IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 02..02..2007 Coram The Hon'ble Mr. Justice K.CHANDRU C.R.P.(PD) No. 1076 of 2006 S.Amutha .. Petitioner / Petitioner / Respondent. vs. C.Manivanna Bhupathy .. Respondent / Respondent / Petitioner. Petition filed under Article 227 of the Constitution of India for the reasons as stated therein. For Petitioner : Mr.K.Thilageswaran For Respondent : Mr.I.C.Vasudevan ORDER This Civil Revision Petition has been filed against the order of dismissal dated 13.4.2006 passed in I.A.No.98 of 2006 in H.M.O.P.No.76 of 2005 on the file of the Principal Sub-Judge, Erode. 2. This is a case of an husband and wife fighting over the matrimonial cause relating to the dissolution of their marriage before the trial Court and have put their child on a burner unmindful of its future consequences. This is not a case where the King Solomon's rule can be applied and ask the child to be cut by a sword to find out the real mother. But in this case, the real father and the mother are fighting and the child is called as a witness to speak about the truth or otherwise of the averments made in the pleadings filed by them before the trial Court. The father has brought the minor son and had put him on the witness stand to speak against his mother and the mother has objected to the same. The trial Court has brushed aside the objection of the mother (the revision petitioner herein) and held that the child witness was competent to speak about the dispute between the wife (petitioner) and the husband (respondent) and taken on record the sworn affidavit filed by the minor. The question raised in this Civil Revision Petition is whether such an action is permissible in law. 3. Now reverting to certain basic facts of the case: The revision petitioner is the wife and she has filed the present Civil Revision Petition against the order dated 13.4.2006 passed by the https://hcservices.ecourts.gov.in/hcservices/ Sub-Court, Erode, in I.A. No.98 of 2006 in H.M.O.P.No.76 of 2005. The respondent herein is the husband, who had filed a petition under Section 13(1) read with Section 13(1)(a) of the Hindu Marriage Act seeking for a decree of divorce from the revision petitioner / wife. The said petition was taken on file as H.M.O.P.No.76 of 2005. The main ground on which the Original Petition was filed was that the revision petitioner / wife had deserted the respondent / husband and gone to her parents' house on 19.4.2005 without any valid reason. During the subsistence of the marriage, which took place on 15.11.1992, the petitioner and the respondent had two children out of which one was a male child, viz., Aravind, studying fifth standard and the other was a female child, viz., Suganthi, studying third standard on the date of the filing of the petition. 4. The Petitioner / wife filed a detailed counter statement dated 21.9.2005 and refuted the contentions of the petitioner. She also alleged that the respondent was of immoral character and he had an affair with a colleague in his office and on her representation, that lady was transferred to a different place. She also stated that at times, the respondent used to beat her up and that he is preventing the children from talking to her. She wanted the dismissal of the petition and also stated that she will take appropriate custody of the children and decided to file an interim petition for maintenance pending litigation. 5. It is at this stage, when the petitioner gave evidence as P.W.1, he also filed a proof affidavit in January 2006 signed by his son Aravind, who was only 11 years old at that time, and on that affidavit was to be cross-examined, as a witness P.W.2 on the side of the respondent / husband. In that affidavit, the said minor Aravind has stated that he was aware of the petitions pending before the trial Court and that he and his sister were staying with the respondent father and they are maintained by him and their entire education and other expenses are met by the respondent father. He also stated that his mother always used to quarrel in the house and many times, she used to leave for his grandmother's house and abuse the respondent, that she had made attempts to split them from their father and on his own accord, he is staying with his father and it is difficult to stay with his mother. Further, he also volunteered to state that his younger sister is not taken care of by his mother and his father does not have any bad habits and they were maintained by him properly. When the proof affidavit was filed, the petitioner took out an application in I.A. No.98 of 2006 stating that the Principal Sub-Court should reject the proof affidavit of P.W.2 (minor Aravind) and also disallow the respondent from examining her son in the trial. The respondent filed a counter stating that as per Section 118 of the Evidence Act, there is no impediment for examining the child in the Court of law and it is the Court, which will have to find out the mental capability of the minor witnesses giving evidence before them. https://hcservices.ecourts.gov.in/hcservices/ 6. The trial Court, after hearing both the parties, passed an order stating that after examining Section 118 of the Evidence Act and also after going through the affidavit filed by P.W.2 minor Aravind where he himself signed and who was also produced before the trial Court and found the mental capability of the child and dismissed the petition after holding that the learned Judge was fully satisfied that the child's evidence can be recorded and he can be examined as witness, since there is no bar for examining a child witness. The learned Judge further held that the child was not under any compulsion to give testimony and accordingly, rejected the objection raised by the petitioner / wife. It is against this order, the present Civil Revision Petition has been filed. 7. I have heard the arguments of Mr.K.Thilageswaran, learned counsel appearing for the revision petitioner / wife and Mr.I.C.Vasudevan, learned counsel appearing for the respondent / husband and have perused the records. 