Family Courts Can't Accept Examination-In-Chief Evidence Via Affidavit In Maintenance Case, Violates S.126(2) CrPC Mandate: AP High Court

The Andhra Pradesh High Court held that Family Courts cannot examination-in-chief evidence in the form of affidavit in maintenance proceedings under Section 125 CrPC (Section 144 BNSS), as such procedure is contrary to mandatory requirement under S.126(2) CrPC which requires presence of person from whom maintenance is sought. [2026LiveLaw (AP) 141]

In doing so, the Court set aside a Family Court order awarding monthly maintenance of Rs. 30,000 to the wife and Rs. 20,000 to the minor son and remanded the matter for fresh adjudication after recording evidence in accordance with law.

A Single Judge Bench of Justice Venkata Jyothirmai Pratapa observed:

"The first limb of the challenge relates to the manner in which evidence was received by the Trial Court. The answer to this issue must necessarily be gathered from the language employed in Section 126(2) Cr.P.C(Section 145 (2) of BNSS). The provision stipulates that "all evidence in such proceedings shall be taken in the 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."

The legislature has consciously employed the expression "shall", thereby making the requirement mandatory in nature. The provision does not contemplate evidence being tendered by way of affidavits nor does it contain any enabling provision authorising the Court to substitute oral chief-examination with evidence affidavit.”

The revision petition was filed by the husband challenging the Family Court's order granting maintenance to his wife and minor son. He contended that the Family Court had illegally relied upon the wife's chief-examination affidavit instead of recording oral evidence as mandated under Section 126(2) CrPC.

He also argued that the Court had awarded maintenance without considering that the wife was employed as a software professional, that he had resigned from his job and had no means to pay the amount awarded, and that his application seeking production of his income tax records had not been considered.

Opposing the revision, the respondents argued that proceedings under Section 125 CrPC are quasi-civil in nature and that the procedure under Order XVIII Rule 4 of the Code of Civil Procedure, permitting examination-in-chief through affidavits, could validly be adopted. They contended that there was no legal infirmity in the Family Court's procedure.

Rejecting the respondents' submissions, the High Court held that Section 126(2) CrPC expressly requires evidence to be recorded in the presence of the opposite party and does not permit chief-examination by affidavit.

Reading Section 126(2) harmoniously with Section 254 CrPC, the Court held that the CPC procedure permitting affidavit evidence cannot be imported into maintenance proceedings in the absence of an express statutory provision. It further reaffirmed that even Family Courts are bound to follow the procedure prescribed under Chapter IX of the CrPC while deciding maintenance claims. 

The Court held that cross-examination in maintenance proceedings should remain confined to issues directly relevant to the maintenance claim and should not become a roving enquiry into unrelated matrimonial disputes.

On the second issue, the Court found that the Family Court had failed to ensure compliance with the Supreme Court's directions in Rajnesh v. Neha (2021), which require both parties to file comprehensive affidavits disclosing their income, assets, liabilities and expenditure to enable an objective assessment of maintenance. Since the Family Court had determined maintenance without securing these mandatory disclosures, the adjudication was held to be legally unsustainable.

Holding that both defects went to the root of the adjudicatory process, the Court set aside the maintenance order and remanded the matter to the trial Court for fresh consideration. It directed the trial Court to record evidence afresh in accordance with Section 126(2) CrPC (Section 145(2) BNSS) and dispose of the case preferably within two months. 

The Court further directed the husband to continue paying 50% of the maintenance awarded by the trial Court as interim maintenance until the matter is decided afresh.

Case Title: X v. Y

Case No.: Criminal Revision Case No. 946 of 2024

Counsel for the Petitioner: Sri Thandava Yogesh

Counsel for the Respondents: Sri M.S. Banu Prasad Rao

Click Here To Read/Download Order

Citation: 2026LiveLaw (AP) 141