Rahul Ganpat Shedge vs Sheetal Rahul Shedge
2017 Latest Caselaw 7886 Bom

Dixit
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO.10839 OF 2017

        Rahul Ganpat Shedge,                                   ]
        Age 31 years, Occ. Business,                           ]
        R/at S. No.209, Sambhaji Nagar,                        ]
        Near Water Tank, Alandi Road,                          ]
        Bhosri, Pune.                                          ] .... Petitioner
                  Versus
        Sheetal Rahul Shedge,                                  ]
        Age 27 years, Occ. Housewife,                          ]
        R/at C/o. Subhash Laxman Khutwad,                      ]
        B-12, Ganesh Prsetige, Samarth Complex,                ]
        Dhanakawadi (E), Pune.                                 ] .... Respondent


        Mr. Mangal Bhandari, i/by Mr. Mangesh Deshmukh, for the Petitioner.
        None for the Respondent.


                                 CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                 DATE      : 6TH OCTOBER 2017.


        ORAL JUDGMENT :

        1.      Heard finally, at the stage of admission itself.

2. This Petition is directed against the order dated 8 th 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.

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3. 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 the 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.

4. 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

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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.

5. 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.

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6. 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

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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.

7. 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

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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.

8. 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.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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