JUDGMENT
Mohini Kapur, J.
1. The Judge of the Family Court, Jaipur by his order dated 4-3-1992 granted maintenance to respondent No, 1, wife of the appellant and the respondents 2 and 3, daughters of the appellant on an application moved by them on 5th July, 1989. He has allowed Rs. 350/- per month to the wife and Rs. 150/- each to the two daughters from the date of application i.e. 5-7-89. Before coming to the points raised by the learned Counsel for the parties, brief facts of the case may be looked into. It is an admitted position that the appellant and the respondent No. 1 were married on 18-5-1975 and they had three children. Eldest is the son Rahul, who is presently living with the appellant. The two daughters are living with the mother. According to the respondent No. 1, the relations between husband and wife were cordial upto 1986, but thereafter the appellant started treating her with cruelty and he used to often beat her. In order to bring bad name he even filed a complaint, but she continued to bear all the insults and lived with him till October, 1988 when she was turned out of the house. Again her mother intervened and she was admitted to the house of the appellant but seven days after Diwali in the year 1988 she was beaten and turned out and thereafter she has been staying with her mother. In the application for maintenance it was alleged by the respondent No. 1 that the appellant had married another woman and the children faced problem and came to her on 18-5-1989. However, it was mentioned that the respondent No. 1 had no means of income while the appellant was earning Rs. 3,000/- by working in the NBC and had his personal money lending business, by which he earned Rs. 2000/- per month.
2. The appellant filed a reply, in which he alleged that in Jan. 1985 one man by name of Manohar Lal Kumawat came in their neighbourhood and gradually developed intimate relations with the respondent No. 1. She persuaded the appellant to give him a loan of Rs. 46,000/-. Then on 2-7-1985 the respondent No. 1 went away with this Manohar Lal Kumawat leaving behind the house and the children and after searching for her at various places, the appellant lodged a report at Police Station Sodala. The police then recovered Manohar Lal Kumawat and the respondent No. 1 from a house in Prem Nagar, Jhotwara and produced them before the Court. The statement of Smt. Santosh, respondent No. 1 was recorded under Section 164 Cr. P.C. and then she was sent to Mahila Sadan. According to the appellant the respondent No. a never came to his house thereafter and there was no question of treating her with cruelty or turning her out of the house. It was only on 18-5-1989 that she took away the children from the appellant’s house but then the son Rahul came back to his father on 15-10-1990. It was alleged that the respondent No. 1 worked as receptionist in a Hospital and was earning Rs. 1,500/- per month. He pleaded that he was prepared to keep his daughters with him. The respondent No. 1 got an agreement executed on 20-8-1985, which was attested by the Notary Public and in this she and Manohar Lal Kumawat declared that they were living as husband and wife. Thus, the claim of the respondent No. 1 for maintenance was contested on the ground that the respondent No. 1 had married again and that she was leading unchaste married life. The appellant denied his second marriage.
3. By an application dated 25-7-1991 the appellant produced photostat copies of certain documents and prayed that he would produce certified copies of these documents after obtaining them from the Court of Additional Civil Judge No. 7 Jaipur, where they were presented in original. These documents are, a will executed by Manohar Lal Kumawat in favour of respondent No. 1, muktyarnama, and one agreement executed between Manohar Lal Kumawat and the respondent No. 1, some letters written by Manohar Lal Kumawat to the respondent No. 1, some letters written by Manohar Lal Kumawat to the respondent No. 1, the complaint tiled by the appellant and the order of the Court of Addl. Chief Judicial Magistrate No. 7 Jaipur City, Jaipur, dated 25-9-1989 by which he framed charges against the respondent No. 1 and Manohar Lal Kumawat for offence under Section 497 IPC. The order dated 31 10-1986 by which cognizance was taken was also produced and certified copies of some letters of Manohar Lal Kumawat to respondent No. 1 were produced.
