A single judge of AP High Court held as follows,
In paras 8 and 9,
8. 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.
9. The statutory mandate becomes more evident when Section 126(2) (Section 145 (2) of BNSS) is read harmoniously with Section 254 Cr.P.C(Section 277 of BNSS)., which prescribes the procedure for recording evidence in summons cases. Chapter IX of the Code envisages that evidence is to be adduced before the Court and recorded in the presence of the opposite party. Therefore, the procedure contemplated under Order XVIII Rule 4 CPC, which permits examination-in-chief by way of affidavit, cannot be imported into proceedings under Section 125 Cr.P.C(Section 144 of BNSS) in the absence of an express statutory provision.
Citations:
Other Sources:
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