{"id":175319,"date":"2004-11-23T00:00:00","date_gmt":"2004-11-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/amar-nath-gupta-vs-state-of-u-p-and-anr-on-23-november-2004"},"modified":"2018-03-20T13:40:04","modified_gmt":"2018-03-20T08:10:04","slug":"amar-nath-gupta-vs-state-of-u-p-and-anr-on-23-november-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/amar-nath-gupta-vs-state-of-u-p-and-anr-on-23-november-2004","title":{"rendered":"Amar Nath Gupta vs State Of U.P. And Anr. on 23 November, 2004"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Amar Nath Gupta vs State Of U.P. And Anr. on 23 November, 2004<\/div>\n
Equivalent citations: 2005 (2) AWC 2093<\/div>\n
Author: U Pandey<\/div>\n
Bench: U Pandey<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Umeshwar Pandey, J.<\/p>\n
1. Heard the learned counsel for the revisionist and the learned A.G.A.\n<\/p>\n
2. This criminal revision arises out of the judgment and order dated 6.4.1999 passed by Judge, family court, Gorakhpur in Criminal Petition No. 144 of 1997 under Section 125 of the Code of Criminal Procedure and divorce petition No. 147 of 1996 under Section 13 of the Hindu Marriage Act.\n<\/p>\n
3.    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 of 1996 which is also treated    as    admissible    piece    of evidence for the purposes of disposal of Maintenance  Petition No.   144  of 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..\n<\/p>\n
4.    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 emphasise that the procedure followed by the court below in the present case was wholly erroneous in law.\n<\/p>\n
5.    It is true that Section 10, subsection (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 :\n<\/p>\n
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.\n<\/p>\n
(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.\n<\/p>\n
(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.\n<\/p>\n
6. As per sub-section (1), all the suits and proceedings except the proceedings 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 matter. Subsection (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-sections (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 been 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 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.\n<\/p>\n
7.    The argument of the learned counsel placed before the Court in the above    context,     is    further    not acceptable for the reasons that the procedure   adopted   by   the   Judge, family court for disposal of both the cases, is also in accordance with the preamble  as well  ate  the  aims  and objects of the Family Courts Act and the Court if adopts such procedure for the purposes of resolving the dispute in family matters, the outcome of the case given by the Judge, cannot be said to be legally not permissible.\n<\/p>\n
8.    While   the   draft   Bill   for   a particular   enactment   is   presented before the Parliament, it also contains the statement of objects and reasons for formulating the said law. The Bill of Family  Courts  Act,   1984,   when presented before the Parliament, its clear-cut objects  and  reasons were also   placed   before   it   and   in   the present context it would be worthwhile to reproduce Clause 2 of the aforesaid statement which is as below :\n<\/p>\n
2. The Bill, inter alia, seeks to :\n<\/p>\n
(a) provide for establishment of   family   courts   by   the   State Governments ;\n<\/p>\n
(b)  make it obligatory on the State  Governments  to set up a family court in every city or town with a population exceeding one million ;\n<\/p>\n
(c)      enable      the      State Governments   to   set   up,   such Courts, in areas other than those specified in (b) above ;\n \n\n(d)  exclusively provide within the  jurisdiction   of   the   family courts the matters relating to :\n  \n\n(i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of marriage or as to the matrimonial status of any person ;\n \n\n(ii) the property of the spouses or of either of them ;\n \n\n(iii) declaration as to the legitimacy of any person ;\n \n\n(iv) guardianship of a person or the custody of any minor ;\n \n\n(v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure ;\n \n\n(e) make it obligatory on the part of the family court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal and rigid rules of procedure shall not apply ;\n \n\n(f) provide for the association of social welfare agencies, counsellors, etc. during conciliation stage and also to secure the service of medical and welfare experts ;\n \n\n(g) provide that the parties to a dispute before a family court shall not be entitled, as of right, to be represented by legal practitioner. However, the Court may, in the interest of justice, seek assistance of a legal expert as amicus curiae ;\n \n\n(h) simplify the rules of evidence and procedure so as to enable a family court to deal effectively with a dispute ;\n \n\n(i) provide for only one right of appeal which shall lie to the High Court.\n \n\n<\/pre>\n