4. In oral evidence the respondent No. 1 examined herself and her mother while the appellant examined himself and another witness Banwari Lal. The learned Judge of the Family Court held that the respondent No. 1 was not earning anything, while the appellant was earning Rs. 2600/- per month and that the appellant had refused to maintain his wife and two daughters. While considering the question whether the respondent No. 1 was living in adultery, the learned Judge observed that the complaint was an admission of the appellant himself and the order taking cognizance and framing charge was not a proof of the fact that the respondent No. 1 was living in adultery. Pendency of a criminal case was not conclusive evidence of a particular fact. For the letters alleged to have been written by Manohar Lal Kumawat to respondent No. 1, it was said that they were not proved and even this Manohar Lal Kumawat was not produced as a witness. For the will, muktyarnama and agreement, the learned Judge stated that they were photostat copies and the original had not been produced before him and the photostat copies could not be relied in evidence and the learned Judge further held that no witness was examined to prove these documents. It was further observed that Santosh was not confronted with her signatures on the agreement and in absence of proving the signatures of Santosh these documents became meaningless. As for the admission of Santosh in her statement under Section 164 Cr. P.C. that she was voluntarily residing with Manohar Lal Kumawat it was stated that this fact had not been proved by producing the certified copy of the statement under Section 164 Cr. P.C. The rebuttal of the respondent No. 1 in her statement that false allegations have been levelled against her that she ran away with Manohar Lal Kumawat was considered sufficient to hold that the appellant had not been able to prove that the respondent No. 1 Santosh was living with Manohar Lal Kumawat. The mother of the respondent No. 1 who appeared as a witness has stated that Smt. Santosh’ never lived with Manohar Lal Kumawat and the police never took away Santosh and she never stayed in Seva Sadan. The appellant could have supported these allegations by documentary evidence but he failed to do so, hence the learned Judge held that he had not been able to discharge his burden. The statement of Sent. Santosh that she was treated cruelly by the appellant was believed and as she had been turned out of the house she was held entitled to get maintenance from the appellant.
5. The learned Counsel for the appellant has mainly contended that the question which arises in this appeal is as to what procedure should he followed by the Family Court in proceedings when the matter is heard before the Family Court in the absence of legal practitioners. Section 14 of the Family Courts Act, 1984 (hereinafter referred to as the Act of 1984) makes a provision for receiving in evidence, any report, statement, documents information cthat may, in the opinion of the Court assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act. It is contended that the appellant had produced certain documents before the Court and had brought it to the notice of the Court that criminal proceedings had been taken by the appellant against the respondent and in those proceedings the respondent was recovered from the house of Manohar Lal Kumawat and when she was produced before the Magistrate her statement under Section 164 Cr, P.C. was recorded and all these matters were relevant which ought to have been noticed by the Court. A Will, power of attorney and letters written by Manohar Lal Kumawat were also produced. These documents were not looked into on the ground that they had not been proved.
6. Even the application for calling the file in which the original documents had been filed was not attended to and the file was not summoned, with the result that prejudice has been caused to the appellant. His specific plea that his wife was not entitled to maintenance because she was living in adultery was not looked into. The documents produced by him was an attempt to place on record circumstances and opportunity to show that the respondent was living in adultery. Reliance has been placed on Devyani v. Kantilal, (1963 Bombay 98), Subarama Reddiar v. Saraswathi (AIR 1967 Mad. 85). and Tribal Singh v. Smt. Bimla Devi, (AIR 1959 J & K 72). In these decisions it has been held that direct evidence of adultery is not easily available and proof of reasonable opportunity of having sexual intercourse is sufficient.
7. On the other hand the learned Counsel for the respondent has contended that this is a case where the wife was treated with cruelty by the husband and even after they had lived together for ten years and the wife had born three children, the situation became so pathetic that the neighbours had to take care of the wife. On this basis the whole story has been made out to show neglect on the part of the applicant. Referring to Section 14 of the Act of 1984 it is contended that this provision excludes the application of the Evidence Act, but then this is only a permissible provision and if certain documents are to be relied upon then a person against whom they are to be used has to be confronted with them. Relying on Ramjanam Singh v. Bihar State, (AIR 1956 SC 643), and Bhagwan Singh v. State of Punjab, (AIR 1952 SC 214) it is contended that statement made in a letter cannot be looked into. Som Nath v. Union of India, (AIR 1971 SC 1910) has been cited in order to show as to how and when a statement made by a witness can be used. He has to be confronted with the statement under Section 145 of the Evidence Act.
8. Coming to the facts and circumstances of the case it had been contended that the appellant has forged documents in order to create evidence against the respondent and these documents by themselves would not amount to saying that the respondent is living in adultery and is not entitled to maintenance. In Chandra Mohini v. Avinash Prasad, (AIR 1967 SC 581) it was held that mere fact some male relation writes improper letters to a married woman, does not necessarily prove that there was illicit relationship between writer of the letters and the married woman who received them. It has been contended that the respondent is living with her mother along with two daughters and it cannot be said that she is living in adultery so as to refuse maintenance to her when she has been turned out of by her husband’s house.
