HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal (M) No. 105 of2008 Appellant Respondent Harish Bhagwani Vs. Smt. Rekha Bhagwani Order for consideration 1 Sd/- R.N. Chandrakar Judge _ Hon'ble Shri Dhirendra Mishra. J. Q OL^^- ^ j£^ta ^te^' Post for pronouncement of order on Sd/- ^ M ^^' HIGH COURT OF CHHARTTISGARH AT BILASPUR CORAM: Hon'ble Shri Dhirendra Mishra & Hon'ble ShriRananath Chandrakar. JJ Appellant Respondent '•/-•- First Appeal (M) No. 105 of 2008 Harish Bhagwani, aged about 28 years, s/o. Shri Narayan Das Bhagwani, r/o. Sindhi Colony,- Jarahabhata, District Bilaspur (CG). Versus Smt. Rekha Bhagwani, aged about 26 years, w/o. Harish Bhagwani, c/o. Nanakram Shyamnani, Sudama Nagar, Hatri Bazar, Tikrapara, Distict Raipur ^ (Appeal under Section 19 ofthe Family Court Act, 1984) , Present: Shri Malay Kumar Bhaduri, counsel for the appellant. Shri Satyendra Sahu, counsel for the respondent. O R E ER (Passed on /^A dayofMay, 2010) Per Rananath ChandrakaL J^ Challenge in this appeal is to the judgment and decree dated 22-8-2008 passed by the learned Principal Judge, Family Court, Raipur,in Case No.362-A/2007, whereby the learned Judge, Family Court dismissed the petition filed by the appellanVhusband under Section 13 (1) of the Hindu Marriage Act, 1955 (for short, "the Act") for a decree of dissolution of marriage. 2) Apart from other grounds, learned counsel for the appellant has also drawn our attention towards the order sheets dated 30-4-2007, 16- 7-2008 & 31-7-2008 of the Family Court as also towards the affidavits of \ the appellant dated 28-4-2007 and Narayan Bhagwani, the father of the appellant dated 29-7-2008 and submitted that the evidence on affidavits were taken on record. However, the learned Family Court without affording any opportunity of cross examination to the respondent, heard final arguments on 31-7-2008 and posted the matter for judgment and thereafter the impugned judgment was delivered on 22-8-2008 wherein the Family Court considered and relied upon the aforementioned affidavits against the appellant forcontradicting his statements. Thus, the Family Court committed grave error of law in appreciating the evidence. 3) On the other hand, learned counsel for the respondent argued the matter in support of the impugned judgment. 4) We have heard learned counsel for the parties and perused the record of the Family Court 5) On perusal of the record we find that after receiving the written statement from the respondent, the Family Court framed the issues on 10-2-2006 and additional issues on 15-2-2006 on the application under Order 14 Rule 5 of the C.P.C filed by the appellant. Thereafter, on 5-11- 2007 the respondent moved an application under Section 27 of the Act for return ofher "Stridhan", therefore, the Family Court again framed the issue on that point on the same day. It is also revealed from the record that on 7-3-2006 the appellant was discharged after examination and cross examination before the Family Court. Thereafter, he again adduced his evidence through affidavits dated 28-4-2007 and 16-7- 2008. He also adduced evidence of his father through affidavits dated ^^^-^ f' i, ^'^s^t '''^ ?. ^i ^. •f^Sc: 1 28-4-2007 and 29-7-2008 and copies thereof were supplied to the respondent. 6) On perusal of the affidavits of Harish Bhagwani - appellant dated 28-4-2007 and his father Narayan Bhagwani dated 29-7-2008, it is clear that they were not cross examined before the Family Court by the respondent though the same were considered and relied upon by the Family Court while appreciating the evidence in paras 11 and 15 of the impugned judgment. It is also clear that the affidavits of the appellant dated 28-4-2007 and 16-7-2008 weretaken on record vide order sheet dated 30-4-2007 and 16-7-2008 but the order sheet dated 31-7-2008 does not reveal, whether the affidavit of the father of the appellant Narayan Bhagwani dated 29-7-2008 was taken on record'thougha copy thereofwas supplied to the respondent. Thus, it is crystal clear that the appellant and his father were not cross examined before the Family Court in view pf their statements made through affidavits under Order 18 Rule 4 of the C.P.C., though the same were considered and relied upon by the Family Court against the appellant in its judgment. Thereafter, the Family Court heard final arguments on 31-7-2008 mentioning 'parties closed their case' and delivered the judgment. The procedure adopted by the learned Family Court is contrary to the procedure prescribedunder Order 18 Rule 4 of Code of Civil Procedure (for short, "the Code"). Order 18 Rule 4, sub Rule(1) of the Code stipulates that in every case, the examination-in-chiefof a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence and sub Rule (2) of Rule 4 of Order 18 of the Code further provides that the evidence (cross- s examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished tothe Court, shall be taken either by the Court or by the Commissioner appointed by it. 7) In the instant case, the examination of the affidavits of the appellant dated 28-4-2007, his father dated 29-7-2008 and the respective order sheets of the Family Court reveals that the Family Court did not call upon the appellant and his father to produce themselves for cross examination and re-examination whose examination-in-chief under Order 18 Rule 4 (1) of the Code, was recorded on affidavit. Examination-in-chief of a witness on affidavit without their examination and re-examination under Order 18 Rule 4 (2) of the Code is incomplete and the same cannot be readin evidence. Thus, the learned Family Court has committed grave error of law in appreciating the evidence by relying upon the evidence ofthe appellant and his father adduced by way of affidavits- under Order 18 Rule 4 of the C.P.C., without entering them into cross examination. It isalso apparent that the learned Family Court has nowhere either discussed or considered the evidence led by the respondent except her written statement but has only considered the evidence led by the appellant that too against him. 8) For the aforesaid discussion, we allow the appeal, set aside the impugned judgment and decree passed by learned Family Court and remand the matter to the learned Family Court for fresh adjudication after affording an opportunity of cross examination to the respondent f raju '^, and appreciating the evidence of both the parties, in accordance with law. 9) The appellant and respondent are directed to appear before the learned Family Court on 16-6-2010 forfurther proceedings. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ^