80 Recommendation

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\ THE POSITION OF CHILD IN LAW

i f
\ A THESIS I
I SUBMITTED FOR THE AWARD OF DEGREE I
I OF I
i i
DOCTOR OF PHILOSOPHY
% P
S U B M I T T E D BY
I I
f KAMLESH P. VAIDANKAR I
I DEPARTMENT OF LAW |
i FACULTY OF LAW j
i VEER NARMAD SOUTH GUJARAT UNIVERSITY I
i SURAT I
!
G U I D E D BY
PROF. Dr. VIKRAM DESAI
i FACULTY OF LAW |
p P
I VEER NARMAD SOUTH GUJARAT UNIVERSITY I
I SURAT I
2007
I i
I DECLARATION f
I
I I
I I declare that the thesis entitled "THE POSITION O? I
I %
\
\ CHILD IN LAW" which is submitted for the award of \
I% \i
I degree of Ph.D. in Law has not been submitted by me |
i %
I I
I in any other University for any degree or diploma. \
I I
I f
I i
1 Date : KamlesRTTVaidirHfai-- i
^ -I
u
'^''•^•^''•^•^''•^''•^'••''••''••'•'^
OBS^mCA'PE
i CEî!XIÎ^<0 "BCAT the tResis entitiel "IME ÔSIItOHf 0<F CH:IL<D HN't
I i
I LA'W" fuis 6een prepared: 6y %JiMyESK (P. %Âl^Ji^NKji<^ under my %
i \
I supervision and guidance. 7Be tresis is fiis cntm origirtaf'wor^ completed after t
i carejnt research andanatysis of the data avadaSle in previous -wor^s andvarious |
I I
I judiciaf pronouncements. iRe thesis is of the standard eocpected of a candidate |
i for<Ph.<D. degree in Law and I recommend that it Be sentfor evaCuation.
I ciÊji^fdCgvi^m
I '{^%%Mj^w^M>soV'mq%)3mM'Vmvmi3iî^
I i
lU
I I
I OTIC often feels sfiort of words wfiik e:xêssifw fiisfeeCiiws and deepest sense of\
S . s
I gratitude. I owe my deep sense of gratitude to several persons -wlio -were i
p I
I instrumentaCin fieCpin^ me accompCisd tfiis tasôf carrying our (egaCresearcfi. i
I I
I ^t the outset I am immensely grateful to my guide and Supervisor ^rof <Dr. |
I I
I 'Pi^mm ©teâz, Principal, Siddfiartfi Law CoOkge, %amref and<I>ean, <Facu[ty of\
I £flw, VeerârmadSouth Qujarat Vniversity, Surat, for fiis aSCeguidance and\
I I
I inspiration aff^ through out this research worêntitled as "The (Position of Child I
\ \
\ in Law'. %
I I
fI <Dr. I4fyam <Desai is a weHôivn
I
name in the fraternity of legaC academics in \
\ I
I the State of Qujarat. Jfe is an eozce^nt academician and a very compassionate \
I I
I human Being. Jfis vast ôwledge and practical approach to the legal ^^
i i
I technicalities was a perennial source of inspiration, information and energy for |
^ I
I me during this research. His innovative ideas heCpedme eyândthe horizons of$^
% \
i this study in compact but e::(haustive manner. j£e too^painsta^ng efforts in \
I i
I reading my worh^ again and again from time to time and gave valuable |
i %
I suggestions from time to time, which gave true spirit to this research Jil[\
I I
I through out this study he was very co-operative and helpfuC 9fe was ^ndi
I enough to spare a lot of time for guiding me from time to time even though he \
I I
I had ey^remely Susy and hectic schedule. It is only his painsta^ng and\
\ • • .I
p continuous efforts and inspiration that helped me successfulCy accomplish this |
I tasôf competing the present research. |
f 1
IV
\
\Î am aCso t/mn^fuC to <Dr, Syed" Mas-wood, (Dean, TacuCty of Caw, M S. j
I Ûniversity of(Saroda,forfiis ^ndco-operation during my researcH 9fe was very %
I accommodative and considerate in fadMtatin^ me in terms of time. (Besides \
f I
I encouraging me from time to time for compieting my dbctoraC thesis, Re shared i
I many important andvaCuaSle suggestions -with me. I really feeC oBGged 6y tfie \
\ \
\ co-operation that he expendedto mefromtime to time. |
I I
I I
I / wouCd 6e faiBng in my duty if I dbn't eyêss my deep sense of gratitude to \
I i
I Ms. ^njanSen ândya, Lecturer andMs. Jagruti<Pate[, (principal ^- T. CHoî |
i I
I Law CoUê, Surat \
i %
i %
\ l am equaUy gratefuC to my coQJeagues in ^Faculty of Law who were a constant %
% I
I source of encouragementfor me aH^ through out this research. I aCso ejêss my |
P I
I speciaC than^for Ms. JLrchana JLndhare and Ms. <!Purvi ô^riyaCfor their i
I continuous support and heCp. |
I I
I / am also than^C to my famify memSers who not onCy encouraged me to |
I I
^ complete this worh^Sut also shown tremendous patieiwe during atf these years. f
I I
$ t
I I am also sincereCy than^Cto alT those who were instrumental and hetpfuCin |
i
I completing this mighty tasôffinishing doctoraCresearch.
I i
i %
DEDICATED
TO
THE
UNDERPRIVILEGED
&
DESTITUTE
CHILDREN
OF
INDIA
VI
Index
Sr. Name of t h e Chapter / Topic Page
No, No.
Title Page (i)
Declaration (il)
Certificate (ill)
Acknowledgement (iv)
Chapters 1 to 8 1 to 4 2 6
Table of Cases (i)
Bibliography (xiii)
1.0 INTRODUCTION 1
1.1 Prelude 2
1.2 Significance of Study 13
1.3 Scope of the Study 13
1.4 Objectives of t h e Study 16
1.5 Hypothesis of the Study 17
1.6 Limitations of the p r e s e n t Study 19
1.7 Research Methodology Adopted 19
1.8 Scheme of t h e Study 20
1.9 UtiHty of the Study 25
2.0 THE POSITION OF CHILD 28

UNDER HINDU LAW
2.1 Adoptions 33
2.1.1 Statutory Provisions relating to 38
Adoptions [Hindu Adoption and
Maintenance Act, 1956]
2.1.2 Uniform Adoption Law 52
2.1.3 Inter-country Adoptions 53
2.2 Guardianship a n d Custody 56
2.2.1 Guardianship 57
2.2.2 Custody 63
2.3 Matatenance 68
2.3.1 Provisions under Hindu Adoption 69
and Maintenance Act
2.3.2 Maintenance : Hindu Marriage Act, 76
1955
2.3.3 Maintenance : The Code of Criminal 76
Procedure. 1908
2.4 Child ]V1 arrlage 79
2 . 4 ^ Child Marriage Restraint Act, 1929 81

UNDER CIVIL LAWS
3.1 Position of Child in various Contractual 91
Obligations
3.1.1 Contracts entered into for the 99
benefit of minor
3.1.2 Ratification on attaining majority 100
•
3.1.3 Contracts entered into for 102

necessities of a minor
3.1.4 Position of child in contracts of 105
marriage
3.1.5 Position of child under a contract of 108
apprenticeship
3.1.6 Position of child under partnership 109
contracts
3.1.7 Position of minor under contracts 113
relating to immovable properties
3.2 Position of child in Torts 116
3.2.1 Rights of child against pre-natal 117
injuries
3.2.2 Child's right of action against 118
parents or persons with quasi-
parental authority
3.2.3 Vicarious liability of parents and 118
guardians
3.2.4 Child's right to reputation 119
3.2.5 Protection against nuisance 120
3.2.6 Negligence of persons with quasi- 120
parental authority
3.2.7 Doctrine of contributory negligence 123
vis-a-vis children
3.2.8 Dangerous premises or structures 124
3.3 Provisions relating to child under Code of 126
Civil Procedure, 1908
3.3.1 Who Is minor? 129
3.3.2 Suits by minor 129
3.3.3 Fraud or negligence on the p a r t of 133
next friend
3.3.4 Retirement of next friend 134
3.3.5 Course to b e followed w h e n minor 136
becomes major

UNDER CRIMINAL LAWS
4.1 Provisions in Indian Penal Code 141
4.1.1 General Provisions 145
4.1.2 Specific Offences Against Children 151
4.1.2.1 Abetment of suicide of 152
child
4.1.2.2 Offences relating to Birth 153
of t h e Child
4.1.2.3 Offences relating to 158
kidnapping of a child
4.1.2.4 Child trafficking for 178
prostitution etc.
4.1.2.5 Child rape 183
4.2 Juvenile J u s t i c e (Care a n d Protection of 192
Children) Act, 2 0 0 0
4.2.1 Juvenile Delinquency 193
4.2.2 Juvenile J u s t i c e viz-a-viz Juvenile 194
J u s t i c e Act
4.2.3 Juvenile J u s t i c e Act, 1986 195
4.2.4 Juvenile Justice (Care and 197
Protection of Children) Act, 2000
4.2.5 Structure of Juvenile Justice (Care 199
and Protection of Children) Act,
2000
4.2.5.1 AVho is Juvenile? 204
4.2.5.2 Determination of the age of 207
the Juvenile
4.2.5.3 Juvenile in Conflict with 216
Law
4.2.5.4 Juvenile in need of care 217
and protection
4.2.5.5 Juvenile Justice 218
Philosophy
4.2.5.6 Child and Capital 219
Punishment
4.2.5.7 Right to privacy 228
4.3 Provisions relating to Child under Code of 232
Criminal Procedure
4.4 Provisions relating to Child under Indian 242
Evidence Act. 1872
4.4.1 Introduction 242
4.4.2 Who may testify? 244
5.0 THE POSITION OF AN UNBORN 251
CHILD IN LAW
5.1 Prelude 252
5.2 Right to life 254
5.3 Female foeticide and infanticide 255
5.4 Provisions in Criminal Law 256
5.5 Medical Termination of Pregnancy Act, 1971 262
5.6 Pre-natal Diagnostic Techniques (Regulation 266
a n d Prevention of Misuse) Act, 1994
6.0 CHILD LABOUR AND LEGAL 271

