DHARMENDRA KUMAR Vs. RUBIKA KUMAR

JUDGEMENT

(1.) THE revision petition is against the order disallowing a prayer for summoning a minor child as a witness against the mother. The Court had dismissed the prayer finding that it will not be appropriate to summon the child. The counsel produced before the Court the judgment of the Supreme Court in Suranarayana Vs. State of Karnataka, 2001 (1) RCR (Crl.) 602 where in a trial under Section 302 the Court found that the statement of the child of 4 years was still relevant. In Rameshwar Vs. State of Rajasthan : 1952 AIR (SC) 54 the Court was examining the evidence of a child and found that to be reliable in a case where the child was brought to support the evidence of the rape victim. In Alagupandi alias Alagupandian Vs. State of Tamil Nadu : 2012 (10) SCC 451 the evidence of the child witness in a murder trial was still seemed to be reliable. There is a definite wrong understanding of entire case law brought before this Court by the learned counsel. Section 118 of the Evidence Act allows for the child to be brought as a witness and sets out the caution to be exercised in such a situation. All the decisions cited before this Court are decisions relating to relevance of the statement of a child as a witness and the reliability of such statement in the course of trial. The decisions have a bearing to the extent of reliance that could be placed and the nature of caution that has to be exercised. In this case the issue is not whether a child would be competent as a witness and whether the statement made by the child could be relied upon or not. We have not yet come to the situation where a child as a witness has been produced and evidence has been given. The manner of appreciation of evidence of a child witness is what has been brought out in all the decisions referred to above. None of the decisions has a bearing to the question raised in this case of whether a child could be cited as a witness at all. In a matrimonial proceedings it will be grossly improper for citing a child as a witness to state about the conduct of one or the other of the parents. It should be extreme rare situation where a child could be an objective in its own evidence and not to be partial to the person from whose custody the child is produced. It will cause immense embarrassment at the trial for the child to be compelled to depose against the alleged adulterous conduct of her mother. The father -petitioner was attempting to compel the production of his child as a witness to support a plea that the mother of the child was leading an adulterous living. To let in evidence through a minor daughter was grossly inappropriate and correctly rejected by the court below.

(2.) I will find no reason for intervention. The revision petition is dismissed.