Case Note & Summary
The petitioner, Rahul Ganpat Shedge, filed a divorce petition against his wife, Sheetal Rahul Shedge, on the ground of cruelty. During the trial, he sought permission to examine his 8-year-old daughter, Shruti, as a witness to prove instances of cruelty, including an alleged suicide attempt by the wife. The trial court rejected the application under Exhibit 76, reasoning that since the daughter was in the father's custody for about three years, she was likely tutored and her evidence would be of little use. The petitioner challenged this order in the Bombay High Court. The High Court observed that the trial court had pre-judged the child's evidence without examining her. The court noted that under Section 118 of the Indian Evidence Act, 1872, all persons are competent to testify unless prevented by lack of understanding. The competency of a child witness must be assessed by the court through preliminary questions to determine if the child can understand the duty to speak the truth and give rational answers. The possibility of tutoring goes to the weight of evidence, not admissibility. The High Court set aside the trial court's order and allowed the petitioner to examine his daughter, directing the trial court to first ascertain her competency. The petition was disposed of accordingly.
Headnote
A) Family Law - Child Witness - Competency to Testify - Section 118, Indian Evidence Act, 1872 - In a divorce petition on the ground of cruelty, the father sought to examine his 8-year-old daughter as a witness. The trial court rejected the application on the ground that the child, being in the father's custody, was likely tutored. The High Court held that the competency of a child witness is to be decided by the court after examining the child, not by pre-judging the possibility of tutoring. The court must assess the child's capacity to understand and give rational answers. The trial court's order was set aside, and the father was permitted to examine the daughter, with the trial court to decide her competency after preliminary questioning. (Paras 1-6)
Issue of Consideration
Whether a minor child can be examined as a witness in a matrimonial dispute between her parents, and whether the trial court can reject such an application solely on the ground that the child may be tutored.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 8th March 2017, and directed the trial court to permit the petitioner to examine his daughter as a witness. The trial court shall first ascertain her competency by putting preliminary questions to determine her ability to understand the duty to speak the truth and give rational answers.
Law Points
- Child witness
- Competency to testify
- Tutoring
- Matrimonial dispute
- Evidence Act
- Section 118
