Excelsior Correspondent
SRINAGAR, May 14: The High Court has held that no evidence should be taken on affidavit by the trial courts and affidavits sworn before a notary is not admissible in court as evidence and set aside the order whereby the trial court permitted the party to record the evidence on affidavit.
The party (wife) was directed by the Trial Magistrate to lead evidence in exparte and instead of recording the statement of the wife and her witnesses on oath, the Magistrate permitted her to file affidavits by way of evidence. After considering the affidavits filed, the Magistrate directed the husband to pay a monthly maintenance to the wife.
The petitioner-husband challenged order of Judicial Magistrate 1st Class Srinagar. Court allowed his petition and set aside the order with the direction to Trial Magistrate to record the evidence of wife in accordance with the law and thereafter decide the case on its merits.
“It shall be open to the petitioner to make a proper application before the Magistrate seeking permission to participate in the proceedings. If and when such an application is made by the petitioner, the same shall be considered by the learned Magistrate on its own merits”, Justice Sanjay Dhar directed.
Court recorded that the evidence has to be recorded by the Magistrate in presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with in the presence of his pleader. “…that if the person against whom an order for payment of maintenance is proposed to be made avoids service or wilfully neglects to attend the Court, the Magistrate is vested with jurisdiction to proceed exparte in the case. The procedure for recording of evidence is the same as is prescribed in the cases of summons trial,” Justice Dhar said.
Court said that while leading evidence the Magistrate has to take all such evidence as may be produced by the prosecution and the defence and the Magistrate has to record evidence of both the parties before determining the petition under Section 488 of CrPC. “In the event the respondent to the petition chooses not to contest the same, the Magistrate can proceed exparte against him but that does not absolve the Magistrate of his duty to record the evidence of the petitioner in exparte”, Justice Dhar said.
The counsel for the petitioner submitted that it was not open to the Magistrate to accept the evidence of respondent-wife by way of affidavits and rely upon the same and the procedure adopted by the Magistrate is unknown to law as such the impugned order passed by the Magistrate on the basis of inadmissible material and evidence is not sustainable in law.
“…Affidavits and affirmations to be used before a Court are required to be sworn and affirmed either before such Court or before any Magistrate or other Court. In the instant case, the affidavits which have been taken into consideration have neither been sworn before the Trial Magistrate nor the same have been sworn before any other Magistrate. Therefore, these affidavits could not have been taken into consideration by the Magistrate while deciding petition of the respondent. On this ground also, the impugned order is not sustainable in law”, Justice Dhar has held.
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