Rouben Isreal Patter vs Mamta And Anr. on 30 November, 1981

    Rouben Isreal Patter vs Mamta And Anr. on 30/11/1981

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.