Sebanti Goswami vs Sagnik Goswami on 24 September, 2001

Calcutta High Court

Calcutta High Court
Sebanti Goswami vs Sagnik Goswami on 24 September, 2001
Equivalent citations: AIR 2002 Cal 48, (2002) 1 CALLT 70 HC, 2002 (1) CHN 392, I (2002) DMC 518
Author: P Samanta
Bench: P K Samanta
JUDGMENT
P.K. Samanta, J.
1. In the proceeding under Section 24 of the Hindu Marriage Act, 1955 (hereinafter called as the said Act) by
the respondent/ wife, the learned Court below at the instance of the husband/petitioner passed an order for
disposal of the same on the basis of the affidavits of the parties in view of Order 19 Rule 1 of Civil Procedure
Code. The respondent/wife has challenged the same in this revisional application.
2. It has therefore become necessary to decide as to whether the said proceeding under Section 24 of the said
Act must necessarily be decided on affidavits in view of Order 19 Rule 1 of the Code.
3. A reading of the provisions of Order 19 of the Code which are quoted hereunder, is therefore necessary.
1. Power to order any point to be proved by affidavit.--Any Court may at any time for sufficient reason order
that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at
the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for
cross examination, and that such witness can be produced, an order shall not be made authorizing the evidence
of such witness to be given by affidavit.
2. Power to order at endance of deponent for cross examination-(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either
party, order the attendance for cross examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or
the Court otherwise directs.
3. Matters to which affidavits shall be confined.-(1) Affidavits shall be confined to such facts as the deponent
is able of his own knowledge to prove except on Interlocutory applications, on which statements of his belief
may be admitted: provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter,
or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing
the same.
4. A plain reading of Rule 1 gives an impression that a witness to a proceeding shall be allowed to prove a fact
or facts by affidavit where the Court is of the opinion that such witness should be so allowed and makes an
order disclosing sufficient reasons therefore. But such affidavit evidence shall not be allowed if either of the
parties for good reasons desires to cross examine such witness who is available for production in Court. An
affidavit evidence of a fact or facts by a witness who may in circumstances be himself a party to the
proceeding shall not be allowed if any of the parties to the proceeding satisfies the Court that cross
examination of such witness by him is necessary for the purpose of extracting truth from the said witness and
for such purpose the said witness is available for production in Court and most Importantly where such cross
Indian Kanoon - http://indiankanoon.org/doc/639723/

Sebanti Goswami vs Sagnik Goswami on 24 September, 2001

examination has not been sought for only for the purpose of harassing the said witness or his adversary.
5. Rule 2 again puts a rider in such a situation. It abundantly makes clear that upon any application even if
affidavit evidence has been led, then also at the Instance of either of the parties, the Court may order for cross
examination of such witness who has filed the affidavit evidence. This provision obviously speaks of a
situation where cross examination of such witness has not been sought for unnecessarily but for the purpose of
extracting the truth of the affidavit sworn by such witness and the Court is of the opinion that such cross
examination is necessary for the Interest of Justice. Thus in all, the disposal of a proceeding on the basis of
affidavit evidence in view of the provisions of Order 19 Rules 1 & 2 is subject to the permission by the Court
on the parameters as above arising out of the facts and circumstances of each case.
6. The Order 19 of the Code in its terms does not make any distinction between a suit and a proceeding. The
proceeding arising out of an application for maintenance pendente lite under section 24 of the said Act in
pending matrimonial suit may be described as in the nature of a summary proceeding but in view of Order 19
as above it therefore cannot be said that all summary proceedings should be decided on affidavit evidence.
Only summary proceedings as expressly permitted by the statute to be decided on affidavit evidence, will be
decided as such and not otherwise. The provisions under Order 19 of the Code do neither speak of disposal of
a proceeding of any particular nature by affidavit evidence only nor stand as a bar for disposal of the same by
production of oral evidence.
7. Mr. Karuna Sankar Roy, learned senior advocate appearing on behalf of the husband/petitioner in support
of the impugned order for disposal of the said, petition under section 24 of the said Act filed by the wife
respondent on the basis of affidavit evidence only, placed his reliance on several decisions such as (Khandesh
Spinning and Weaving Mills Co. Ltd. v. Rashtriya Girni Kamgar Sangh, Jalgoan); (Shamsunder Rajkumar, a
Firm dealing in Oil Cakes etc. Calcutta v. Bharat Oil Mills Nagpur); . (Parekh Brothers v. Kartick Chandra
Saha & Ors.); (Dharamichand v. Sobha Devi); II 1984 DMC, 72, (V. Chandra v. S. Venugopal) : 1 1994
D.M.C., 456 (Jagatjit Singh v. Susshma); I 1994 DMC.. 643 (Stiremal Burad v. Shakuntala Devi Burad).
8. In Khandesh Spinning and Weaving Mill's case, the Supreme Court, in a situation where burden was on the
employer who claimed exclusion of the reserves from the rehabilitation amount on the ground that they were
used as working capital or reasonably earmarked for specific purpose of the Industry and where the accounts
of the a Company were reflected in a balance sheet showing profit and loss account, held that in view of the
importance of the Item of rehabilitation in the matter for arriving at the surplus for fixing the bonus, the Court
should insist upon a clear proof of the same and also give a real and adequate opportunity to the labour to
canvass the correctness of the particulars furnished by the employer. It further held that if the parties agree,
agreed figure can be accepted and if they agree to a decision on affidavits, then that course may be followed.
Otherwise the procedure prescribed in Order XIX of the Code may usefully be followed so that both the
parties may have full opportunity to establish their respective cases. The Supreme Court therefore on principle
did not approve of a disposal of a proceeding Involving fixation of an amount required for rehabilitation on
the basis of the affidavits of the parties without full opportunities to them to establish their respective cases. A
single Bench of Bombay High Court in the case of M/s. Shamsundar Rajkumar (supra) did not lay down any
contrary proposition, but merely stated that affidavits can be used in evidence if the Court for sufficient
reasons passes an order that a particular fact or facts may be proved by affidavit, which itself are the
provisions under Order XIX of the Code. The decision of the Division Bench of Calcutta High Court in the
case of M/s. Parekh Brothers is not a decision on the particular question involved in this case. There, an
application under section 17(1) of the West Bengal Tenancy Act was filed by the tenant seeking permission of
the Rent Controller to deposit rent in favour of all the three Plaintiffs. Said application was filed upon an
affidavit. The Court held that statements made in the said application could not become evidence in the suit
automatically because such affidavit was neither proved nor tendered in evidence. The single bench of
Rajasthan High Court in case of Vinay Kumar (supra) also did not take any different view. It also held that
where the Court finds that the matter cannot be disposed of properly on the basis of affidavits alone It may
proceed to record evidence and then decide the matter. The other single Bench Judgment of the Rajasthan
Indian Kanoon - http://indiankanoon.org/doc/639723/

Sebanti Goswami vs Sagnik Goswami on 24 September, 2001

High Court in Dharmchand's case (supra) is almost in the same line. It merely recorded that an application
under section 24 of the said Act should ordinarily be decided on affidavits of the parties.
9. The Kerala decision reported in 11(1984) DMC (supra) did not lay down a general proposition that petition
under Section 24 of the said Act should necessarily be decided upon affidavits. There the husband after
suffering a decree of dismissal of his petition for dissolution of marriage preferred an appeal. Before the
appellate Court the wife prayed for a sum of Rs. 5000/- towards necessary costs of the proceeding. At that
stage it was necessary to decide what amount was spent by the wife in the trial Court and what amount would
be spent for litigation at the appellate stage. By cross examination nothing more could have been extracted
from the wife than she might have stated in her petition and disclosed as materials in support thereof.
Accordingly, the Court held that at that stage of the proceeding the matter has to be decided on the basis of the
affidavits and the available materials. The Punjab and Haryana High Court in the case reported in I (1994)
P.M.C. 456 (supra) observed that the proceeding under section 24 of the said Act is summary in nature. Such
observations was made as it found that the Court which decided the said proceeding rightly chose not to
summon the witness on the side of the husband as he failed to produce any document and /or any affidavit of
any relevant person in support of his assertion that the wife was in service of a school. The decision of
Madhya Pradesh High Court as reported in 1(1994) D.M.C. 643 (supra) is to the effect that a proceeding
under section 24 of the said Act could also be decided by the Matrimonial Court on the affidavits of the
parties.
10. In summing up all the decisions as above it transpires that for purpose of disposal of a proceeding for
maintenance pendente lite there cannot be any strict procedural norm for disposal either only on the basis of
affidavits of the parties or always by recording their evidences. If the parties agree that a particular fact or
facts or the proceeding Itself shall be decided on the affidavits, then the Court would certainly adopt such
procedure. The Court may also adopt the procedure for disposal only on the basis of affidavits even If the
parties do not agree, If it is satisfied that such disposal would afford full and reasonable opportunities to the
parties to prove their respective cases. The Court will be required to record reasons therefore in such a
situation. Because the Court in making orders for alimony pendente lite is required under the section to take
Into consideration the whole of the circumstances of the case Including the conduct of the parties.
11. In a matter Involving fixation of an amount one party may claim on the basis of an Inflated amount of
income while the other party may similarly suppress his/her Income when the source of Income is flexible or
where the income or the employment cannot be proved by any affidavit evidence. There may be other
circumstances which may require proof by oral evidence, The Court will not be Justified in denying full and
reasonable opportunity to the parties to prove a particular aspect or aspects of the proceeding either by
examination of witness or witness if such aspect or aspects of the matter are relevant for the purpose of
disposal of the proceeding. Therefore, it will be for the Court to decide at to whether it will proceed for
disposal of a proceeding under Section 4 of the said Act only on the basis of affidavit evidence or by
recording evidence depending upon the facts and circumstances of each particular case.
12. In the case in hand it appears that the husband/opposite party is a service holder in a reputed company at
Calcutta. He has disclosed his earnings by production of salary slips, Income tax deduction certificate and
other material documents upon affidavits. The wife petitioner has not disputed the said documents. The wife
petitioner has claimed an alimony pendente lite for herself and for the maintenance and educational expenses
of their minor child including medical expenses and litigation costs under different heads as per the schedule
given in her petition. In support of such claim necessary documents can be furnished upon affidavit. The
claim of the wife/petitioner that the husband opposite party received different amounts by way of bonus and
other allowances from the employer can also be disclosed by production of documents upon requisition from
the employer company of the husband supported by an affidavit. There being no other relevant circumstances
for being considered for the purpose of disposal of the application of the wife under section 24 of the said Act,
it cannot be said at this stage that the learned Court acted Illegally and with material irregularity in It's
exercise of jurisdiction in deciding to dispose of the same on the basis of affidavits of the parties. The
Indian Kanoon - http://indiankanoon.org/doc/639723/

Sebanti Goswami vs Sagnik Goswami on 24 September, 2001

Revisional Application therefore must fall. Hence, the same is dismissed. Interim order made on the revisional
application shall stand vacated. There will be no order as to costs.

Indian Kanoon - http://indiankanoon.org/doc/639723/