IMPLICATIONS
6.1 Prelude 272
6.2 Children u n d e r Bonded Labour 277
6.3 Child Labour : International Scenario 278
6.4 Child Labour : Domestic Scenario 294
6.4.1 The Indian Constitution 294
6.4.2 Child Labour : Legislative Framework 301
6.5 Child Labour : C a u s e s and Factors 325
6.6 Judicial Response 328
7.0 SEXUAL ABUSE OF CHILDREN 346

AND LEGAL IMPLICATIONS
7.1 .. Prelude 347
x:2 Incestuous Sexual Abuse 349
y 7.3 Consequences of Incestuous Sexual Abuse 355
7.4 Remedies 356
7.5 Child Trafficking and Prostitution 361
7.6 International Concern 368
7.7 Constitution of India 370
7.8 Legislative Response 371
7.9 The Immoral Traffic (Prevention) Act, 1956 377
7.10 Judicial Response 379
7.11 Child-rape 383
7.12 Relevance of consent of child 389
7.13 Absence of injuries on male organ 390
7.14 No need of corroboration of victim's 391
accusation
7.15 Reliability of evidence of medical professional 393
7.16 Child Sexual Abuse vis-a-vis Information 395
Technology
8.0 CONCLUSION AND 400
SUGGESTIONS
Chapter - 1
INTRODUCTION
1.1 Prelude
1.2 Significance of Study
1.3 Scope of tine Study
1.4 Objectives of the Study
1.5 Hypothesis of the Study,
1.6 Limitations of the present Study
1.7 Research Methodology Adopted
1.8 Scheme of the Study
1.9 Utility of the Study

Chapter - 1
INTRODUCTION
1.1 Prelude
Children are assets of the nation and future of the country.
Today's child is tomorrow's adult citizen, a responsible
nnember of the society. William Wordsworth has rightly said
that ' t h e child is father of m a n ' ^ The childhood is most
precious gift of the nature. Host of pur sweet (sometimes
bitter) memories are linked with our childhood. Unless and
until a child Is properly brought up, it cannot give a good
citizen to the society. Therefore, it is absolutely essential to
give proper care, special protection and required facilities to
the children. The child, which is brought up in family
environment, in the atmosphere of love and affection, in
care of parental love, with due education and special
protection from the society, is often found to be making an
ideal citizen. The attitudinal temperaments among adults
are the nurtured results and outcome of their childhood.
More so, it depends on the environment in and outside his
home viz. healthy and unhealthy conditions at home,
ethical and unethical societal norms and good and bad
company in which he keeps. The neglected or abandoned
child, who has been abused by the family and the society.
' http://www.onIiine-literature.com/authorsearch.php
carelessly tackled, not properly educated, is often found to
become an adult with different psjychological complexities.
They often develop a feeling of law self-esteem, depression,
a sense of loss and more often become despondent, avoid
friends and family and thereby become lost in a world of
self-destructive behavior. A healthy society needs healthy
citizens. A civilized society needs civilized citizens. And to
be civilized, one needs to have good education, due care
and protection from his family and the society. Therefore,
goodness or badness of any adult person has something
linked up with his childhood, either directly or indirectly.
Such is the importance of childhood. John Milton, an
eminent author, in Paradise Regained, has quoted :
^Childhood shows the day

as morning showfi the day'
Children are pure, innocent and solemn. They don't think

bad. They don't cheat. They don't conspire. They are not
selfish. They are not demanding. Only thing they need is
care and protection from their parents, from us, from the
society, from the State. Following words of Shri
Rabindranath Tagore throws light on said aspects of
childhood;
"From the solemn gloom of the temple
children run out to play in the dust,
God watches them playing and forgets priests;
Such is the purity of children/'
Here following words of Mamie Gene Cole In respect of child

are worth noting;
"J am the child.

All the world waits for my coming.
All the earth watches with Interest to see what I shall
become.
Civilization hangs in the balance.
For what I am, the world of tomorrow will be.
I am the child.
You hold in your hand my destiny.
You determine, largely, whether I shall succeed or
fail.
Give me, I pray you, these things that make for
happiness.
Train me, I beg you, that I may be a blessing to the
world/'
Much has been written in respect of child and childhood.

Society in general has by now become fully aware of the
importance of ' c h i l d ' and related problems. Many efforts in
various forms have been initiated to combat socio-economic
evils affecting tlie rights of child. The role played by Non-
governmental Organizations, social workers, academicians,
parents and the government is worth noting.
Since the law is said to be the means of social engineering,

the ultimate liability is shifted on the shoulders of the law to
make adequate provisions for betterment of child. I t is true
that in any civilized society, law plays a very vital role.
However, admittedly it has its own limitations. No one
would deny the fact that now-a-days it has become fashion
to curse law for any social, economic or political problem.
The problems relating to child is no exception to it.
Whenever, any issue relating to violation of child rights is
raised, the blame is ultimately directed towards the legal
system in India. Law is cursed. Law has been used as a tool
to treat the social ailments. So legal treatment is possible
for every social pathological problem. But law is not the
only answer that cures every social problem.
The lavy is to cater to the needs of the changing society.