9. We have considered the contentions raised on behalf of both the sides. Before looking into the oral evidence which has been led by the parties, it is necessary to look into the implications of Sections 13 and 14 of the Act of 1984. These two provisions read as under :
“13. Right to legal representation — Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right to be represented by a legal practitioner :Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae,
14. Application of Indian Evidence Act, 1872. A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).”
10. The Family Courts Act has been enacted so that disputes within the family may get priority and be disposed of expeditiously. One of the objects is also to see that efforts are made to bring about amicable settlement. For ensuring speedy disposal it has been thought fit that the Family Courts should not enter into legal rigours and also the complicated principles about the admissibility of documents under the Indian Evidence Act. The Family Court has been left free to receive any evidence or material which assists it to deal effectually with a dispute and the provisions of the Indian Evidence Act would not be applicable.
11. The fact that the appearance of legal practitioners is excluded casts a heavy burden on the Judge of the Family Court in deciding cases. He becomes the Judge as well as Counsellor of the parties. When the case of the parties is placed before him and he knows it well that the parties themselves do not know as to how the documents are to be proved or how questions are to be put in cross-examination for purposes of seeking explanation, then it is the duty of the Judge to step in and see to it that all material facts are brought in evidence and if necessary the parties are confronted by relevant questions. The husband and wife who appear before the Family Court are not expected to be skilful in the art of cross-examination. The guidance has to be provided by the Judge Family Court himself. It is wrong to reject evidence merely because some questions about it were not put to the other side in cross-examination.
12. In order to obviate the difficulty of the parties themselves as to what evidence would be admissible strictly under the Indian Evidence Act, the Family Court has been given a free hand to receive the report; statements, documents information or any other material in evidence which may assist in effectually dealing with the dispute. At the same time it may also be said that the Family Court can suggest to the parties as to which witness they should produce in order, to establish their case and the party of one of them should not be made to suffer on account of the fact that they have to deal with the case without the aid of legal practitioner.
13. This Court in Shri Gopal v. Smt. Rukmani Devi and Anr. (to which one of us viz. Justice Kapur was a party), D.B. Cr. Appeal No. 98 of 1991 decided on 8th July, 1992 had an occasion to look into the provisions of Section 14 of the Act and it was observed as under :
Section 14 of the Family Courts Act provides for exception to the general rule of evidence regarding admissibility of statements and documents if permissible by the Court etc. It has been so provided looking to the nature of the cases which are decided by the Family Courts. The Court should not go into technicality and should take a decision on the material before it in a broad based manner. The parties appear before the Court personally and advocates are not allowed, hence the technical aspect is to be ignored and whatever material is placed before the Court, which it considers necessary to assist it and to deal it effectively, can be looked into. Section 14 of the Family Courts Act is a special legislation and the principles of admissibility of documents as provided under the Evidence Act are not relevant in such cases.”
14. In the present case we would not like to discuss the documentary evidence produced by the appellant as we consider that this is a fit case which should be sent back to the Family Court for purposes of a fresh decision after following the provisions laid down in Section 14 of the Act and after calling the record of the case in which the original documents have been placed. The provision of Section 145 of the Evidence Act would not be applicable in a technical manner so as to say that each and every portion of a previous statement has to be confronted with. But when there is a statement under Section 164 Cr. P.C of the respondent then atleast the Judge himself could have asked about the circumstances in which she was produced before the Court or looked into the relevant file to know about it. When circumstances are brought to the notice of the Court, the Court can itself call for the documents even if the parties do not produce the same. The statement under Section 164 Cr.P.C. is a relevant document and it is the statement of the respondent herself and not in the nature of letter written by a third person. In this matter the case of the appellant has been disbelieved on the ground that he did not call Manohar Lal Kumawat as a witness; he did not produce the certified copy of the statement under Section 164 Cr.P.C., did not confront the respondent with the material on which he wanted to rely, which are all technical matters and he object of the Act is to avoid technicalities as far as possible. It may be mentioned here that when the Judge of the Family Court deals with the witnesses it is open to him to call that witness for understanding the nature of the dispute between the parties. Grown up children can also be called and questioned if not as a regular witness then atleast for purposes of bringing about conciliation. It is not proper for the Judge of the Family Court to leave every thing in the hands of the parties, who are not conversant with the procedure of the Court.
15. For the reasons discussed above, we allow this appeal and set aside the order of the learned Judge of the Family Court and send the case back to him for fresh decision after giving an opportunity to the parties to lead evidence and cross-examine after calling the record which the appellant wants to rely open.
16. It may be mentioned here that so far as maintenance allowed to the two daughters is concerned there is no dispute about it and the appellant would continue to pay the same till the matter in decided afresh by the Family Court. The parties are directed to appear before the Judge Family Court on 17.5.93.