CHENNAI: Though there is no legal disqualification for a child to be a witness, courts sifting the evidence must consider the possibility of bias or the child being tutored, the Madras High Court has cautioned.

Passing orders on a civil revision petition filed by a woman, against whom her minor son filed an affidavit in support of his divorce-seeking father and deposed before a family court, Justice K. Chandru said courts should not allow a minor to be administered oath or affirmation.

The matter relates to a divorce plea preferred by C. Manivanna Bhupathy on the ground that his wife S. Amutha had deserted him and their two children — Aravind and Suganthi — in 2005. She contested the petition and claimed that her husband had extra-marital affairs and used to beat her.

Proof affidavit

At this stage, their 11-year-old son, who was living with his father for over a year, filed a proof affidavit stating that his father did not have bad habits and that it was difficult to stay with his mother. Protesting against the move to examine her son in court, Ms. Amutha said the proof affidavit should be rejected. However, citing Section 118 of the Evidence Act, the father said there was no impediment in examining the child in court and the court must ascertain the minor's mental capability before tendering evidence.

Concurring with the father's stand, the Principal Sub-Judge of Erode said he was fully satisfied that the child's evidence could be recorded and that he could be examined as witness.

Passing orders on the revision petition filed by the mother, Mr. Justice Chandru said child witnesses were not barred from giving evidence, but added: "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."

Courts must conduct a preliminary inquiry before allowing a child witness to be examined, and the evidence should be corroborated, the judge said, adding that a child-friendly atmosphere must be created in courts.

As for the present case, he said the trial court had misdirected itself by taking note of the affidavit of the minor and added that the child was likely to have been influenced by the father and that it would not have been an independent person deposing before the court.

Concluding that the child had been tutored, the judge said its affidavit should be removed and it should not be examined in the matrimonial case.

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