Hence, the law has to be dynamic and it cannot afford to be
static standstill. I t is vehemently Argued that existing legal
system is not perfect one and the provisions relating to
children are inadequate. Curiously, the people cursing the
law are very often unaware about the existing legal
provisions pertaining to welfare of a child. Since the issue is
of grate social significance, the persons belonging to all
fields including judges, lawyers, academician and jurists
have put forth their views on this aspect. I t is worth noting
that judicial activism has also played a significant role in
this context.
In view of above, it was thought necessary to carry out a

detailed research on the subject. An attempt has been
made in this study to bring all the related legal provisions in
India pertaining to child under one shelter. These provisions
have been analyzed in light of established legal principles.
Wherever possible, landmark decisions of Hon'ble Supreme
Court and various High Courts have been discussed in
detail.
Since the topic has been entitled as 'The Position of Child

in Law', two terms require special attention and specific
elaboration. These two terms are ' l a w ' and 'child'. The
term ' law' has been used here in a very broader sense.
This is on account of the nature of the study. For the
purpose of the study, the word ' law' has been used to
include not only enactments, but also ordinances, rules,
regulations, by-laws, circulars, orders, notifications and
accepted customary and traditional practices which have
force of law.
While dealing the question ' what is the position of child in
law?', it becomes necessary to ascertain ' w h o is child?'. It
is very much difficult to exactly define the word "child". The
'child' is a generic word. According to Oxford English
Dictionary, ''child" means a young human being. In law, the
child is referred to by various names viz. child, minor,
adolescent, infant, juvenile etc. Furthermore, the definition
of 'child' is not uniform and the same differs from Act to
Act, depending upon the nature and the purpose of that
enactment. In all such enactments, the word 'child' (which
is also sometimes referred to as minor, adolescent, infant,
juvenile etc.) has been defined on the basis of his age. It
would be pertinent to discuss / enumerate some of the
important definitions given under some prominent Acts.
Definitions and Terms :Their Inconsistency

There is lack of consistency in definitions and terminology
under various statutes relating to child. They are as
follows:-
Term Definition Section/ Statute Name
Article
Child For the purpose of the Article 1 Convention of
present Convention, a Rights of the
child means every human Child
being below the age of
eighteen years unless
under the law applicable
to the child, majority is
attained earlier
Child "child" means a person Sec. Factories Act,
who has not completed 2(c) 1948
fifteen years of age.
Child "child" means a person Sec. Minimum
who has not completed 2(bb)* Wages Act,
his fourteen years of age. 1948
Child "child" means a person S. 2 Children
who is under the age of (Pledging of
fifteen years. Labour) Act,
1933
Child "child" means a person Sec. The Child
who has not completed 2(ii) Labour
his fourteen years of age. (Prohibition
and
Regulation)
Act, 1986
Child "child" means a boy who Sec. The Children
has not attained the age 2(e) Act, 1960
of sixteen years or a gir!
who has not attained the
age of eighteen years.
Child "child" includes a stillborn 3(b) Maternity
child. Benefit Act,
1961
Child "ciiiJd" means a person Sec. The Immoral
who has not completed 2(a)(ii) Traffic
the age of sixteen years. (Prevention)
Act, 1956
Minor "minor" means a person Section The
who has not attained the 2(e) Citizenship
age of eighteen years Act, 1955
Minor a minor is a person who Section Indian
has not completed 3 Majority Act
eighteen years of age.
However, in following two
cases he attains the
majority after 21 years of
age;
1) where a guardian of a
minor's person or
property has been
appointed under the
Guardians and Wards
Act, 1890 or
2) where the
superintendence of a
minor's property is
assumed by a Court of
Wards.
Minor "'minor" means a person Section Workmen's
who has not attained the 2 ( f f ) * * Compensation
age of 18 years. Act, 1923
Minor "minor" means a person Sec. The Medical
who under the provisions 2(c) Termination
of Indian Majority Act, of Pregnancy
1875, is to be deemed not Act, 1971
to have attained his
majority.
Minor ''minor" means a person Sec. Hindu
who has not completed 3(c) Adoptions
his or her eighteen years. and
Maintenance
Act, 1956
Minor "minor" means a person Sec. Hindu
who has not completed 4(a) Minority and
the age of eighteen years. Guardianship
Act, 1956
Minor "Minor" means a person S. 2(d) Child
of either sex who is under Marriage
eighteen years of age. Restraint Act,
1929
Minor "minor" means a person Sec. The Immoral
who has completed the 2(c)(ii) Traffic
age of sixteen years but (Prevention)
has not completed the Act, 1956
age of eighteen years.
Adolescent "adolescent" means a Sec. Factories Act,
person who has 2(b) 1948
completed fifteen years of
age but not completed
10
eighteen years.
Adolescent "adolescent" nneans a Sec. Minimum
person who has 2(a) Wages Act,
completed his fourteen 1948
years of age but not
completed his eighteen
years.
Young "'young person" means a Sec. Factories Act,
person person who is either a 2(d) 1948
child or adolescent.
Juvenile / 'Juvenile' or ' c h i l d ' Sec.2(k) Juvenile
Child means a person, who has Justice (Care
not completed eighteenth & Protection
year of age of Children)
Act, 2000
[Section 2(bb) was Inserted in the Minimum Wages
Act, 1948 by Child Labour (Prohibition and Regulation)
Act, 1986]
** [Section 2(ff) was Inserted in the Workmen's
Compensation Act, 1923 by Workmen's Compensation
(Amendment) Act, 1959]
For the application of S. 363A of Indian Penal Code (which

