Karnataka High Court
Rouben Isreal Patter vs Mamta And Anr. on 30 November, 1981
Equivalent citations: AIR1983KANT10, ILR1982KAR819, AIR 1983 KARNATAKA 10, ILR (1982) 1 KANT 819, (1982) 2 DMC 275, (1982) 2 KANT LJ 137
ORDER
1. At the stage of admission, the respondents are notified. Accordingly, they have put in appearence through a counsel. Hence the civil revision petition is taken up for final hearing.
2. This Civil revision petition is preffered against the order dated 12-1-1981 passed by the learned Civil Judge, Bagalkot, I.A.V. in Matrimonial Case No.21 of 1979 directing the petitioner to appear, and to make available the two minor children, for cross-examination by respondent No. 1 for deciding the application I. A. No. 1filed by respondent under S. 43 of the Divorce Act, 1869 (hereinafter reffered to as "the Act" ) for the custody of two minor children. I.A.No. V is an application filed by respondent No. 1 under S. 51 of the Act.
3. Matrimonial Case No. 21 of 1979 is a proceeding initiated by respondent-1 for diveroce or for judicial separtion under Sections 10 and 22 of the Act, as the parties are christians. In that proceeding , an application (I.A. No. 1) is filed by the first respondent for the custody of the two minor children by name Jason (Johnson) and Vanajakshi. In the said proceedings, the petitioner has filed the affidavits sorn to by the aforeside two minor children.
4. It is contended by Sri Hosmath, learned counsel for the petitioner, that it is not open for the first respondent to seek production of the two minor children, for cross-examination and the petitioner also cannot be directed to make himself available for cross-examination by respondent No. 1.
5. As far as the direction relating to the production of the two minor children for cross-examination is concerned. Te cross-examination of the two minor children is sought for by the first respondent on the ground that the two affidavits sworn to by the two minor children have been filed by the petitioner in the proceeding. In order to verify as to who has administered oath or affirmation to the minors, the records of the case have been called for. From the records, it is found that the Sheristedar of the Civil Judge Court at Bagalkot had administered affirmation. The Sheristerdar who has administered affirmation is not a court of personhaving by law or consent of parties, authority to examine or record evidence of any witness including a child below 12 years of age. The two minor children in question are under 12 years of age.
6. The question for consideration is as to whether the authority though empowered to administer oath or afformation, but not having an authority either by law or by consent or parties to receive evidence and examine any witness including a child under 12 years of age, can be held to have and authority to administer oath or affirmation to a child under 12 years of age.
7. No oath or affirmation can be administered to a child under 12 years of age by an authority or person who is not a Court or who, by law or by consent of parties, has not been authorized to examine or to receive evidence of a witness including a child witness under 12 years of age. In this connection, sub-section (1) of section 4 of the Oaths Act, 1969 with the proviso is relevent and it is as follows:
"4(1) Oaths or affirmation sahall be made by the following persons , namely :-
(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;
(b) interperters of questions put to, and evidence given by, witnesses; and
(c) jurors:
Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth". From the aforesaid provision, it is clear that it is not necessaryto administer oath or affirmation to a child under 12 years of age by the court or person having authority to examine or to receive evidence of such a child, if it or he, is of the opinion that though the child understands the duty of speaking the truth but he does not understand the nature of an oath or affirmation, the evidence of such a witness can be recorded without administering oath or affirmation and absence of an oath or affirmation does not render inadmissible any evidence given by such witness nor does it affect the obligations of such a witness to state the truth . Before administering oath or affirmation to a child under the age of 12 years, the Court or persons having authority to examine or receive evidence of such a child witness nust be satisfied that the child understands the duty of speaking the truth and also under-stands the nature of the oath or affirmation. Therefore the Sheristerdar of the Civil Judge Court who has administered affimation to the children in question who are under 12 years of age, has acted without the authority of law in as much as he is not a person or authority empowered by law or by condence of any witness including a child witness. As such he is not entitled to admister oath or affirmation to a child under 12 years of age.\
8. Thus, the affidavits of the aforeside two minors in question or not admissible in evidence; therefore the same are required to be excluded from considerations. If those affidavits are to be excluded from considerations, the question of directing the petitioner to produce the two minors in question for cross-examination by respondent No. 1 does not arise. Of course, it is open for the first respondent who is having the custody of te two minorsin question to produce them before the Court in order to bring to the notice of the Court the inclination of the minors. In such and event, it is open for the Court to elicit from the minors in question as to whether they understand the duty of speaking the truth and the nature of an oath or affirmation. In case the Court is satisfied that they (minors) understand the duty of speaking the truth and the nature of an oath or affirmation, it is open for the Court to administer oath or affirmation to them and to record their evidence. Even otherwise if the Court is not satisfied that the minors though understand the duty of speaking the truth but do not understanding the nature of an oath or affirmation, the court can record their evidence without administering oath or affirmation.
9. The direction to the petitioner to make himself available for cross-examination by the first respondent does not call for inte rference. He has filed his affidavit in support of his objections opposing the application (I.A.No. 1) filed by the 1st respondent who, now wants to cross-examination the petitioner. Such a request of the first respondent to direct the petitioner to make available the first respondent for cross-examination is also in conformity with the proviso to section 51 of the Act. Section 51 of the Act, governs all the proceedings before the Court under the Act.
10. The contention of Sri. Hosamath , learned counsel for the petitioner, is that section 51 of the Act, is not applicable to a proceeding under section 43 of the Act. this contention cannot be accepted. Proceedings under section 43 of the Act, is also a proceeding under the act as such, the provision of section 51 of the Act are applicable to such a proceeding. Therefore, the learned Civil Judge is justified in directing the petitioner to make himself avaiable fr cross-examinations by the first respondent.
11. Accordingly, this civil revision petition is allowed in part. The direction to the petitioner to make himself available for cross-examination by the first respondent is affirmed and it is not distrubed. The furter direction issued by the learned Civil Judge that the petitioner should produce the two minor children by name Janson and vanajakshi, for cross-examination by the first respondent , is set aside. The learned Civil Judge is directed to exclude from the records of the case the affidavits of the aforeside two minors and to proceed with the matter in accordance with law.
12. Let a copy of this order be despatched to the lower Court along with the records of the case, expeditiously.
13. Petition allowed in part.