Section 126(2) CrPC

Source: Andhra Pradesh High Court 

Why in News? 

A Single Judge Bench of Justice Venkata Jyothirmai Pratapa, in X v. Y (2026), held that Family Courts cannot receive examination-in-chief evidence in the form of an affidavit in maintenance proceedings under Section 125 CrPC (Section 144 BNSS), since such a procedure is contrary to the mandatory requirement under Section 126(2) CrPC (Section 145(2) BNSS), which requires the evidence to be recorded in the presence of the person from whom maintenance is sought. 

What was the Background of X v. Y (2026) Case? 

• The Family Court had passed an order awarding monthly maintenance of Rs. 30,000 to the wife and Rs. 20,000 to the minor son in proceedings under Section 125 CrPC. 
• While arriving at this order, the Family Court had relied upon the wife's chief-examination affidavit instead of recording her oral evidence. 
• The husband filed a revision petition challenging the maintenance order, contending that the Family Court had illegally acted upon the affidavit evidence instead of following the procedure mandated under Section 126(2) CrPC. 
• He further contended that the Family Court had granted 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 awarded amount, and that his application seeking production of his income tax records had not been considered. 
• The respondents opposed the revision, arguing that proceedings under Section 125 CrPC are quasi-civil in nature, and that the procedure under Order XVIII Rule 4 CPC, which permits examination-in-chief through affidavits, could validly be adopted in such proceedings. 
• They contended that there was no legal infirmity in the procedure followed by the Family Court. 

What were the Court's Observations? 

• On the language of Section 126(2) CrPC: The Court held that Section 126(2) CrPC (Section 145(2) BNSS) stipulates that all evidence in maintenance proceedings shall be taken in the presence of the person against whom the order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader. 
• On the mandatory nature of the provision: The Court held that the legislature had consciously employed the expression "shall" in Section 126(2) CrPC, thereby making the requirement of recording evidence in the presence of the opposite party mandatory in nature. 
• On affidavit evidence: The Court held that Section 126(2) CrPC does not contemplate evidence being tendered by way of affidavits, and contains no enabling provision authorising a Family Court to substitute oral chief-examination with an evidence affidavit. 
• On the respondents' reliance on Order XVIII Rule 4 CPC: Rejecting the respondents' submission, the Court held that Section 126(2) CrPC expressly requires evidence to be recorded in the presence of the opposite party, and reading it harmoniously with Section 254 CrPC, held that the CPC procedure permitting affidavit evidence cannot be imported into maintenance proceedings absent an express statutory provision to that effect. 
• On the applicability of Chapter IX CrPC to Family Courts: The Court reaffirmed that even Family Courts remain bound to follow the procedure prescribed under Chapter IX of the CrPC while adjudicating maintenance claims 
• On the scope of cross-examination: The Court held that cross-examination in maintenance proceedings should remain confined to issues directly relevant to the maintenance claim, and should not be permitted to become a roving enquiry into unrelated matrimonial disputes. 
• On compliance with Rajnesh v. Neha (2021): 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. 
• On the legal consequence of non-compliance: Since the Family Court had determined maintenance without securing these mandatory disclosures, the Court held that the adjudication was legally unsustainable on this ground as well. 
• On relief granted: 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 Family Court for fresh consideration, directing it to record evidence afresh in accordance with Section 126(2) CrPC (Section 145(2) BNSS) and to dispose of the case preferably within two months. The Court further directed the husband to continue paying 50% of the maintenance awarded by the Family Court as interim maintenance until the matter is decided afresh. 

What is Section 145 of BNSS? 

• Sub-section (1) – Territorial jurisdiction: Proceedings under Section 144 BNSS may be initiated against a person in any district where he resides, where his wife resides, where he last resided with his wife (or with the mother of the illegitimate child, as the case may be), or where his father or mother resides. 
• Sub-section (2) – Manner of recording evidence: All evidence in such proceedings must be taken in the presence of the person against whom the maintenance order is proposed to be made, or, where his personal attendance is dispensed with, in the presence of his advocate, and must be recorded in the manner prescribed for summons-cases. 
• Proviso to sub-section (2) – Ex parte proceedings: Where the Magistrate is satisfied that such person is wilfully avoiding service or wilfully neglecting to attend court, the Magistrate may proceed to hear and determine the case ex parte. Any such ex parte order may be set aside for good cause shown, on an application filed within three months from the date of the order, subject to terms (including costs to the opposite party) as the Magistrate considers just and proper. 
• Sub-section (3) – Costs: The Court, while dealing with applications under Section 144 BNSS, has the power to pass such order as to costs as may be just. 
• Note: Section 145 BNSS corresponds to Section 126 of the erstwhile CrPC, 1973, and preserves the same procedural safeguards — mandatory presence of the respondent (or his advocate) during recording of evidence, and the ex parte mechanism for wilful non-compliance.