JUDGMENT
A.K. Sikri, J.
1. In a war of wits between husband and wife, child is made a pawn. Petitioner No. 1 is the wife and respondent No. 4 is her husband. Relations between them have soured; may be beyond repairs. Respondent No. 4 is accusing wife of illicit relations with one Ajay Singh who is Sub-Inspector in Delhi Police. Respondent No. 4 has filed a petition for divorce against the petitioner No. 1, inter alia, on the grounds of cruelty and adultery and illicit relationship between petitioner No. 1 and SI Ajay Singh amounting to cruelty. Parties have two children; one is named Aakriti who is a daughter aged 13 years and is arrayed as petitioner No. 2 in this petition. Another child is son aged 9 years. Both the children are with father. Petitioner No. 1 has filed petition for custody of these children which is also pending adjudication.
2. However, we are not concerned, in this petition, with any matrimonial dispute between petitioner No. 1 and respondent No. 4. The acrimonious relationship between husband and wife has taken curious turn which has led to present proceedings. Respondent No. 4 made complaint to the employer of SI Ajay Singh alleging his illicit relationship with petitioner No. 1. It has resulted into initiation of departmental enquiry against SI Ajay Singh. This enquiry is in progress. It is governed by the Delhi Police (Punishment and Appeal) Rules, 1980. Prosecution and defense witnesses have already been examined. Rule 16-VIIIth of the Delhi Police (Punishment and Appeal) Rules, 1980 permits the Inquiry Officer to summon court witness. The Inquiry Officer, who is of the rank of the ACP, wants to clarify certain facts which have not been covered so far during the departmental enquiry proceedings and therefore he intends to examine three witnesses as court witnesses. For this he addressed letter dated 16th December, 2002 informing SI Ajay Singh about three court witnesses and directing him to attend the office at 2PM on 20th December, 2002 (which enquiry was adjourned to 6th February, 2003), to join the departmental enquiry so that the court witnesses may be examined in his presence. We are concerned with court witness No. 1, who is none else but Kumari Aakriti (petitioner No. 2) daughter of petitioner No. 1 and respondent No. 4. It is stated in the notice dated 16th December, 2002 `she will prove the association of SI Ajay Singh with her mother’. It is this action of the Inquiry Officer/respondent no.3 which is challenged by petitioner No. 1 as she does not want her daughter to be examined in the said enquiry. She has filed this writ petition for self as the petitioner No. 1 and on behalf of petitioner No. 2 as her mother and natural guardian.
3. When this petition came up for hearing on 15th February, 2003 while issuing notice in the petition for 31st March, 2003, in CM No. 1545/2003, which is an application for stay, following order was passed:
“Till the next date of hearing, petitioner No. 2 Kumar Aakriti shall not be forced to appear in the departmental enquiry as a witness which enquiry is initiated against Sub-Inspector Ajay Singh No. D-3628”
4. However, respondent No. 4 filed CM No. 2260/2003 which was listed on 21st February, 2003. I shall revert to the allegations made in this application at appropriate stage. What is required to be pointed out at this stage is that when this application came up for hearing on 21st February, 2003, order was passed that keeping in view the allegations made in this application, it would be appropriate to meet the child in the Chamber and case was fixed for this purpose on 24th February, 2003 at 3.30PM. On that date I had audience with Kumari Aakriti in the Chamber. Thereafter counsel Along with parties were also called and they made some preliminary submissions. Matter was listed for arguments on 25th February, 2003. On 25th February, 2003 both the parties agreed that instead of deciding CM No. 2260/2003 it would be appropriate to hear the arguments in the main writ petition itself. With the consent of parties, arguments were heard at length and matter kept for order today.
5. After the arguments when both the parties unfolded in detailed their respective submissions, it was felt desirable to have the meeting with Kumari Aakriti again and I met her in my Chamber at 4PM on 25th February, 2003.
6. The main ground for opposing the move to examine the petitioner No. 2 in the enquiry is that according to the petitioner No. 1 she has bona fide apprehensions that she may loose the petitioner No. 2 when she will be grilled in the enquiry proceedings as questions related to her character and illicit relationship will be asked in the enquiry which may permanently affect the mental psyche of the petitioner No. 2 forever against the petitioner No. 1.The impugned action in most likelihood will create hatred in the mind and heart of petitioner No. 2 towards petitioner No. 1. The petitioner No. 2 in turn may break up her ties with petitioner No. 1. She will be asked questions related to the character of her mother for which she is neither competent nor has any capacity to give rational answer for the same. It is stated that chances of her being tutored by respondent No. 4 to serve his own purpose and object so as to distance the petitioner No. 2 from her mother cannot be eliminated completely because the petitioner No. 2 is in actual possession of respondent No. 4. This action on the part of respondents is against morality and decency as they are seeking to prove the illicit relationship of the mother with third person on the deposition of her daughter. It is submitted that in view of provisions contained in Section 118 of the Evidence Act court can direct that child of tender age, when chances of tutoring by respondent No4, would not be compelled to depose in such an enquiry.
