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Child can be witness in Parents legal battle ?


Writ Petition No. 10839 of 2017

Decided On: 06.10.2017

Rahul Ganpat Shedge
Sheetal Rahul Shedge

Hon’ble Judges/Coram: Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(1) MHLJ 426

1. Heard finally, at the stage of admission itself. This Petition is directed against the order dated 8th March 2017 passed by the Extra Joint Civil Judge, Senior Division, Pune, below Exhibit-76 in Marriage Petition No. 569 of 2012, thereby rejecting the Petitioner’s application seeking permission to record the evidence of his daughter as a ‘witness’ in the said case.

2. It is really an unfortunate situation that in the matrimonial dispute between the parents, the daughter is called upon to give evidence in the case by her own father against her mother. Learned counsel for the Petitioner submits that, Petitioner has filed this Petition for divorce against Respondent on the ground of cruelty and their daughter Shruti, who is at present 8 years of age, is a witness to the matrimonial life of Petitioner and Respondent and her evidence is essential to prove the various instances of cruelty inflicted by the Respondent on the Petitioner. It is submitted that the Respondent-wife has also attempted to commit suicide and the daughter being very much present at the relevant time, she is an important “piece” of evidence for Petitioner and, therefore, her evidence should not be shut at the threshold itself. According to learned counsel for the Petitioner, the Trial Court has, however, rejected the application of the Petitioner to summon her as a ‘witness’, only on the ground that daughter Shruti being in the custody of the Petitioner since last about three years, there is every possibility of she being tutored or influenced and, hence, her evidence cannot be of much use.

3. According to learned counsel for the Petitioner, only after her evidence is recorded, one can decide whether she was tutored or influenced and if it was found to be so, then, her evidence can be discarded, but it would not be proper at this stage not to allow her to be examined at all and thereby deprive the Petitioner from adducing the crucial piece of evidence to prove his case. It is urged that if her evidence is not allowed to be lead, then, how the Petitioner can prove the instances of cruelty? According to learned counsel for the Petitioner, his daughter is sufficiently matured as she is of the age of 7 years. Hence, the Trial Court should have, at-least, interviewed her to ascertain whether she has attained sufficient maturity and understanding to give evidence in the Court. According to him, her competency as a ‘witness’ should have been ascertained, but the Trial Court has not done that and only on the ground that she may be tutored, rejected the Petitioner’s application for recording of her evidence.

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4. I have perused the impugned order passed by the Trial Court. It is pertinent to note that the birth-date of the child Shruti, as given in the Petition for Divorce, is “11th March 2009”. Therefore, when this Application was filed before the Trial Court on 1st March 2017, she has hardly 7 to 8 years of age. The ‘Petition for Divorce’ is filed before the Trial Court in the year 2012 and, therefore, it follows that the alleged incidents of the conduct of the Respondent-mother had taken place prior to 2012; which indicates that, at that time, Shruti was hardly of the age of 2 to 3 years.

5. Needless to state, that calling such a child of 7 to 8 years of age to give evidence in respect of the incidents that might have occurred when she was of 2 to 3 years of age, is as good as inflicting a mental trauma on the child. As a matter of fact, calling upon the child to give evidence in favour of one parent and which may prove to be against another parent is as good as subjecting the child to unwanted trauma and predicament. The law is well settled that children should not be treated as a pawn on the chess board of the matrimonial battle of their parents. It may be a legal battle for the parents, but for the child, it is an emotional exercise. Even in respect of the custody and access matters of the children, it is recognized that children should not be allowed to feel that they have to take decision as between father and mother, with which of them they shall live. The pressures on the children are quite sufficient when the marriage has broken down and one of the parents has left them. At this stage, it is not at all expected from the Court to put additional burden on the child of being made to feel that child has to give evidence in favour of one parent against another parent. In the matrimonial proceedings, there are not only two parties – the husband and wife, but there is also a third party – the child and it is for the Court, being in the position of parens patriae, to ensure that the welfare and best interest of the child is not affected in any way. Calling upon the child Shruti, who is hardly 7 to 8 years of age, and asking her to give evidence of the incidents, which might have taken place when she was 2 to 3 years of age, is definitely going to cause long term effects on the psychological and emotional aspects of the child. The welfare of the child is of paramount importance and not the right of the parties as to how one parent should lead evidence against another parent to prove the case of cruelty. It is the best interest of the child, which the Court has to protect. Hence, apart from and in addition to competency of child to give evidence, this aspect of emotional trauma of the child needs to be considered.

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6. Moreover, in this case, the possibility of tutoring is always there, considering that since last more than three years, child is residing with the Petitioner. There is, therefore, the consequential possibility of the evidence of the child being discarded on the ground that she was tutored or influenced. Hence, there is no point in subjecting the child to this trauma, which is more important, having regard to the long term effects of giving of such evidence in the Court for the child against her own mother. In these types of cases, it is not the question of the either of the parent winning the case, but the child will surely be the “looser”, if it is allowed to be used as a pawn on their chess-board. Whatever years of innocence and childhood, which Shruti has lost on account of separation between the parents, cannot be retrieved, but, at-least, her trauma should not be enhanced or multiplied by subjecting her to come to the Court to give evidence against her own mother. It is high time that parents like Petitioner in this case understands it and should not on their own make such request. Therefore, looking at it from this angle also, in addition to the angle of the possibility of being tutored or being influenced, I do not find that the impugned order passed by the Trial Court suffers from any illegality, so as to warrant interference therein. The Court, when it has to exercise its discretion, it has to do so in the best interest of the child and having regard to the best interest of the child, the impugned order passed by the Trial Court does not call for any interference. Hence, the Writ Petition holds no merits and stands dismissed.

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