A single judge of Karnataka High Court at Kalaburgi bench held as follows,

From Para 5,

5. I have perused the original records obtained from the Family Court. The order sheet dated 7.7.2005 reveals that on the said date of hearing 1st petitioner filed her affidavit in lieu other examination-in-chief and the Family Court received the same. It further reveals that the respondent was not present and his counsel was also absent on that day and that the distress warrant issued against the respondent for enforcing the interim order of maintenance was not received. Thus it is clear that the affidavit of the 1st petitioner as her examination-in-chief was received in the absence of the respondent and his counsel.

From Paras 8-10,

8. Further, Section 126(2) of Cr. P.C provides that all evidence to proceedings under Chapter IX of Cr. P.C shall be taken in the presence of the person against whom an order of payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases. Further proviso to sub-Section (2) of Section 126 Cr. P.C provides that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte.

9. As observed by me supra, on 7.7.2005 on which date the 1st petitioner filed her affidavit in lieu of her examination-in-chief, the respondent and his Counsel were not present. The order sheet does not reveal further that on that date of hearing, personal attendance of the respondent was dispensed with or that the Family Court was satisfied that the respondent, against whom an order of payment of maintenance was proposed to be made, was willfully avoiding service or willfully neglecting to attend the Court. Therefore, recording of the evidence for the petitioners by receiving the affidavit of the 1st petitioner therein in lieu of her examination-in-chief, in the absence of the respondent and his Counsel, is in violative of the mandatory provisions of Section 126(2) of Cr. PC and proviso to it.

10. Besides the above, the very filing of the affidavit in lieu of examination-in-chief of either the petitioner or the respondent, in a maintenance proceeding is also violative of provisions of Section 126(2) of Cr. PC inasmuch as, the said provision provides that the evidence shall be recorded in the manner prescribed for summons-cases. The receiving of affidavit in lieu of examination-in-chief of a witness is not prescribed under any of the provisions of Cr. P.C providing for recording of the evidence in summons-cases.

Citations:

Other Sources:

Index of Maintenance Cases here.