deals with kidnapping or maiming a minor for purposes of
begging), ' minor' (as per said section) means, in the case
of a male, a person under sixteen years of age; and in the
case of a female, a person under eighteen years of age.
11
TlZll
t^
It must be remembered that generally the word ' c h i l d ' and
the word ' minor' are used as interchangeable terms and
they are taken to be synonyms. However the terminology
depends upon the nature of the legislation and purpose of
the provisions thereof. For instance, Indian Penal Code
1860 has used both the terms ' m i n o r ' as well as 'child'.
Similarly, the Immoral Traffic (Prevention) Act, 1956
defines both "child" as well as "minor". That means that
both are not used as synonyms here and application of
provisions for child and minors are different (for the
purpose of said Act).
DUHAIME'S LAW DICTIONARY defines the Minor as "A

person who is legally underage. It varies between 21 and
18 years of age. Each state sets an age threshold at which
time a person is Invested with all legal rights as an adult.
For many new adults, this may mean access to places
serving alcohol and the right to purchase and consume
alcohol, smoke cigarettes and drive a car. But there are
many other legal rights, which a minor does not have such
as, in some states, the right to own land, to sign a contract
or to get married."
12
1.2 Significance of S t u d y
One of the prominent reasons for undertaking this task of
carrying out the doctrinal research on finding the position of
child in law, is that since second half of the 2 0 ^ century,
there has been a growing concern for protection and
promotion of rights and Interests of the children. Number of
International Conventions talk of protecting the children's
rights in various ways. There are number of international
documents which are directed towards achieving welfare of
children. The Constitution of India has extensive provisions
in this regard. Then there are various specific legislations
dealing especially with children. Further there are scattered
provisions in other statutes which have impact on interests
of the children. I t is admitted fact that no country can
secure a good future unless it has. In its laws, the
provisions for making the children educated, responsible,
and civilized citizens. This has to be done by making
protective discrimination in favour of children. The children
of tender age are likely to be exploited by unscrupulous
persons on account of their inexperience and vulnerability.
1.3 Scope of the study

By respecting child, society is respecting itself^. Preamble to
Convention on the Rights of the Child, 1989 states that.......
the child, by reason of his physical and mental immaturity.
National Charter for Children, 2003
13
needs special safeguards and care including appropriate
legal protection, before as well as after birth. Since we are
a welfare State, the protection of legal rights a child
obviously finds place in the priority list of our country.
India has ratified the Convention for the Rights of the Child.
Constitution of India protects rights of the Children. Various
provisions, directed towards prohibition of child labour,
have found place in Statute book in India. Other civil and
criminal laws of the land have specific provisions not only
for protection of the rights of the children but also for their
betterment and welfare. Even so, half of the children in
India remain illiterate, mal-nourished and neglected. Poor
children are deprived of basic necessities of life including
food, shelter, cloths and education. Government has formed
National Policies from time to time. In the year 2003
Ministry of Human Resource Development, Department of
Women and Children Development, has adopted Resolution
on 9'^'' Feb., 2004^. Still this has not made any substantial
change in the situation. Child abuse Is rampant and
obvious. Children are exploited, socially and economically.
Incidences of child trafficking are reported day in day out.
Judiciary has also left no stone unturned to give justice to
the noble cause of ^ protection and promotion of rights of
children', Hon'ble Supreme Court has issued guidelines and
'1
Published in Extraordinary Gazette of India
14
directions to the Government from time to time on various
issues protecting interest of the children. Hundreds of
researches have been carried out to probe into the matter.
But it is felt that situation has worsen instead of improving.
However, amongst all this, it is heartening to note that

there has taken place a wide-spread social awareness as to
the rights of children. Society has started showing concern
for the cause of children. The concept that 'The today's
Child is tomorrow's citizen' has becoming out-dated and
being substituted by a new emerging trend that today's
child Is not tomorrow's citizen, rather it is today's citizen;
and therefore, even child has all the rights which today's
citizen ought to have. This has been aply put into words by
Gabriela Mistral as under :-
We are guilty of many errors and many faults,

