JUDGMENT 1. - This writ petition under Article 227 of the Constitution of India has been filed by the petitioner aggrieved against order dated 15.05.2015 passed by the Judge, Family Court, Bikaner ('Family Court'), whereby, the application filed by the petitioner seeking exclusion of the evidence from the record and dismissal of the petition filed by the respondent has been rejected. 2. The respondent filed a petition seeking dissolution of marriage under Section 13 of the Hindu Marriage Act, 1956 ('HM Act'). 3. A response was filed by the petitioner opposing the petition filed by the respondent. 4. Whereafter the evidence was led by the parties; when the matter was fixed for final arguments, the petitioner filed an application, inter alia, contending that the evidence by the respondent and the petitioner has been produced on affidavits; under the provisions of Section 15 of the Family Courts Act, 1984 ('the Act') evidence cannot be taken on affidavits; as the evidence has not been taken as per provisions of the Act, the evidence produced by the respondent and her witnesses cannot be read in evidence; as the evidence produced is not legal, the same produced on affidavits be excluded from the record and prayed that the petition filed by the respondent be dismissed for lack of legal evidence. 5. A reply to the application was filed by the respondent, inter alia, contending that the examination in chief has been produced on affidavits and the witnesses have been cross-examined; the affidavits have been accepted without any objection and cross-examination has already been done; under the provisions of the Act and HM Act affidavits can be produced; the matter is fixed for final arguments and no objection has been raised earlier and it was prayed that the application be dismissed. 6. After hearing both the amicus curiae appearing for the parties, the Family Court came to the conclusion that evidence of both the parties was over on 19.07.2014 and objection, if any, should have been raised at the earliest and, in absence whereof, would be treated as waiver; procedural provisions should be used in a manner that justice is not defeated and there is no unnecessary delay; parties were given sufficient time to produce evidence and they have been examined. 7. 7. On the legal aspect, the Family Court came to the conclusion that provisions of Section 15 of the Act provides for recording the evidence of the witnesses and the same must be such which saves time; Section 10 of the Act provides for applicability of Code of Civil Procedure and as provisions of Order 18 CPC provide for production of affidavits in examination in chief, dismissed the application. 8. It is submitted by learned counsel for the petitioner that the Family Court clearly fell in error in dismissing the application filed by the petitioner; it was submitted that Section 15 of the Act envisage oral evidence only and though Section 10 of the Act has made provisions of CPC applicable to the suits and proceedings before the Family Court, in view of the fact that Section 20 provides that provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, in view of express provisions of Sections 15 and 16 of the Act, provisions of Order 18 CPC cannot be applied to the proceedings before the Family Court. The Family Court has acted in contravention of provisions of Section 15 of the Act, therefore, the evidence recorded cannot be looked into by the Family Court and was liable to be excluded and, consequently, the petition filed by the respondent was liable to be dismissed and, therefore, the Family Court committed gross error in dismissing the application filed by the petitioner. 9. Reliance was placed on judgments of Allahabad High Court in the case of Dr. Anil Kumar Lal v. Additional, Principal Judge, Family Court, Lucknow : 2009 (3) CCC 684 and Arvind Kumar Verma v. Smt. Suman : 1995 (2) HLR 136. 10. I have considered the submissions made by learned counsel for the petitioner and have perused the material placed on record. 11. Anil Kumar Lal v. Additional, Principal Judge, Family Court, Lucknow : 2009 (3) CCC 684 and Arvind Kumar Verma v. Smt. Suman : 1995 (2) HLR 136. 10. I have considered the submissions made by learned counsel for the petitioner and have perused the material placed on record. 11. From the record it is apparent that after the pleadings of the parties were complete, the issues were framed by the Family Court on 27.07.2013; whereafter, the respondent - Narayan filed affidavits of four witnesses as AW-1 to AW-4 and they were cross-examined in detail on their affidavits; whereafter, on behalf of petitioner - Saraswati, four affidavits in evidence were filed and her witnesses were also cross-examined; the evidence was thus over by 19.07.2014; whereafter, the present application was filed on 19.11.2014 questioning the procedure adopted by the Family Court for the purpose of recording evidence on the issues framed by the Family Court. 12. From the above, it is apparent that the petitioner at no stage i.e. at the time of filing affidavits by the respondent, cross-examination of the witnesses on the said affidavit, herself producing evidence by way of affidavits and cross-examination of her witnesses, did not raise any objection whatsoever regarding the procedure adopted by the Family Court; whereafter, after four months, the present application was filed questioning the procedure adopted since 27.07.2013 (framing of issues) till 19.07.2014 (completion of evidence); the conduct of the petitioner in not raising any objection for all this period, rather herself being a party to the entire conduct of proceedings, inasmuch as, respondent's witnesses were cross-examined by her and she herself led her evidence by way of affidavits, clearly amounts to waiver and would operate as estoppel against the petitioner on account of such conduct. 