The Unheard Child: Reimagining the Role and Testimony of Child Witnesses in Domestic Violence Adjudication under the Bharatiya Sakshya Adhiniyam, 2023

Abstract

 Domestic violence adjudication in India reveals a significant evidentiary challenge: although children are often present during incidents of violence within the family, their experiences and testimony remain inadequately addressed within formal legal proceedings. Situated at the intersection of evidence law and domestic violence jurisprudence, child witnesses occupy a complex position in the justice process—frequently exposed to domestic abuse yet insufficiently recognised as important sources of evidence. This article critically examines the evidentiary treatment of child testimony in domestic violence proceedings, with particular reference to the Bharatiya Sakshya Adhiniyam, 2023 and the Protection of Women from Domestic Violence Act, 2005. Adopting a doctrinal and comparative approach, the article contends that the Indian evidentiary framework continues to reflect an adult-oriented understanding of credibility, often resulting in excessive judicial caution toward the testimony of children. Although Indian courts have consistently recognised that a child may be a competent witness, concerns relating to age, understanding, memory, influence, and emotional vulnerability frequently affect the manner in which such testimony is assessed. The Bharatiya Sakshya Adhiniyam, 2023 introduces significant changes to the Indian law of evidence, particularly in relation to contemporary forms of evidence, but does not establish a comprehensive statutory framework specifically addressing the participation and protection of child witnesses. The article also examines the role of judicial discretion and procedural initiatives, including Vulnerable Witness Deposition Centres, and highlights the limitations arising from their inconsistent implementation. A comparative examination of selected practices in the United Kingdom and Australia demonstrates the possibility of reconciling the protection of vulnerable witnesses with the requirement of evidentiary reliability. The article proposes a child-sensitive approach to evidence assessment that recognises children as relational witnesses capable of providing valuable accounts of recurring patterns and dynamics of domestic violence. It ultimately advocates the development of a child-centred evidentiary framework informed by constitutional principles of dignity, equality, fairness, and access to justice, together with trauma-informed methods for evaluating and recording child testimony.Keywords: Child Witness; Domestic Violence; Bharatiya Saksha Adhiniyam, 2023; Evidence Law Reform; Vulnerable Witnesses; Judicial Discretion; Trauma- Informed Adjudication.