8. Since the present petition raises a very important question, it is necessary to refer to several decisions, which will have bearing on the said issue. After the amendment of the Code of Civil Procedure, it becomes essential for the parties to file a proof affidavit under Order 18 Rules 4(1) and(2) of the Code of Civil Procedure, which reads as follows: O.18 R.4 "Recording of evidence.-- (1) In every case, the examination – in - chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. (2) The evidence (Cross-examination and re- examination) of the witness in attendance, whose evidence (examination – in – chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it. Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit." 9. When this matter was challenged before the Supreme Court in its decision reported in (2003) 1 SCC 49 [Salem Advocates' Bar Association, T.N. vs. Union of India], the Court in paragraph 17 of the judgment held as follows: "Para 17 : ...... Reading the provisions of Order 16 and Rule 18 together, it appears to us that Order 18 Rule 4 (1) will necessarily apply to a case contemplated by https://hcservices.ecourts.gov.in/hcservices/ Order 16 Rule 1-A ie., where any party to a suit, without applying for summoning under Rule 1 brings any witness to give evidence or produce any document. In such a case, examination-in-chief is not to be recorded in Court but shall be in the form of an affidavit." [Emphasis added] 10. Subsequently, when the very same case came up for consideration, the Supreme Court held that the cross-examination of a witness, whose proof affidavit filed, should be done only in the Court and not before a Commissioner and no inadmissible document can be read into evidence merely on account such document given Exhibit number in the affidavit. This decision is reported in (2005) 6 SCC 344 [Salem Advocates' Bar Association, T.N. vs. Union of India] and paragraph 5 of the judgment is usefully extracted below: "Para 5 : The amendment provides that in every case, the examination-in-chief of a witness shall be on affidavit. The Court has already been vested with the power to permit affidavits to be filed as evidence as provided in Order 19 Rules 1 and 2 of the Code. It has to be kept in view that the right of cross-examination and re- examination in open Court has not been disturbed by Order 18 Rule 4 inserted by amendment. It is true that after the amendment cross-examination can be before a Commissioner but we feel that no exception can be taken in regard to the power of the legislature to amend the Code and provide for the examination-in-Chief to be on affidavit or cross examination before a Commissioner. The scope of Order 18 Rule 4 has been examined and its validity upheld in Salem Advocate Bar Assn., case. There is also no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of the examination- in- chief to be recorded in Court." [Emphasis added] 11. It, therefore, follows that after the introduction of the amendment to Order 18 Rule 4 CPC, a witness will have to give an affidavit and the said affidavit is more or less referable to the Oaths Act and the person, who is signing the affidavit, has to swear to the affidavit and when the question of competency of a person swearing to an affidavit came before the Supreme Court, the Court in its decision reported in AIR 1952 SC 54 [Rameshwar Kalyan Singh vs. The State of Rajasthan], observed in paragraph 7 of the judgment as follows: "Para 7: The proviso quoted above must be read along with S. 118, Evidence Act and S. 13, Oaths Act. In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not https://hcservices.ecourts.gov.in/hcservices/ his competency. The question of competency is dealt with in S. 118. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the Court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that S. 118 must prevail." [Emphasis added] 12. A similar question was further considered by the Supreme Court in its decision reported in 1984 (Supp.) SCC 571 [M.Veerabhadra Rao vs. Tek Chand] and in paragraph 17 of the judgment, the Court observed as follows: "Para 17: The expression 'affidavit' has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before an authorised Magistrate or officer. Affidavit has been defined in sub-cl. (3) of S. 3 of the General Clauses Act, 1897 to include 'affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing.' The essential ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it, he swears or affirms the truth of the statements made in the presence of a person who in law is authorised either to administer oath or to accept the affirmation. The responsibility for making precise and accurate statements in affidavit were emphasised by this Court in Krishan Chander Nayar v. Chairman, Central Tractor Organisation. The part or the role assigned to the person entitled to administer oath is no less sancrosanct. [Emphasis added] 13. As per Section 4 of the Oaths Act, oaths or affirmations have to be made by the persons, who are all witness to be lawfully examined before any Court. Section 5 states that instead of making oath, an affirmation can be made by a witness. As has been held, signing of an affidavit requires an affirmation. The competency of a person to sign an affirmative statement especially when the person is a child, the same cannot be permitted since the child cannot be said to be a competent person to sign an affirmation. In fact, Section 3(3) of the General Clause Act defines an affidavit, which reads as follows: "affidavit" shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing" https://hcservices.ecourts.gov.in/hcservices/ 14. However, Section 118 of the Evidence Act prescribes the qualification of a person, who can testify before the Court and it reads as under: "118. Who may testify.-- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind." 15. The Courts have made some reconciliation between taking oath before a Court and facing the consequences of breaching the same on the one hand and on the other hand, the competency of giving testimony before the Court. In the interest of justice, Courts have held that a child witness is competent to give evidence though it may not be permissible to administer oath before giving such evidence. It is, in this context, there are several rulings of the Supreme Court as to competency of a child witness and necessary precautions to be taken in sifting evidence given by such a child witness. A reference to these decisions is relevant before we embark upon the admissibility or desirability of a child witness in a proceedings before the Court dealing with a matrimonial cause. 