9. From the above Clause 2 (h), it is more than obvious that under the Act itself, the framers of the above Act intended to give enough scope to the family courts to simplify the rules of procedure for the purposes to deal with the dispute effectively. The preamble of the Act is also very clear in itself for not requiring strict adherence to the procedure prescribed in order to secure the speedy settlement of the disputes relating to marriage and family affairs. It would be proper for ready reference to reproduce the preamble of the Act as below :\n<\/p>\n
 “An Act to provide for the establishment of family courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.”\n<\/p>\n
10.   Therefore, when the aims and objects of the statute as well as its preamble talks of simplification of the procedure for the purposes to secure speedy   settlement   of  the   disputes relating to the marriage and family affairs between the parties, it is not proper to find legal or procedural fault in   the   proceeding   adopted  by  the court below in  the present matter. Strict  rule   of evidence  is   also  not required to be followed by the Courts in such matters, as per the aforesaid objects   of   the   Act   itself   for   the purposes     of     securing     speedy settlement in the matter. Had the court below stuck to the strict procedure, as provided   in   the   Code   of  Criminal Procedure     and     Code     of    Civil Procedure, both the cases one for the decree of divorce and the other for award   of maintenance  would   have been dealt with quite separately from each and for that purpose the Court would   have   to   record   the   same evidence twice consuming a lot of time of the Court as well as parties. Thus, only with an objective to secure the speedy  disposal   of the   cases,   the Judge, family court, if had adopted the procedure as followed in the present case,   it   cannot   be   said   that   he committed any legal error. Besides it, parties to the cases also did not put in any objection while the matter was being so taken up for disposal by the court    below.    In    the    facts    and circumstances, the procedure adopted by the Judge, family court cannot be said to be erroneous in law and such procedure adopted should be treated as   fully   permissible   and   followed within the spirit of the Act itself.\n<\/p>\n
11.   The court below has decided both   the   matters   by   a   common judgment, which too cannot be said to be erroneous, yet the relief to the aggrieved party against the judgment in one petition, is available by way of appeal whereas in the other petition the aggrieved party could approach the superior court in a criminal revision petition. The judgment given in the matter relating to the divorce petition is questionable only through an appeal under Section 19(1) of the Family Courts Act but the aggrieved party in the matter of award of maintenance has to approach the High Court against the judgment in a criminal revision under the provisions of Section 19(4) of the Act. The matter at hand is only a criminal revision. It is not an appeal and, therefore, the decision, which is required to be given is only with regard to the award of maintenance made by the court below under Section 125, Cr. P.C.\n<\/p>\n
12.    So far as  the merits  of the judgment   regarding   the   award   of maintenance is concerned, the Judge, family court, has fixed only a sum of Rs. 500 per month as maintenance payable to  the opposite party wife. This amount is quite meagre amount and is hardly sufficient for the wife even for the purposes to make her both ends meet. However, as there is no grievance against the quantum of maintenance award,  there is hardly any occasion for its enhancement. The court below after having discussed entire material available on the record relating to this award has found that the present revisionist-husband has income of about Rs. 2,600 per month from his salary as Railway servant. The amount of Rs.  500 per month which he has been asked to part with for the wife as maintenance is not at all questionable. The wife is living at the mercy of her parents and it is the liability of the husband to maintain her.  Thus,  the  award  given  in  the present case does not appear to be questionable at the instance of the husband.\n<\/p>\n
13.   The revision has no merit and is hereby dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Amar Nath Gupta vs State Of U.P. And Anr. on 23 November, 2004 Equivalent citations: 2005 (2) AWC 2093 Author: U Pandey Bench: U Pandey JUDGMENT Umeshwar Pandey, J. 1. Heard the learned counsel for the revisionist and the learned A.G.A. 2. This criminal revision arises out of the judgment and order […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-175319","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nAmar Nath Gupta vs State Of U.P. 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