7. Elaborating the aforesaid premise, Mr. M.K. Singh, learned counsel for petitioner No. 1 submitted that Article 51(e) of the Constitution of India recognises dignity of women as one of the fundamental duties which is to be kept in mind. Petitioner No. 1 and respondent No. 4 had 16 years of successful marriage with two off-springs. In fact it is respondent No. 4 who started maltreating the petitioner No. 1 which was even reported in newspapers (page 19 of the paper book). It was also alleged that respondent No. 4 was instrumental in getting false case filed for which petitioner No. 1 referred to Kalandara under Section 182 IPC in the case of State Vs. Manjit Kaur. In that case Smt. Manjit Kaur had lodged FIR against SI Ajay Singh and his wife Smt. Veena and afterwards she had withdrawn the complaint stating that the complaint for the first time was made by her at the instance of respondent No. 4. He submitted that it was a mala fide move to have Kumari Aakriti as a court witness in departmental enquiry which the respondent No. 4 had managed with obvious motive to prejudice the interest of the petitioner No. 1 in pending cases between the petitioner No. 1 and the respondent No. 4. His submission was two-fold:
(1) In so far as petitioner No.1 is concerned, her image could not be tarnished by allowing Kumari Aakriti to depose in the enquiry as it amounted to defying the dignity of petitioner No. 1, a woman. He submitted that any findings which are recorded in the departmental enquiry against SI Ajay Singh would prejudice her interest in the court cases pending and intention of respondent No. 4 was to use these findings against her in these proceedings thereby jeoparding the chances of her success in those cases and particularly custody matters. In these circumstances, he made passionate plea to this court to ensure that dignity of petitioner No. 1 is maintained and referred to the following observations of the Supreme Court in the case of Bodhisattwa Gautam Vs. Subhra Chakraborty (Ms) :
“Para 8 :This court has, innumerable times, declared that “Right to life ” does not merely mean animal existence but means something more, namely, the right to live with human dignity (See: Francies Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746, State of Maharasthra v. Chandrabhan Tale, , Olga Tellis v. Bombay Municipal Corpn., and Delhi Transport Corpn. v.DTC Mazdoor Congress, . Right to Life would, therefore, include all those aspects of life which go to make a life meaningful, complete and worth living.
9. Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right lead an honourable and peaceful life. Women, in them, have many personalities combined. They are mother, daughter, sister and wife and not playthings for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.”
(2) From the point of view of minor child, he submitted that it was neither proper nor desirable to produce the minor child in an enquiry and depose about the alleged illicit relationship of SI Ajay Singh with petitioner No. 1. Such a grilling may have permanent effect on her mental psyche and tarnish the relation between mother and the daughter. It was further submitted that there are good chances of her being tutored by respondent No. 4 to serve his own purpose and she would be deposing as to what is told to her by respondent No. 4. He referred to the judgment of the Supreme Court in the case of Shri Satish Mehra Vs. Delhi Administration and another and particularly the following passage from the said judgment worth quoting:
“Para 23: Over and above that, what would be the consequence if this nebulous allegation is allowed to proceed to the trial stage. We foresee that Nikita, the child witness, now eight years and four months old, must necessarily be subjected to cross-questions involving sex and sex organs. The traumatic impact on the child when she would be confronted by volley of questions dealing with such a subject is a matter of concern to us. We cannot brush aside the submission of the appellant that such an ordeal would inflict devastating impairment on the development of child’s personality. Of course, if such a course is of any use to the cause of justice, we may have to bear with it as an inevitable course of action to be resorted to. But in this case, when the trial is going to be nothing but a farce, such a course of action should not be allowed to take place on account of the impending consequences befalling an innocent child.”
