- 09-Jan-2025
- Family Law Guides
In India, the legal right of a child to testify against their parents in criminal or civil cases depends on various factors, such as the nature of the case, the child's age, their mental capacity, and the type of case (whether it’s a family dispute or a criminal matter). While children can indeed testify in some cases, there are special considerations and safeguards to ensure that their testimony is reliable and that their rights are protected throughout the process.
Under Indian law, children can testify in both criminal and civil cases; however, there are certain legal safeguards and procedures in place to assess the child's ability to give credible testimony and to protect them from unnecessary stress or harm.
General Rule: There is no fixed minimum age at which a child can be considered competent to testify. Instead, the ability of a child to testify is typically based on their mental maturity and understanding of the nature of an oath and the obligation to tell the truth.
Indian Evidence Act, 1872 (Section 118): According to Section 118 of the Indian Evidence Act, any person who is able to understand the questions posed to them and give coherent answers can be a witness, regardless of their age. This includes children. However, the court will assess the child's mental maturity before accepting their testimony.
In criminal cases, children may be called as witnesses if they witnessed the crime or have relevant information. However, their testimony is subject to specific considerations:
In Cases of Abuse or Violence: If the criminal case involves child abuse or domestic violence, children may be required to testify about their experiences. In such situations, special measures are often taken to ensure the child’s emotional well-being, such as using a video-recorded testimony, court-appointed intermediaries, or conducting the testimony in a child-friendly environment.
Protection Under Juvenile Justice Act: Children who are victims or witnesses in criminal cases, especially related to sexual offenses, are given special protection under the Juvenile Justice (Care and Protection of Children) Act, 2015. The Act requires that their testimony be handled with the utmost care to minimize trauma.
In civil cases, such as divorce or custody disputes, children may be required to testify if their welfare or best interests are directly in question. For example, in cases of parental custody, a child’s preferences and experiences may be considered to determine which parent can provide the best environment for the child.
Family Court: If the case is related to family law, such as child custody, the family court may consider the child’s testimony to assess their preferences (depending on their age and maturity), but only if it’s in the child’s best interest.
Parental Conflicts: In contentious custody disputes, the testimony of a child might help the court determine which parent is better suited to care for the child. However, the court is cautious in relying heavily on the testimony of young children due to their emotional vulnerability.
Several factors influence whether a child can testify against their parents, particularly in terms of their mental capacity and the nature of the case.
The child must have a basic understanding of what is being asked and the importance of telling the truth. In cases where the child’s understanding is in doubt, the court may appoint child psychologists or other professionals to assess the child’s ability to testify.
Mental Age: A child may be considered competent to testify if they understand the difference between truth and falsehood. Generally, a child above the age of 7 may be considered to have the mental capacity to understand the significance of their testimony.
Criminal Cases: In criminal cases involving violence, sexual assault, or abuse, a child may be reluctant to testify against their parents due to fear or emotional attachment. To protect the child, the court can make provisions for special measures such as using video testimony, child psychologists, or private testimony chambers. These measures are designed to reduce trauma for the child while still allowing their testimony to be presented.
Civil Cases: In civil cases (such as custody or divorce), the court will assess whether the child’s testimony is necessary and whether it is in the best interest of the child to participate. Courts often prefer to gather evidence through other means, such as from welfare officers or psychologists, rather than directly involving the child, especially in emotionally charged cases.
The Indian legal system takes steps to protect children who may be required to testify against their parents. These safeguards include:
Child-Friendly Courtrooms: In cases where a child must testify, especially in criminal matters, the court will ensure that the environment is child-friendly and that the child is not subjected to any emotional trauma.
Video Testimony: In some cases, children may be allowed to give their testimony via video recording or remote video conferencing, so they are not physically present in the courtroom with the defendant (usually a parent in such cases).
Use of Intermediaries: Courts may appoint intermediaries such as trained child psychologists or specialized social workers to help the child give their testimony in a manner that is emotionally safe.
Children who testify, particularly in cases involving their parents, are entitled to legal representation to ensure their rights are protected. This includes ensuring that the testimony is voluntary and not influenced by external factors (such as parental pressure).
Children may be allowed to refuse to testify in some cases, especially if it is found that their testimony would cause serious emotional harm or trauma. In such situations, the court may consider alternative evidence or rely on the testimony of experts, including psychologists.
Indian courts have, in some cases, acknowledged the special nature of children’s testimony, particularly in criminal cases involving sexual abuse, and have taken steps to ensure that the child is not subjected to unnecessary trauma during the process.
For example, in cases of child sexual abuse, the Supreme Court has held that the testimony of the victim child, if given in a safe and non-coercive environment, can be accepted even if the child is reluctant or hesitant to testify against a parent.
Case 1: In a domestic violence case, a child is called to testify about incidents of violence witnessed between the parents. The child, who is 12 years old, gives testimony in the presence of a child psychologist to ensure they are not emotionally harmed during the process. The court accepts the testimony as it is relevant to the case, while also ensuring the child’s emotional well-being is prioritized.
Case 2: In a custody dispute, a 9-year-old child expresses a preference for living with one parent. The family court allows the child to provide their opinion, but only after evaluating the child’s maturity and ensuring that they are not being manipulated or coerced into making the statement.
Yes, children can testify against their parents in both criminal and civil cases in India, but several safeguards are in place to ensure that the process is in the best interests of the child and does not cause unnecessary trauma. The court evaluates the child’s mental capacity, the nature of the case, and the child's emotional state before allowing them to testify. Special provisions, such as video testimony, child psychologists, and protective measures, are often used to shield the child from further harm.
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