ANOOJA BASHEER Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) The petitioner herein is the petitioner in MC No. 6/2015 before the Judicial First Class Magistrate Court, Kakkanad. It is a proceeding brought under Sec. 3(1) of Muslim Women (Protection of Rights on Divorce) Act, 1986 (the Act), claiming so many reliefs. When the claim came up for evidence, the petitioner filed an affidavit in lieu of examination in chief. This was objected by the other side. The learned Magistrate heard both sides and found that the claimant will have to examine herself as a witness, and that affidavit in lieu of examination in chief cannot be accepted. Accordingly, the affidavit filed by the petitioner was rejected, and she was directed to adduce evidence otherwise, by examining herself as a witness, by order dated 20/02/2016. The said order is under challenge, and it is sought to be set aside under Sec. 482 of Cr.P.C. The learned counsel for the petitioner relies on a decision of this Court in Saramma Shyju v/s. Shyju Varghees and Others : 2011 (3) KHC 235 : 2011 (2) KLD 126 : 2011 (3) KLT 534, that the proceedings under the Protection of Women from Domestic Violence Act, 2005, are civil in nature, and that an application to amend the petition can be entertained. The learned counsel also relies on some other decisions to the effect that the proceedings under Sec. 125 CrPC are also civil in nature, and so affidavit can be accepted in lieu of examination in chief. The learned counsel for the respondent on the other hand submitted that such a course is not possible when a specific procedure is prescribed by the law. The learned counsel relies on Rule 4 of the Rules framed by the Government of India under the Muslim Women (Protection of Rights on Divorce) Act, 1986. True it is, that the provisions of the CrPC are applicable in a proceeding brought under the Muslim Women (Protection of Rights on Divorce) Act, 1986, but the general provisions can be applied only when procedure otherwise is not prescribed by the special law or the Rules framed thereunder.

(2.) Rule 4 of the Rules provides that all evidence in the proceedings under the Act shall be taken in the presence of the respondent, or in the presence of his pleaded when his personal appearance is dispensed with, and such evidence shall be recorded in the manner provided or specified for summary trials under Cr.P.C. Recording evidence or giving evidence is not a ritualistic affair. It is not know why the petitioner is very particular that she shall not examine herself, or that she must be allowed to adduce evidence in the form of affidavit. She has sought various reliefs under the law. She will have to explain the factual aspects, and substantiate her right to claim various reliefs under the Act. The Code of Criminal Procedure provides the procedure for the trial of summary cases, where only the substance of the evidence is recorded by the Court, and nowhere in the Cr.P.C., filing affidavit in lieu of examination in chief during summary trial is permitted. Of course, it is true that in proceedings of civil nature before Criminal Courts, the procedure prescribed under CPC can be applied to an extent. But such a course is possible, and permissible, only when the special law dealing with a subject does not prescribe the procedure otherwise. Here is a case where the petitioner claims reliefs under a special law. The special law authorises framing of Rules by the Government. The Rules made by the Government accordingly, contains as specific provision that evidence in proceedings under the Act shall be recorded, in the manner specified for summary trials. This means that the claimant will have to examine herself, and she cannot be, in any circumstance, permitted to file an affidavit in lieu of examination in chief. I find that the petitioner's request was rightly rejected by the learned Magistrate. She will have to examine herself and adduce evidence, as provided under the Rules framed by the Act.