K. A. SWAMI, J. ( 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. 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 shall not render inadmissible any evidence given by such witness not affect the obligation of the witness to state the truth. "from the aforesaid provision, it is clear that it is not necessary to administer oath or affirmation to a child under 12 years of age by the Court or person having authority to examine or to receive evidence of such a child, if it or he, is of the opinion that though the child understands the duty of speaking the truth but he does not understand the nature of an oath or affirmation, the evidence of such a witness can be recorded without administering oath or affirmation and absence of an oath or affirmation does not render inadmissible any evidence given by such a witness nor does it affect the obligation of such a witness to state the truth. Before administering oath or affirmation to a child under the age of 12 years, the Court or person having authority to examine or receive evidence of such a child witness must be satisfied that the child understands the duty of speaking the truth and also understands the natune of the oath or affirmation. Therefore the Sheristedar of the Civil Judge Court who has administered affirmation to the two children in question who are under 12 years of age, has acted without the authority of law in as much as he is not a person or authority empowered by law or by consent of parties to examine or to record evidence of any witness including a child witness. As such, he is not entitled to administer oath or affirmation to a childl under 12 years of age. ( 8 ) THUS, the affidavits of the aforesaid two minors in question are not admissible in evidence; therefore the same are required to be excluded from consideration. If those affidavits are to be excluded from consideration, the quest on of directing the petitioner to produce the two minors in question for cross-examination by respondent No. 1 does not arise. Of course, it is open for the first respondent who is having the custody of the two minors in question to produce, them before the Court in order to bring to the notice of the Court the inclination of the minors. In such an event, it is open for the Court to elicit from the minors in question as to whether they understand the duty of speaking the truth and the nature of an oath or affirmation. In such an event, it is open for the Court to elicit from the minors in question as to whether they understand the duty of speaking the truth and the nature of an oath or affirmation. In case the court is satisfied 'that they (minors) understand the duty of speaking the truth and the nature of an oath of affirmation, it is open for the Court to administer oath or affirmation to them and record their evidence. Even otherwise if the Court is not satisfied that the minors though they understand the nature of an oath or affirmation, the Court can record their evidence without administering oath or affirmation. ( 9 ) THE direction to the petitioner to make himself available for cross-examination by the first respondent does not call for interference. He has filed his affidavit in support of his objections opposing the application (I. A. No. 1) filed by the 1st respondent who, now wants to cross-examine the petitioner. Such a request cannot be refused. This request of the first respondent to direct the petitioner to make available the first respondent for cross-examination is also in conformity with the proviso to S. 51 of the Act. S. 51 of the Act, governs all the proceedings before the court under the Act. ( 10 ) THE contention of Sri. Hosamath, learned counsel for the petitioner, is that S. 51 of the Act, is not applicable to a proceeding under Sec. 43 of the act. This contention cannot be accepted. Proceeding under Sec. 43 of the act, is also a proceeding under the act, as such, the provisions of S. 51 of the Act are applicable to such a proceeding. Therefore, the learned Civil judge is justified in directing the petitioner to make himself available for cross-examination by the first respondent. ( 11 ) ACCORDINGLY, this civil revision petition is allowed in part. The direction to the petitioner to make himself available for cross-examination by the first respondent is affirmed and it is not disturbed. The further direction issued by the learned Civil Judge that the petitioner should produce the two minor children by name, Jason and Vanajakshi, for cross-examination by the first respondent, is set aside. The learned Civil Judge is directed to exclude from the records of the case the two affidavits of the afore-said two minors and to proceed with the matter in accordance with law. The learned Civil Judge is directed to exclude from the records of the case the two affidavits of the afore-said two minors and to proceed with the matter in accordance with law. ( 12 ) LET a copy of this order be despatched to the lower Court along with the records of the case, expeditiously. --- *** --- .