but our worst crime is abandoning t h e children,
neglecting the foundation of life. Many of t h e
things w e need can w a i t , t h e ' C h i l d ' cannot
To him w e cannot answer ' T o m o r r o w ' .
His name is 'Today'.
The scope of the present research is to examine whether

we have succeeded in achieving the aforementioned noble
objective as contained in the Convention on the Rights of
15
the Child. Have we been able to execute and give fullest
effect to the Constitutional mandate in this behalf? Have we
succeeded in implementing the various statutory provisions
contained in various statute which specifically protect the
children? If no, then what difficulties our legislation and
administration is facing while giving effect to this noble
objective.
1.4 O b j e c t i v e s of t h e S t u d y :
The present study has the following objectives :-
1. To evaluate the existing provisions under various

laws
2. To study the effectiveness of child related laws
3. To find out the inconsistencies and lacunae
4. To appreciate the judicial approach towards child
related problems
5. To suggest the necessary changes / modifications /
amendments In laws, wherever required
6. To make a complete research on child related laws
in India at macro level so as to lay down the
foundation to facilitate the further research in this
area at micro level.
16
1.5 H y p o t h e s i s of t h e s t u d y
For the purpose of present study, following hypothesis have
been formulated -
1. The child abuse - social, economic and physical is
rampant in India. However, for iast few decades
there has been a growing awareness for protection
of child rights.
2. There are host of legislations which are specifically
directed towards affording protection to the
children.
3. Legal protection is necessary for physical and
mental development of children.
4. Child labour is one of the important social menaces
in India today. The provisions under Constitution of
India are inadequate as it prohibits the employment
of children below 14 years of age in hazardous
processes only. Further the child labour is not a
legal matter but it is influenced to a greater extent
by socio-economic overtones working behind It.
Therefore, the law alone cannot combat this
problem.
5. There is lack of uniformity in legislations relating to
children. For instance in the matter of adoption,
maintenance etc. there is no uniform law. This
adversely affects the interests of the children.
17
6. In some cases there seem to be anomaly prevailing
In civil laws pertaining to children. For instance,
general principles of contract provide that a minor,
after attaining the age of majority, cannot ratify the
contract entered into by him during his minority.
On the other hand, under Partnership Act, a minor
who, after attaining the age of majority opts to
continue to be a partner of the firm, becomes
personal liable for all the acts of the firm done since
the date of his admission to the partnership. Thus,
it again amount to be the ratification of a contract
entered into by a minor during his minority.
7. There has been a dearth of specific legal provisions
for protecting the children against ' Sexual Abuse'.
8. There has been a great anomaly as to the age of
minor for deciding his criminal liability. The age
prescribed for this purposes differs not only from
statute to statute but even it differs from provision
to provision.
9. There had been dearth of provisions of criminal
laws pertaining to children. However, after the
advent of Juvenile Justice (Care and Protection of
Children) Act, 2000, the position of child accused is
likely to be improved significantly.
10. Except in few areas pointed out in the study, there
are extensive provisions relating to children under
18
Indian Laws. However, it appears that indifferent
approach on the part of the law enforcement
agencies and the society in general, has proved to
be" a hurdle in protecting the rights and Interests of
the children to the maximum possible extent.
11. This is an era of technological advancement. It has
affected all sections of the society in different ways.
It has its positive and negative effects. But in this
era of information technology, there prevails a total
vacuum of specific provisions which can afford
protection to the children against misuse of the
technology against them.
1.6 Limitations of tlie present Study

The protection of rights and Interests of the children has
many aspects viz. social, economic, political & legal.
However, the scope of present study is confined to study,
examine & evaluate the position of child in law. Amongst
the thousands of cases decided by Hon'ble Supreme Court
and various High Courts, some remarkable and landmark
decisions have been covered for the purpose of this study.
1.7 R e s e a r c h lêthodoiogy A d o p t e d
For the purpose of this study, the doctrinal research
methodology has been adopted. The data has been
collected from various primary and secondary sources (for
19
which references have been given at appropriate places).
Further to add value to the study, relevant material and
information has been colleted from the International
Instruments and Documents, Conventions, Constitution of
India, the specific statutes dealing with children and also
the scattered provisions dealing with children in the other
statutes. The material has also been collected from
standard law books by renowned authors, reputed national
and state level law Journals and Reports, cases reported in
media, magazines, research articles published at various
places, papers presented at various conferences, seminars
and proceedings of various workshops and symposia. The
collected and complied data available with the various study
groups, institutions, organizations both governmental and
non-governmental on the subject matter have been taken
into consideration. In order to update the data, the
reference from websites and Internet Is also used.
1.8 Scheme of the Study

The present study has been divided into nine Chapters. The
details of which are as under :-
Chapter-1 The first Chapter deals with 'Introduction' of the

topic of the present study. It contains the
various definitions, both general and legal, of the
terms 'child' and 'minor' as given in various
20
statutes. It also contains the discussion as to
significance, scope, aims and objects of the
study, the Research Methodology adopted for
this study. A hypothesis has been formulated
that is to be tested in the course of study. The
scheme of the study and utility of the study have
also been incorporated in this Chapter.
Chapter 2 The Second Chapter discusses the ' Position Of

