- (1.) UMESHWAR Pandey, J. Heard the learned Counsel for the revisionist and the learned A. G. A.
(2.) THIS criminal revision arises out of the judgment and order dated 6-4-1999 passed by Judge, Family Court, Gorakhpur in Criminal Petition 144/1997 under Section 125 of the Code of Criminal Procedure and divorce petition No. 147/1996 under Section 13 of the Hindu Marriage Act. The brief background facts of the aforesaid two cases are that the parties are husband and wife and are living separately. The husband filed a divorce petition and the wife filed a petition for award of maintenance before the said Court. The Court below had taken up both the petitions together and the evidence of the parties were recorded in divorce petition No. 147/1996 which is also treated as admissible peace of evidence for the purposes of disposal of maintenance petition No. 144/1997. Thus, treating both the petitions as consolidated with common evidence, the Court below has given its decision together by one judgment which is impugned in this criminal revision. It has been contended by the learned Counsel for the revisionist-husband that the procedure adopted by the Court below treating the evidence recorded in one case as common evidence and disposing of both the cases together by one judgment is such, which is unheard of in the annuls of law and that it cannot sustain. The learned Counsel has referred to the provisions of Section 10 of the Family Courts Act, 1984, which deals with the procedure to be generally applied by the Family Court for disposal of the cases pending before it and has thus, tried to emphasis that the procedure followed by the Court below in the present case was wholly erroneous in law.
(3.) IT is true that Section 10, sub-section (1) and sub-section (2) deals with the procedure which are to be generally adopted by the Family Courts in the matter of disposal of the suits and proceedings of civil and criminal nature. IT would be appropriate to reproduce the provisions of Section 10 aforesaid as below: "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. " As per sub-section (1), all the suits and proceedings except the proceeding under Chapter IX of the Code of Criminal Procedure, which deal with the award of maintenance to the spouse, the Court is required to adopt the procedure followed by the civil Court and as given under the Code of Civil Procedure or any other law dealing with civil 4 matter. Sub-section (2) provides that in the matters of petition for award of maintenance under Section 125 Cr. P. C. , the provisions of Code of Criminal Procedure shall apply. Thus, there are no two opinions about the fact that in civil matters the proceedings before the Judge, Family Court have to be guided by the procedure as adopted in civil Courts on the line of the procedure given in C. P. C. or any other law and in the matter of award of maintenance under Section 125 Cr. P. C. , the Family Court is expected to follow the procedure as given under the Code of Criminal Procedure. But at the same time sub-section (3) aforesaid of Section 10 of the said Act provides that the Judge, Family Court is not prevented by sub- section (1) and (2) from laying down its own procedure for the purposes of reaching the truth of the facts alleged by one party and denied by the other party. In the present case the wife and husband had been litigating before the Judge, Family Court in two petitions, one for the grant of decree of divorce and the other for award of maintenance. The husband was claiming the decree of divorce on the ground of adultery etc. in which the wife had denied all the allegations pleading it to be totally false. The wife in the maintenance petition was claiming award of such maintenance stating that her husband had tortured her and turned her out forcing her to take shelter with her parents where she is living on their mercy. The husband had denied this fact and reiterated the facts, which he had pleaded in his divorce petition. So far as the facts of both the cases are concerned, they are one and the same and for deciding the two matters before the Court below it adopted a procedure, which does not appear to have been objected to by either of the parties. The Judge, Family Court had to find out the truth of the alleged facts if the wife was already pregnant when she had gone in her Gawna (Vidai after marriage) to her husband's place and for that reason only she had come to her father's place or that she had been tortured and had pushed away by the husband as a result of which she had been forced to take her parents' shelter. Since the facts of both the cases were common, the Judge, Family Court adopted a procedure of recording the evidence of both the cases together making the divorce petition as a leading case. No doubt, both the matters were separate from each other, one being a civil matter and other was of a criminal nature, yet by virtue of sub-section (3) of Section 10 aforesaid, the Court below has adopted its own procedure with a view to arrive at the truth of the facts alleged by the one party and denied by the other party because of the factual disputes in both the cases were one and the same. The procedure adopted by the Court below, does not appear to be legally erroneous in view of the aforesaid provision of sub- section (3) of Section 10 of the said Act.;