8. He further submitted that such a petition at the instance of mother was clearly maintainable and she was entitled to implead child also as petitioner No. 2 as she was natural guardian of child and referred to the judgment of the Supreme Court in the case of Godde Venateswara Rao Vs. Government of Andhra Pradesh and others in support. He also referred to various letters written by petitioner No. 2 to petitioner No. 1 which according to him, showed cordial and intimate relationship between the daughter and the mother. 9. Mr. Sanjay Jain, learned counsel for respondent No. 4, on the other hand, argued that present petition filed by the petitioner No. 1 was a malafide attempt to ensure that truth does not surface. He submitted that petitioner No. 1 had eloped with SI Ajay Singh in May, 2001 and had taken with her Kumari Aakriti. Petitioner No. 1 and SI Ajay Singh had allegedly stayed together when Kumari Aakriti was also with them and she is witness to the cohabitation of the petitioner No. 1 and SI Ajay Singh. Detailed account is given by the respondent No. 4 of his version in CM No. 2260/2003 and referring to the same it was submitted that since Kumari Aakriti was a witness to what had happened, there was nothing wrong in summoning her as court witness. His submission was that petitioner No. 2 was approximately 14 years of age (date of birth being 22nd March, 1989) and was competent enough to depose. According to him, she was most crucial witness in the enquiry. He submitted that the petition was filed by petitioner No. 1 at the behest of SI Ajay Singh. In equally passionate manner, he submitted that if the allegations of respondent No. 4 are correct and petitioner No. 1 has illicit relationship with SI Ajay Singh, it is the right of respondent No. 4 also to expose the same as dignity of a husband had already been tarnished. He further submitted that pursuant to the newspaper report regarding alleged maltreatment of petitioner No. 1 (Page 19 of the the paper book) , a Division Bench of this court had taken suo moto notice in Crl. Writ No. 812/2001 entitled "Court on its own Motion Vs. State" and called upon the police authorities to make thorough enquiry. After investigation status report was submitted by the police and as per that report, it was found that newspaper report was false and it was SI Ajay Singh who was the main brain behind the whole mischief and his conduct was dubious. Based on this report, it was submitted that Along with this status report, police had also taken statement of none else but mother/sister/brother of petitioner No. 1 who had given in writing to the SHO that it was petitioner No. 1 who was to blame for the matrimonial disturbances. He submitted that the Division Bench, after submission of aforesaid status report, had not only consigned the matter but custody of the children was given to respondent No. 4 and respondent No. 4 at that time, agreed to put Kumari Aakriti in a boarding school in Shimla. He further submitted that the Division Bench on 18th October, 2001 gave meeting rights to petitioner No. 1 who could meet Kumari Aakriti as well as son Aksh. However, petitioner No. 1 had not cared to meet the children thereafter for all this period and till recently. He further submitted that since Kumari Aakriti was in a boarding school at Shimla, there was no question or occasion to tutor her. Moreover in last few weeks petitioner No. 1 had been meeting the children more often and the allegation of tutoring was false on this ground also. He made fervent appeal to ensure that in the process, rights of child as ensured in the United Nations Convention on the Rights of the Child held in the year 1989 are not violated and particularly referred to the following rights: " Artciel 12(1): States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. Section 6(2): A transaction entered into in good faith by a third party and a person acting as legal representative of a child shall not be challengeable on the ground only that the child, or a person with parental responsibilities or parental rights in relation to the child, was not consulted or that due consideration was not given to his views before the transaction was entered into. Article 12(2): For this purpose, the child shall in particular by provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law." 10. His further submission was that matter should be examined by posing following questions: (i) Whether child of 14 years of age was competent to deposit. He submitted that it should be in affirmative in view of the judgment of the Supreme Court in the case of Prakash and another Vs. State of Madhya Prades reported in AIR 1993 SC 65? (ii) Whether child like Kumari Aakriti who was 14 years of age could be tutored to depose against her mother? (iii) Whether there was any occasion for respondent No. 4 to tutor the child? 11. Before dealing with the respective submissions, it would be proper to highlight the scope of controversy and nature of petition filed.
