R. RAMANUJAM, J. ( 1 ) CAN a Court refuse to record the evidence of a witness who is not willing to make an oath in the name of the God, but is ready and willing to make an affirmation?this is the question that arises for consideration in this Civil Revision Petition. ( 2 ) THE relevant facts, which are simple, are the following :-The petitioner herein is the plaintiff in O. S. No. 16 of 1989 on the file of the Senior Civil Judge s Court Kavali, which was instituted for declaration of her title to the plaint schedule property and permanent injunction restraining the respondent defendants from interfering with her peaceful possession and enjoyment of the same. ( 3 ) IN the said suit, the petitioner-plaintiff got herself examined as P. W. 1 and she wanted to examine the scribe of Ex. A. 1-Will, Sri Venkata Subbaiah, as P. W. 2. When the said Sri Venkata Subbaiah refused to make an oath in the name of the God, the learned Senior Civil Judge did not permit him to give evidence and passed the impugned order dated 11-6-1998, which can be usefully extracted hereunder :-"p. W. 1 recalled and cross-examined. Advocate for plaintiff requested to examine the scribe of Ex. A. 1 by name Venkata Subbaiah as a witness on behalf of plaintiff. The said Venkata Subbaiah on entering into witness box refused to take oath in the name of God and he expressed his readiness to give evidence according to his conscious. As the witness refused to take oath, he is not permitted to give evidence and the Court refused to record his evidence. For further evidence, if any, adjourned to 18-6-98". It is this order that is assailed in this Revision Petition. ( 4 ) FROM a perusal of the aforesaid impugned order it is clear that the proposed witness, Sri Venkata Subbaiah, has only refused to make Oath in the name of the God, but is ready to make an affirmation before giving evidence. It is this order that is assailed in this Revision Petition. ( 4 ) FROM a perusal of the aforesaid impugned order it is clear that the proposed witness, Sri Venkata Subbaiah, has only refused to make Oath in the name of the God, but is ready to make an affirmation before giving evidence. ( 5 ) SRI P. Sridhar Reddy, learned counsel for the petitioner-plaintiff relying upon Sections 4, 5 and 6 read with the Schedule of the Oaths Act, 1969 (Act 44 of 1969 for short "the New Act") submits that a witness has an option, in law, either to make an oath in the name of the God or make an affirmation before giving evidence, the Court below has grossly erred in refusing to record the evidence of the proposed P. W. 2, Sri Venkata Subbaiah, on the sole ground that he has refused to make an oath in the name of the God even though he was willing to make an affirmation, and that amounts to exercising its jurisdiction with material irregularity. ( 6 ) BEFORE examining the contentions of the petitioner s counsel, it would be appropriate, first, to note the meaning of the terms "oath" and "affirmation". ( 7 ) THERE are different kinds of "oaths" referable to different occasions. We are concerned here with "judicial oath" i. e. , the oath made by the witnesses before the Courts or the Judicial Tribunals. A Judicial Oath is an outward pledge made by a witness that his evidence is given under an immediate sense of responsibility of God. Whereas, affirmation is a solemn and formal declaration by a witness that he will tell the truth1. Thus, it can be seen that there is no significant difference between an oath and an affirmation. A believer may take oath in the name of the God and a rationalist may make a solemn affirmation. This freedom, either to make an oath or affirmation, is always recognized in almost all the civilized societies. In England whenever an oath is required under the Rules, a solemn affirmation is accepted in lieu thereof. The position is no different in this country. The Indian Oaths Act, 1873 (for short "the Old Act") clearly recognized this freedom of a witness under Ss. In England whenever an oath is required under the Rules, a solemn affirmation is accepted in lieu thereof. The position is no different in this country. The Indian Oaths Act, 1873 (for short "the Old Act") clearly recognized this freedom of a witness under Ss. 5 and 62 and in fact S. 6 clearly exempts Hindus and Muslims and any person who has an objection to make an oath, from making an oath before giving evidence and allow them to make an affirmation. 1) See the Black s Law Dictionary, 5th Edition page Nos. 55 and 966. 2) Sec. 5 Oaths or affirmations to be made by witnesses, interpreters, jurors.- Oath or affirmations shall be made by the following persons : (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 is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foreoging provisions of this section and the provisions of S. 6 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, nor affect the obligation of the witness to state the truth. Nothing herein contained shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence or necessary to administer to the official interpreter of any Court. after he has entered on the execution of the duties of his office, an oath or affirmation that he will fairthfully discharge those duties. Sec. 6. Affirmation by natives or by persons objecting to oaths :- Where the witness, interpreter or juror is a Hindu or Mohammedan;or has an objection to making an oath, he shall, instead of making an oath, make an affirmation. In every other case the witness, interpreter or juror, shall make an oath. Sec. 6. Affirmation by natives or by persons objecting to oaths :- Where the witness, interpreter or juror is a Hindu or Mohammedan;or has an objection to making an oath, he shall, instead of making an oath, make an affirmation. In every other case the witness, interpreter or juror, shall make an oath. ( 8 ) ACCEPTING the 28th report of the Law Commission, the Parliament has enacted the New Act, which has repealed the Old Act. Section 4 of the New Act enjoins, inter alia, that oaths or affirmations shall be made by all wintesses. Section 5 of the New Act clearly provides thus :-"sec. 5. Affirmation by persons desiring to affirm :-A witness, interpreter or juror may, instead of making an oath, make an affirmation". The New Act also prescribes the forms of oaths or affirmations under S. 6 read with the Schedule. Form No. 1 of the Schedule, which is relevant here, is as under :-"i do swear in the name of God/solemnly affirm that what I shall state shall be the truth, the whole truth and nothing but the truth". Proviso to sub-section (1) of S. 6 of the New Act3 even enable the Court to permit a witness, on his request, to make an oath or affirmation in any other form common amongst the class of persons to which he/she belongs. 3) Sec. 6. Forms of oaths and affirmations :- (1) All oaths and affirmations made under S. 4 shall be administered according to such one of the forms given in the Schedule as may be appropriate to the circumstances of the case :provided that if a witness in any judicial proceeding desires to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the class to which he belongs, and not repugnant to justice or decency and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained, allow him to give evidence on such oath or affirmation. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . ( 9 ) FROM the above discussion, it is clear that it is open to a witness either to make an oath in the name of the God or to make a solemn affirmation. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . ( 9 ) FROM the above discussion, it is clear that it is open to a witness either to make an oath in the name of the God or to make a solemn affirmation. The Court, cannot, therefore, refuse to examine such a person as a witness on the sole ground that he has refused to make an oath. That is what exactly the lower Court did in this case. That is nothing but exercise of jurisdiction with material irregularity. The impugned order is, therefore, unsustainable. ( 10 ) FOR the aforementioned reasons, the Civil Revision Petition is allowed. The impugned order is set aside. The trial Court is directed to record the evidence of the scribe of Ex. A-1 Will, Sri Venkata Subbaiah, or any other person or persons on making an affirmation as laid down under S. 5 read with the Schedule of the New Act. No costs. Petition allowed.