Child Under Hindu Law', i n the years 1955 and
1956, the then Government took initiative
towards social reform and codified almost all
personal laws relating to Hindus. This
codification covers the legal provisions relating
to position of child in cases of adoption,
guardianship, custody, maintenance, succession
& marriage. In this Chapter, the said areas have
been covered; the legal provisions have been
examined, analyzed and comments have been
made on it.
Chapters 'The Position Of Child Under Civil Laws' is

discussed in this Chapter. In the present
Chapter, an attempt has been made to cover all
areas in civil laws containing specific provisions
pertaining to children. The study is divided into
21
appropriate headings for the sake of brevity and
convenience. For instance, the position of chiid in
general contracts, contracts of marriages,
contracts of apprenticeship, contracts of
partnership, contracts Of immovable properties,
tortious liability of children etc.
Chapter 4 In the Fourth Chapter of the Study ^The Position

Of Child Under Criminal Laws' is examined. The
study in the present Chapter is divided into two
parts viz. Provisions relating to children under
Indian Penal Code and Juvenile Justice (Care &
Protection of Children) Act, 2000. In first part,
the provisions relating to offences by and against
children have been discussed in context of
judiciai pronouncements. In the latter part, the
legislation relating to Juvenile Justice i.e.
Juvenile Justice (Care St Protection of Children)
Act, 2000 has been (discussed in detail. The
provisions have been substantiated with judicial
philosophy behind it.
Chapter 5 The Fifth Chapter of the Study deals with ^The

Position Of An Unborn Child In Law'. In Its
common parlance, the term ^ person' refers to an
existing person. But for the purpose of
.22
application of legal provisions, the term has been
used in its widest possible connotation. Here the
term ' person' sometimes used to mean and
include even an unborn person i.e. the child in
womb. In the present Chapter, the right to life of
an unborn child has been discussed in detail with
reference to female foeticide and infanticide,
criminal provisions relating thereto. Medical
Termination of Pregnancy Act, 1971, Pre-natal
Diagnostic Techniques (Regulation and
Prevention of Misuse) Act, 1994 etc.
Chapters The Sixth Chapter deals with ^ Child Labour And

Legal Implications'. The child labour is one of the
greatest social evils in our country. Child has
been the cheapest and most disciplined labour.
Children have been working at home and
outside, in factories and fields, in hazardous
occupations, in hotels, restaurants and as
domestic aid. I t has been seen that boys and
girls have been working at an early age of sixth
or eight. Their working hours have been long,
their wage have been meagre**. In this Chapter,
therefore, a probe has been made in prevailing
position of child labour in India. At the same
Children and Legal Protection, by Prof. Paras Diwan, Deep and Deep Publications
23
time, the provisions in various international
documents, Conventions liave been examined.
The provisions of Indian Constitution has also
been assessed. Further reference has been made
to specific statutes which prohibit child labour.
This Chapter also deals in sufficient details, the
judicial approach towards the menace of Child
Labour in India.
Chapter 7 The Seventh Chapter of the Study examines

'Sexual Abuse Of Children And Legal
Implications'. Needless to mention that Sexual
Abuse of Children is rampant in India. But the
problem is not confined to India only, rather it is
an international phenomenon. The child sexual
abuse takes place in many ways viz. incestuous
sexual abuse, child trafficking and prostitution,
child rape etc. The same areas have been
examined in detail with legal perspective in the
present Chapter.
Chapter 8 The 8*^ Chapter of the Study contains

'Conclusion and Suggestions'. This Chapter
contains the conclusion of this research study. It
embodies the findings and outcome of the
research. On the basis of conclusion that has
24
been arrived at after the detailed study of
various \aws relating to chUdren, an attempt has
been made to give suitable suggestions. It is
genuinely hoped that the present research and
the suggestions made therein would go a long
way in helping one to precisely understand the
Position of Child in Laws in India, and also to
appreciate the lacunae in the present legal
system.
1.9 Utility of the Study

Children of the world are innocent, vulnerable and
dependant. They are ail curious, active and full of hope.
Their life should be full of joy and peace, playing, learning
and growing. Their future should be shaped in harmony and
co-operation. Their childhood should mature, as they
broaden their perspectives and gain new experience.... The
children cannot wait till tomorrow; they grow everyday;
along with them grows their sense of awareness about the
surroundings. Tomorrow is no answer; the goal of their
present care, protection and rehabilitation is the need of the
hour The child shall be protected against all forms of
neglect, cruelty and exploitation. He shall not be subject to
traffic, in any form. The child shall not be admitted to
employment before an appropriate minimum age; he shall
in no case be caused or permitted to engage in any
25
occupation or employment which would prejudice his health
and education, or interfere with his physical, mental or
moral development the child shall be protected from
practices which may foster racial, religious and any other
form of discrimination. He shall be brought up in a spirit of
understanding, tolerance, friendship among peoples, peace
and universal brotherhood and in full consciousness that
this energy and fallates should be devoted to the service of
his fellow-men^.
The above observation of the Hon'ble Supreme Court of

