The main legal point established in the judgment is the admissibility of affidavits of minors and the authority to administer oath or affirmation to a child under 12 years of age.

( 1 ) AT the stage of admission, the respondents are notified. Accordingly, they have put in appearance through a counsel. Hence, the civil revision petition is taken up for final hearing.

( 2 ) THIS civil revision petition is preferred against the order dated 12. 1. 81 passed by the learned Civil judge, Bagalkot, in I. A. V. in M. C. No. 21 of 1979 directing the petitioner to appear and to make available the two minor childen, for cross-examination by respondent No. 1 for deciding the application I. A. No. I filed by respordent under S. 43 of the indian Divorce Act, 1869 (hereinafter referred to as 'the Art) for the cusrcdy of two minor children. I. A. No. V in an application filed by respondent no. 1 under Section 51 of act.

( 3 ) MC No. 21 of 1979 is a proceeding initiated by respondent-1 for divorce or for judicial separation under Ss. 10 and 22 of the Act, as the parties are Christians. In that proceeding, an application, (I. A. No. 1) is liled by the first respondent for the custody of the two minor children by name Jason (Johnson) and Vanajakashi. In the said proceeding, the petitioner has filed the affidavits sworn to by the aforesaid two minor children.

( 4 ) IT is contended by Sri Hosmath, learned Counsel for the petitioner, that it is not open for the first respondent to seek production of the two minor children, for cross-examination and the Petitioner also cannot be directed to make himself available for cross-examination by respondent No. 1.

( 5 ) AS far as the direction relating to the production of the two minor children for cross-examination is concerned, it cannot be sustained The cross-examination of the two minor children is sought for by the first respondent on the groundi that the two affidavits sworn to by the two minor children have been filed by the petitioner in the proceeding In order to verify as to who has administered oath or affirmation to the miaors, the records of the case have been called for. From the records, it is found that the Sheristedar of the Civil judge Court at Bagalkot had administered affirmation. The Sheristedar who has administered affirmation is not a Court or person having by law or consent of parties, authority to examine or record evidence of any witness including a child below 12 years of age. The two minor children in question are under 12 years of age.

( 6 ) THE question for consideration, is as to whether the authority though empowered to administer oath or affirmation, but not having an authority either by law or by consent of parties to receive evidence and examine any witness including a child under 12 years of age. can be held to have an authority to administer oath or affirmation to a child under 12 years of age.

( 7 ) NO oath or affirmation can be administered to a child under 12 years of age by an authority or person who is not a court or who, by law or by consent of parties, has not been authorised to examine or to receive evidence cf a witness including a child witness under 12 years of age. In this connection, sub-section (1) of s. 4 of the Oaths Act, 1969 with the proviso is relevant and it is as follows:"4 (1) Oaths or affirmation shall be made by the following persons, namely: - (a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; (b) interpreters of questions put to and evidence given by, witnesses; and (c) jurors: provided that where the witness 15 a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation sha