App. No. 02 of 2009 and Crl. Rev. P. No. 67 of 2008 has given certain directions which need no repetition. 7. In the present case the wife was to lead evidence only on the issue of grant of maintenance for herself and her child. In the other case being T.S. (RCR) No. 145 of 2008 the onus was on the husband to prove that the wife had deserted him. Nobody explained either to the wife or the husband that both the cases had been taken up together and that the evidence recorded in one case would be read in the other case. 8. In the other case being T.S. (RCR) No. 145 of 2008 the onus was on the husband to prove that the wife had deserted him. Nobody explained either to the wife or the husband that both the cases had been taken up together and that the evidence recorded in one case would be read in the other case. 8. We have gone through the entire order sheet but find that there is no such order on the fact. What is even more surprising is that there is no cross examination to any of the witnesses. In MAT App. No. 02 of 2009 and Crl. Rev. P. No. 67 of 2008 we have clearly set out the importance of cross examination and if parties are not given opportunity to cross examine the other side or its witnesses then it is impossible to extract the truth. 9. It is true that the Family Court can devise its own procedure but this procedure must be a procedure which follows the rules of natural justice. The Family Court and the counselor attached to the Family Court are duty bound to explain to the parties what procedure they are following so that the parties are aware of how they are to proceed in the matter. In case parties are represented by any counsel the Family Court may not explain the procedure but if they are not represented by any counsel then the Family Court or the counselor attached to the Family Court must explain the procedure and this must be reflected in the records of the case also. In the present case the evidence led in one case has been read in the other. The person who was petitioner in one case and defendant in the other has been asked to lead evidence together in both the cases without the cases being consolidated or without any order being passed that the evidence led in one case would be read in the other. 10. We are constrained to observe that time and again we are finding that the Family Judge is deciding matters in a whimsical fashion without giving parties adequate opportunity of putting forth their cases. We would like to make it clear that though the Family Court is not to function like a court still the rules of natural justice and the basic principles of jurisprudence must be followed. We would like to make it clear that though the Family Court is not to function like a court still the rules of natural justice and the basic principles of jurisprudence must be followed. The Family Court is an adjudicatory body. It may not follow the strict procedure of the CPC or the Evidence Act but its procedure must be according to the rules of natural justice and must be a procedure which has been explained to and understood by the parties. In the present case no proper procedure was followed. 11. Therefore, we are of the considered view that both the orders will have to be set aside on this ground. The matters are remanded to the learned Family Court who shall after following what we have stated hereinabove again record the evidence. In case the parties do not want the evidence to be recorded again then he must give the parties an opportunity to cross examine the witnesses and only thereafter decide the case. 12. At this stage, we may point out that the wife has only challenged the order with regard to the non-grant of maintenance and the decree of restitution of conjugal rights. There is no challenge to the order granting maintenance to the minor son and therefore that portion of the order is upheld and shall continue to operate. The matters are disposed of accordingly.