16. In the decision reported in (1998) 7 SCC 177 [Panchhi and others vs. State of U.P.] in paragraphs 11 and 12, the Supreme Court observed as follows: "Para 11 : ...... But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. Para 12: Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law (vide, Prakash v. State of Madhya Pradesh, (1992) 4 SCC 225 : (AIR 1993 SC 65); Baby Kandayanathil v. State of Kerala, 1993 Suppl (3) SCC 667 : (1993 AIR SCW 2192); Raja Ram Yadav v. State of Bihar, AIR 1996 SC 1613 : (1996 AIR SCW 1882) and Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341." [Emphasis added] https://hcservices.ecourts.gov.in/hcservices/ 17. Further, in the decision reported in 1995 (Supp) 4 SCC 416 [Arbind Singh vs. State of Bihar], in paragraph 3 of the judgment, the Supreme Court observed as follows: "Para 3 : ...... It is well-settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring......." 18. It was also seen that by the Supreme Court reported in (1997) 5 SCC 341 [Dattu Ramrao Sakhare and others vs. State of Maharashtra], it was held as follows and the relevant passage found in paragraph 5 is reproduced. "Para 5 : ...... In other words even in the absence of oath the evidence of a child witness can be considered under S. 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored........"[Emphasis added] 19. Further, in the decision reported in (2004) 1 SCC 64 [Ratansinh Dalsukhbhai Nayak vs. State of Gujarat], the Supreme Court held in paragraph 7 as follows: "Para 7 : ...... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." [Emphasis added] https://hcservices.ecourts.gov.in/hcservices/ 20. In (2003) 3 SCC 21 [Bhagwan Singh and others vs. State of M.P.], the Supreme Court also observed as follows: "Para 19: The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony." [Emphasis added] 21. A perusal of the decisions of the Supreme Court cited above clearly shows that a child is incapable of being administered oath or affirmation as he is only a minor. Yet, in the light of Section 118 of the Evidence Act, child witnesses are not debarred from giving evidence. At the same time, the Courts have put certain restrictions in accepting the evidence of child witnesses especially on the question of corroboration and he may be biased being under the control of the interested persons and the Court must avoid any traces of tutoring or likelihood of tutoring. 22. In fact, in various decisions dealing with the child custody matters, the Courts have taken note of preference of a child being ascertained by Courts. Section 17(3) of the Guardians and Wards Act states that if a minor is old enough to form an intelligent preference, the Court may consider that preference. The Hindu Minority and Guardianship Act, 1956 makes it statutorily mandatory that in declaration of a person as a guardian of a Hindu minor by the Court, the welfare of the minor shall be the paramount consideration. In this context, the Courts have also taken into account the opinion of the minor before passing an order. 23. In this context, it is necessary to refer to the decision of the Supreme Court reported in JT 2006 (10) SC 516 [Lekha vs. P.Anil Kumar] where the Supreme Court while dealing with the custody of the child, held in paragraphs 21 to 23 as follows: "Para 21: However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the child's welfare and interest. The general view that the Courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu Law, the father is the natural guardian of a minor after the age of six years, the Court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the child's needs and to arrange for his upbringing. It also has to be seen whether in view of https://hcservices.ecourts.gov.in/hcservices/ his other commitments, the father is in any position to give personal attention to the child's over-all development. Para 22: As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mother's second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contented in his present situation and we do not think it would be right to unsettle the same. Para 23: The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding grant of custody of minor children. ..." [Emphasis added] Therefore, it may be necessary in certain cases to ascertain the views of the minor before decision is rendered in the matter of custody. 24. The Courts have also struck a note of caution in directly examining a child witness before conducting preliminary examination as can be seen from the following rulings. 25. In the decision reported 1996 (1) CRI.L.J. 803 [Jibhau Vishnu Wagh vs. State of Maharashtra], it was held in paragraph 15 of the judgment as follows: "Para 15: ....... He firstly urged that the prosecutrix was a young girl aged about 8 years and the learned trial Judge should have conducted her preliminary examination in order to ascertain in the level of understanding and only thereafter should have proceeded to record her statement. There can be no dispute that it would have been certainly better for the learned Judge to have first conducted a preliminary examination of the prosecutrix by putting some questions to her and on the basis of answers given by her in reply to them satisfied himself whether she was possessed of sufficient understanding. However, the failure to hold a preliminary examination of a child witness does not introduce a fatal infirmity in the evidence..............." [Emphasis added] 26. In paragraph 6 of the decision reported in 1999 (3) CRI.L.J.2712 [Dhani alias Dhaneswar Naik vs. The State], it has been held as under: "Para 6 : P.W.4 undoubtedly is a child of ten years at the time his examination was made. So far as acceptability of evidence of P.W.4 is concerned, undisputedly he was a minor boy at the time of alleged https://hcservices.ecourts.gov.in/hcservices/ commission of offence and while deposing in Court. Under Section 118 of the Indian Evidence Act, 1872 (in short, ‘Evidence Act’) all persons are competent to testify unless the Court considers that because of tender