THE CHILD WHO SEES BUT IS NOT HEARD: RE- IMAGINING CHILD WITNESS TESTIMONY IN DOMESTIC VIOLENCE ADJUDICATION UNDER THE BHARATIYA SAKSHA ADHINIYAM, 2023

Abstract

Domestic violence adjudication in India presents a persistent evidentiary paradox. While the law increasingly recognises violence within the home as a public wrong, it remains hesitant to engage with those who most consistently witness it—children. Positioned at the intersection of evidence law and domestic violence jurisprudence, child witnesses occupy an ambiguous legal space: present within the domestic sphere, yet marginalised within adjudicatory processes. This article critically examines the treatment of child witness testimony in domestic violence cases, with specific reference to the Bharatiya Saksha Adhiniyam, 2023 and the Protection of Women from Domestic Violence Act, 2005. Through a doctrinal and comparative analysis, the article argues that Indian evidence law continues to operate within an adult-centric framework that equates vulnerability with unreliability. Despite repeated judicial affirmations that children are competent witnesses, their testimony is subjected to heightened scrutiny, discretionary exclusion, and demands for corroboration not imposed upon adult witnesses. The Bharatiya Saksha Adhiniyam, 2023, while modernising evidentiary rules in technological terms, fails to introduce child-specific procedural safeguards, thereby reproducing colonial assumptions regarding childhood and credibility. The article further interrogates the limits of judicial discretion and soft-law mechanisms such as Vulnerable Witness Deposition Centres, demonstrating that procedural sensitivity without statutory force results in uneven protection and inconsistent outcomes. Drawing on selective comparative practices from the United Kingdom and Australia, it contends that reliability and protection are complementary rather than competing values. Advancing a reformist thesis, the article conceptualises the child witness as a relational witness whose testimony captures patterns of domestic abuse rather than isolated incidents. It argues for a child-centric evidentiary jurisprudence grounded in constitutional values of dignity, equality, and fair procedure, calling for statutory recognition and trauma-informed evidentiary evaluation.