Child Cannot Be Used As A Pawn To Prove Adultery Between Parents: Gujarat High Court Dismisses Plea To Examine Minor As Witness

"A child cannot be used as a pawn to show that mother of the child was living in adultery as it is always open for the husband to prove it through other evidence. Further, the interest of the child should be given preliminary consideration in the battle between husband and wife." Gujarat High Court held that a minor child cannot be summoned as a witness in matrimonial proceedings to prove allegations of adultery against a parent.

A bench presided by Justice M. K. Thakker observed that permitting such an examination would cause grave psychological harm to the child and violate the overarching principle of prioritizing the child's welfare over the litigious interests of the parents.

Protecting the Child's Future

The petitioner-husband had sought to challenge an order of the Family Court, Gandhinagar, which rejected his application to examine his 16-year-old son as a witness. The husband contended that the minor was an eyewitness to his mother’s alleged illicit relationship and that his testimony was essential to substantiate his defense of adultery. Conversely, the respondent-wife argued that the child, who resides with the petitioner, should not be subjected to the trauma of court proceedings, which would detrimentally impact his mental well-being and educational prospects.

The Question of Witness Competency and Welfare

The court was primarily tasked with determining whether a minor child could be compelled to testify in a matrimonial dispute, particularly when the nature of the testimony involves the moral conduct of a parent. The bench examined whether the judicial system should facilitate a process that places a minor in the crossfire of their parents’ marital conflict.

Court Rejects Using Child as a Tool for Litigation

The High Court categorically held that the court must act as parens patriae to protect the child's interest. The bench noted that bringing a 16-year-old child to testify against their mother would not only inflict deep psychological scars but would also fundamentally compromise the dignity of the family unit. The court emphasized that the legal system cannot permit a parent to use their child as a mere instrument to secure an advantage in a divorce or maintenance proceeding.

"The interest of the child should be given preliminary consideration in the battle between husband and wife. In addition to that, in the mind of a child, the reputation and dignity of the mother is required to be protected."

Alternative Modes of Proof

Regarding the evidentiary requirements for proving adultery, the Court clarified that such allegations need not be proven through the testimony of the couple's children. The bench observed that the law provides sufficient avenues for parties to establish their claims through independent evidence, such as documentation or testimony from neutral third parties. In the present case, the petitioner had already placed on record an agreement executed in the presence of village community members, which the court found to be an available, alternative evidentiary source.

Court Affirms Family Court’s Discretion

Ultimately, the High Court found no infirmity in the Family Court’s order disallowing the application. The bench stressed that judicial discretion in matrimonial matters must be exercised with extreme caution to ensure that the child is shielded from the bitterness of the parents' litigation. Finding no merit in the petition, the court dismissed the plea and discharged the rule.

Date of Decision: 08 October 2026