13. The relevant provisions of the Act read as under:- "10. 13. The relevant provisions of the Act read as under:- "10. Procedure generally - (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to 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, a 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. 15. Record of oral evidence. - In suits or proceedings before a Family Court, it shall 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. 16. Evidence 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. 20. Act to have overriding effect. (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. 20. Act to have overriding effect. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." 14. A bare look at the provisions, noticed hereinbefore, reveals that subject to the other provisions of the Act, provisions of CPC and any other law apply to the suits and proceedings before the Family Court and for the purposes of the provisions of the Code, a Family Court is deemed to be a civil court and have all the powers of such court. 15. Section 15, which deals with record of oral evidence provides that in suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, can record or cause to be recorded, a memorandum of substance of what the witness deposes, and such memorandum signed by the witness and the Judge shall form part of the record. 16. Further, Section 16 provides that evidence of formal character can be given by affidavit and can be read in evidence in any suit or proceeding. Sub-section (2) of Section 16 provides for summoning and examination of person giving the affidavit, on an application. 17. Section 20 provides for overriding effect of the Act regarding anything inconsistent contained in any other Act. 18. An over all analysis of the above provisions reveals that while provisions of CPC have been made applicable for the purpose of procedure before the Family Court, Section 15 of the Act enables a Family Court to record the evidence of witness by way of memorandum of the substance of what the witness deposes and provides that 'it shall not be necessary' to record the evidence of witnesses at length. The use of expression 'it shall not be necessary' to record the evidence of witnesses at length cannot be read as a prohibition against recording of evidence at length and it cannot be said that in case instead of recording the deposition of witnesses by way of memorandum of the substance, evidence of witness at length has been recorded, the said procedure would stand vitiated. 19. The emphasis laid by learned counsel for the petitioner that evidence of only formal character can be taken on affidavit with reference to Section 16 is misplaced. The provisions of Section 16(1) have been incorporated to apparently take care of provisions of Section 1 read with Section 3 of the Evidence Act, 1872, which provides that the said Act does not apply to affidavits presented to any Court and as held by Hon'ble Supreme Court in the case of Sudha Devi v. M.P. Narayan : AIR 1988 SC 1381 that affidavits are not included in the definition of evidence in Section 3 of the Evidence Act and can be used in evidence only if the Court permits it to be so used for sufficient reasons. Even under Sub-section (2) of Section 16 of the Act, on an application of any of the parties, even the deponents of affidavits produced by way of evidence of formal character, can be cross-examined, therefore, the submissions made by learned counsel for the petitioner that it is only the evidence of formal character, which can be produced by way of affidavit and not examination in chief qua substantive evidence pertaining to the suit or proceeding before the Family Court has apparently no substance. 20. However, in case petitioner had any objection regarding filing of affidavits/applicability of Order 18 CPC, the objections/submissions should have been made at the appropriate stage, to raise the objections after long lapse of time i.e. after the entire evidence of both the parties was recorded, appears to be only a after thought and only an attempt to get out of the evidence available on record, therefore, not bona fide. 21. So far as the judgment in the case of Dr. 21. So far as the judgment in the case of Dr. Anil Kumar Lal (supra) is concerned, in the said case the objections apparently were raised when the affidavits were filed, and the objections were overruled by the Family Court and the High Court allowed the writ petition and directed recording of the evidence under Section 15 of the Act. Allahabad High Court on analysis of provisions of Sections 15 and 16 came to the conclusion that evidence of formal character alone can be permitted to be given on affidavit and not other evidence and giving of evidence on affidavit was excluded; the above judgment in the case of Dr. Anil Kumar Lal (supra) does not take into consideration the effect of the expression 'it shall not be necessary to record the evidence of witnesses at length', which essentially makes the provision an enabling provision and not prohibitory. As already discussed above, the provisions of Sections 15 and 16 do not render evidence taken on affidavit and subjected to cross examination as illegal/liable to be excluded from the record. As such, the judgments cited by learned counsel do not advance the case of the petitioner. 22. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. The stay petition is also dismissed.Petition dismissed. *******