12. As pointed out above, Kumari Aakriti is named as court witness by the Inquiry Officer in the departmental enquiry against SI Ajay Singh which is in progress. Petitioner No. 1 has appeared in the said enquiry as defense witness. She does not want petitioner no.2 to appear for the reasons mentioned above. First question, therefore, would be as to whether giving of such a deposition by Kumari Aakriti in this enquiry would be prejudicial to this teenage witness. Foremost and rather only consideration has to be the interest and welfare of the child. The petitioner No. 1 has expressed various apprehensions. In order to ascertain the ground realities, I had interaction with Kumari Aakriti twice as already pointed out above. During first meeting, I asked Kumari Aakriti generally about her relations with parents and what she feels about both of them. I also tried to adjudge her maturity level by putting different kinds of questions. In passing, I asked her about SI Ajay Singh. In the second meeting, after the conclusion of the arguments, I was most specific about the alleged incident and put her certain questions in order to ascertain as to whether she was matured enough to make deposition of the nature she is called upon in the said enquiry. I have found Kumari Aakriti to be quite mature who not only knew the sensitivity of the matter but was capable of appreciating the same. She is also mature enough to understand the implications of appearing as a witness. In order to avoid my prejudice, I intentionally did not ask much about as to what she would depose in the enquiry, if permitted to do so. However, I may clarify that these observations are on the basis of brief interaction with Kumari Aakriti and ultimately it would be for the Inquiry Officer to assess the credibility of her deposition tested in the light of her statement and cross-examination. What is expressed here is that Kumari Aakriti appeared to be able enough to give the statement and face cross-examination. Therefore, all the apprehensions of the petitioner No. 1 insofar as effect on Kumari Aakriti, if she is produced as a witness are concerned, appear to be meaningless and would be of no avail.
13. It would be necessary to appreciate as to in what capacity the present writ petition is filed. The enquiry is against SI Ajay Singh and this is a departmental enquiry. The petitioner No. 1 is not party to these proceedings. Any findings recorded by the Inquiry Officer ultimately would not bind petitioner No. 1. The apprehension that it may affect pending litigation between petitioner No. 1 and respondent no.4 is, therefore, without substance. The departmental enquiry conducted by the domestic Tribunal which is not a `civil court’ or a `judicial or quasi judicial authority’ by no stretch of imagination can be binding on civil courts. It is trite law that even the findings of criminal courts are not binding on civil courts. Notwithstanding this, it can be clarified that any such findings recorded by the departmental enquiry would not be binding on the civil courts in the cases pending between petitioner No. 1 and respondent No. 4.
14. Argument of dignity of women, in the present case, would not hold much ground. No doubt, dignity of women has to be maintained. However observations of the Supreme Court in the case of Bodhisattwa Gautam (supra) relied upon by learned counsel for petitioners cannot be taken as stock defense in every case of any kind against women. What has to be ensured is that a woman in a particular litigation is not unnecessarily ridiculed or her dignity violated. But in this case when it is found that her own daughter is ready to depose and is matured enough to depose, such an argument cannot be pressed into service. Afterall, in every proceedings filed by a husband against his wife alleging adultery, the accusations would be such that may touch upon the dignity of women. We have to also keep in mind that truth ultimately prevails. In order to find out the controversy some enquiry has to be gone into. Of course, in such matters, courts have to act with very caution and ensure that woman against whom allegations are made, is not unnecessarily maligned. However, if it is found that the husband is trying to misuse and abuse the process of law, appropriate order can be passed dismissing such a case at the outset and even if the case goes on trial and ultimately accusation is found to be false, appropriate action can be taken against the husband. That is not the situation here. It may be mentioned that Bodhisattwa Gautam (supra) was a case of rape of a woman and observations quoted above were made in that context.
15. While finding no merit in the present petition, still to assuage the apprehensions of petitioner No. 1, safeguards can be provided by issuing necessary directions when Kumari Aakriti would be examined in the departmental enquiry as court witness and following directions are given to meet this purpose:
(1) Kumari Aakriti when appears in the departmental enquiry against SI Ajay Singh as court witness, shall be accompanied by Ms. Tamali Wad, Advocate of this court who is appointed as local commissioner. Her fee is fixed at the rate of Rs.5,000/- per hearing before the Inquiry Officer. She would ensure that in the inquiry, the testimony of Kumari Aakriti is uninfluenced, voluntary and she is not unnecessarily harassed or put inconvenient questions either by the court or prosecution or defense. Ms. Tamali Wad, Advocate/local commissioner shall be allowed by the Inquiry Officer to sit in the inquiry and observe the proceedings to ensure the same.
(2) It is clarified that in testimony of Kumari Aakriti in the inquiry and/or any findings of the Inquiry Officer in the said inquiry, shall not be binding on the civil courts in divorce and custody proceedings. Civil courts shall record there own evidence and findings in the cases pending before them on the basis of material produced before them without being influenced by the proceedings of the departmental enquiry or the inquiry report.
16. Since Kumari Aakriti is in Delhi as her school is closed for winter vacation and is reopening on 1st March, 2003, it would be appropriate for the Inquiry Officer to fix a date before she leaves for Shimla so that her studies are not hampered.
17. This writ petition stands disposed of in the aforesaid terms.