In India, anyone who’s seen something can be a witness, including children. The court makes sure the child understands questions and can answer sensibly. But just like any other witness, their stories need to be checked well. Sometimes, courts worry if a child’s story might be changed by someone or if they didn’t understand things properly. So, they ask the child questions to see if they understand well enough to tell the truth. This is called a “voir dire” test.
The validity of child witnesses in matrimonial disputes in India is a nuanced issue, governed primarily by the Indian Evidence Act,1872.
Section 118 of the Act allows all persons, irrespective of age, to testify.
Section 118A evaluates the credibility of witnesses based on their competence and understanding.
Psychological Consideration
In Sakshi vs Union Of India Supp(2) SCR 723 (2004), the Supreme Court provided guidelines to protect child witnesses, allowing for closed circuit televisions, special rooms, and assistance from child welfare organisations to make the trial less traumatic for them.
In Shafin Jahan V Asokan K.M. & Ors. S.L.P. (Crl.) No. 5777 of 2017 Case, The High Court highlighted that in matrimonial disputes, the child involved should be regarded as a third party. The court, acting as Parens Patriae must ensure the child’s well being remains unaffected.
R.Selvaraja vs S.Latha C.R.P. PD. No. 3147 of 2011 (2013)
Facts: A trial involving a matrimonial dispute where a minor child was involved. The trial court examined the minor witness after posing questions to assess their capability before allowing their testimony under Section 118.
Issue: Whether the trial court’s assessment of the minor’s competency before examination was adequate and whether the examination of the minor as a witness by one of the parties was in line with the court’s role in determining a child’s wishes in a custody issue?
Judgement: The court set aside the trial court’s order dated 2011 and directed the exclusion of the evidence of the minor witness recorded by the trial court because of the error in allowing formal examination of the minor by one of the involved parties(wife) in the courtroom. Also emphasised the importance of ascertaining the child’s wishes regarding a custody issue.
Assessment Of Child Witness Testimony
Section 114 of the Indian Evidence Act urges caution when assessing testimony from child witnesses due to their susceptibility to external influences. (Need of corroborative evidence)
As it’s not always easy. Courts have to be very careful because a child’s story might not always be completely accurate. So, they try to make sure that what the child says matches with other information.
Done By: V. Madhumitha, 5th year B.A, LL.B(Hons.)
SRM University, Kattangulathur
For Origin Law Labs
