1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1355 OF 2010 Patrhouse D’Souza. .. Petitioner Vs Savitri Patrhouse D’Souza. .. Respondent -- Shri M.A. Dudhane and Shri S.S. Redekar for the Petitioner. -- CORAM : A.S.OKA, J. DATE : 26TH APRIL, 2010 P.C: . On 4th March, 2010, notice for final disposal of this writ petition at the admission stage has been issued. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 14th January, 2010 passed by the learned Judge of the Family Court by which an application made by the Petitioner at exhibit 38 has been rejected. 2. The Petitioner is the Respondent in the Petition No.A-1546 of 2009 filed by the Respondent herein. The said Petition is being heard along with the Maintenance Petition No.E-104 of 2007. 2 3. An application was made at Exhibit – 38 by the Petitioner for permitting a witness to be examined by filing her affidavit in lieu of examination-in-chief. In fact, affidavit in lieu of examination-in-chief was tendered along with the application. By the impugned order, the said application has been rejected by the learned Judge of the Family Court. 4. The learned counsel appearing for the Petitioner submitted that Rule 4 of Order XVIII of the Code of Civil Procedure, 1908 ( hereinafter referred to as the said Code ) as amended with effect from 1st July, 2002 will apply to the proceedings before the Family Court. He submitted that in the circumstances, the Family Court could not have denied an opportunity to file an affidavit in lieu of examination-in-chief of the said witness. 5. I have considered the submissions. Under Section 10 of the Family Court Act, 1984 ( hereinafter referred to as the said Act of 1984 ), it is provided that subject to the other provisions of the said Act of 1984 and the rules framed there under, the provisions of the said Code and of any other law for the time being in force shall apply to the suits and proceedings before a Family Court and for the purposes of the provisions of the said Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Courts. It will be also necessary to consider Section 16 of the said Act of 1984 which reads thus:- “16. Evidence of formal character on affidavit – (1) The evidence of any person where such evidence is of a 3 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.” 6. The said Section indicates that there is a power vesting in the Family Court to record evidence of any person by an affidavit where evidence of such witness is of a formal character. The question is whether the Rule 4 of Order XVIII of the said Code as amended with effect from 1st July, 2002 will apply to the proceedings before the Family Court. Under Section 20 of the said Act of 1984 overriding effect has been given to the provisions of the said Act of 1984. Therefore, the provisions of Sections 10, 16 and 20 of the said Act of 1984 will have to be reconciled. Section 10 thereof provides that the provisions of the said Code will apply to the proceedings before the Family Court subject to the other provisions of the said Act, 1984. Section 16 permits evidence of certain witnesses to be recorded by an affidavit. By virtue of Section 20 of the said Act of 1984, Section 16 will have to be given an overriding effect over Sub-rule 4 of Order XVIII of the said Code. 7. In the present case, the affidavit sought to be tendered is not of the Petitioner but it is of a witness of the Petitioner. In Paragraphs 3 to 5 of the impugned order, the learned Judge has observed thus:- 4 “3. Certainly as per above judgment, the evidence of witness is to be accepted by way of affidavit in lieu of examination in chief but the present case is before the Family Court. It is related to the matrimonial dispute and the parties had to give immediate reliefs by deciding the Petition. If the affidavit of witness is accepted then the party has to give a copy to opponent’s advocate on next date. The opponent’s advocate will cross-examine the witness and both the time the witness has to appear before the court. 4. In some cases the witness did not turn up before the court after filing their evidence by way of affidavit in lieu of examination-in-chief and the court has to adjourn the matters several times. Therefore, to avoid the delay the application filed by the petitioner for examining the witness, by way of affidavit is liable to be rejected. 5. The court has to take liberal view and not to go on technicalities so also strict rules of Civil Procedure Code and Evidence Act is not applicable to Family Court. Hence, I pass the following order.” 8. The learned Judge of the Family Court has committed an error. The learned Judge ought to have considered the application made by the Petitioner in the light of the provisions of Section 16(1) of the said Act of 1984. Without examining the nature of evidence sought to be adduced by the witness of the Petitioner , by making certain general observations of sweeping nature , the learned Judge has rejected the application. The learned Judge will have to reconsider the application in the light of Section 16(1) of the said Act of 1984. In the circumstances, the impugned order will have to be quashed and set aside and the application will have to be remanded to the Family Court. 5 9. Hence, I pass the following order: (a) The impugned order dated 14th January, 2010 is quashed and set aside. (b) The Application at Exhibit -38 made by the Petitioner shall be reconsidered by the learned Judge of the Family Court in accordance with the provision of Section 16 of the Family Courts Act, 1984. (c) The Writ Petition is partly allowed in above terms with no orders as to costs. (A.S.OKA, J)