India contains the gist of laws relating to children In India.
It may be mentioned here that host of law books and books
on social studies are available which specifically deal with
child rights. However, this is the area which is ever growing
and unending. The importance of children cannot be
confined In words; hence the writings on the child rights
can have no end. To secure to the nation a bright future, it
is indispensable that the rights of the children should be
protected and their dignity should be upheld in true latter
and spirit.
The present research postulates the key-role that has been

played by the law in protecting and promoting the interests
of the children. The present work also brings to light the
^ Gaurav Jain v. UOI, 1997(8) SCC 114
26
benevolent role played by Indian judiciary in contributing
generously towards the noble cause of protecting child
rights. The present work also brings forth the different
views of jurists, judges, lawyers and academicians towards
the different provisions of law relating to children.
It is humbly submitted that the present research study

would go a long way in helping the law teachers, judges,
lawyers, law-students, academicians, social scientists,
social-workers and even a lay-man in understanding the
correct Position of Child in Law in India. Further, it is also
submitted with due respect that the present study has been
done on macro level, thereby assessing the overall position
of child in different laws in India. It is hoped that this study
and the suggestions made thereunder would help other
research scholars to make further research at micro level
relating to any of the peculiar problems mentioned herein.
27
Chapter - 2
THE POSITION OF CHILD UNDER

H I N D U LAW
2.1 Adoptions
2.1.1 Statutory Provisions relating to Adoptions [Hindu
Adoption and Maintenance Act, 1956]
2.1.2 Uniform Adoption Law
2.1.3 Inter-country Adoptions
2.2 Guardianship and Custody

2.2.1 Guardianship
2.2.2 Custory
2.3 Maintenance
2.3.1 Provisions under Hindu Adoption and l^laintenance
Act
2.3.2 Maintenance : Hindu Marriage Act, 1955
2.3.3 Maintenance : The Code of Criminal Procedure,
1908
2.4 Child Marriage

2.4.1 CliiJd Marriage Restraint Act, 1929
28
Chapter - 2

H I N D U LAW
The child occupies an important position in almost all

personal laws. Therefore, special provisions for children are
to be found in personal laws - codified as well as
uncodified. Since the study of personal laws is a very vast
subject, for the sake of brevity and convenience, the scope
of present study has been confined mainly to position of
child only in Hindu personal law. However, wherever
possible and practicable, some references are made to
relevant provisions of some other personal laws too.
The term ' Hindu', even in uncodified law, has not been
defined strictly in terms of religion. Before its codification in
the years 1955 and 1956, the Hindu personal law applied to
all those who were Hindus by religion. After codification,
Hindu law came to apply even to the persons, who strictly
speaking do not profess Hindu religion. Therefore, it is very
pertinent to ascertain to whom Hindu law applies. The
codified Hindu law applies to -
29
a. a person who is a Hindu, Jain, Sil<h or Budddhlst by
religion,
b. a person who is born of Hindu parents, and
c. a person who is not Muslim, Christian, Parasi or Jew
and who is not governed by any other law.
Thus the category ' c ' above is residuary category. It

includes all those who are not Muslims, Christians, Parasies
or Jews and to whom no other person law applies.
Since, the Hindu law essentially applies to Hindus, in a

given case, it is required to be examined whether he is
Hindu. When a person has faith In Hindu religion and he
professes and practices Hindu religion, he is Hindu. But a
person does not cease to be Hindu if he does not have faith
in Hindu religion or does not profess or practice Hindu
religion. If a person is Hindu by birth, Hindu law continues
to apply him Irrespective of the fact whether he is theist or
atheist.
As mentioned above, if both the parents of a child are

Hindus, it Is treated Hindu. Thus, Hindu law applies to a
child whose both the parents are Hindus. It also applies to a
child whose one of the parents is Hindu and another is Jain,
Buddhist or Sikh. Thus the test is the family in which such
child took birth.
30
However, more difficult situation would be when only one of
the parents is Hindu. In such a case, the Hindu law applies
to the child if following two conditions are satisfied;
a. at the time of his birth one of the parents was

Hindu, and
b. the he has been brought up as a member of the
tribe, community, group or family to which Hindu
parent belonged at the time of his birth.
The important requirement is that the child should have

been brought up as a member of the tribe, community,
group or family to which Hindu parent belonged at the time
of its birth. If suppose a child is born to a Hindu father who
is Brahmin and has been brought up as Kshtriya, then
would it not be treated Hindu? In this context. Paras Divan,
an eminent author on Hindu Law, states that the test is that
the child should be brought up as a Hindu and if a Hindu
parent's child is bought up in any form or development of
Hinduism, Buddhism, Jainism or Sikhism, he will be Hindu.
He further states that bringing up of the child in any of the
religions of Hindus is not necessary, the requirement being
that the child should be brought up in the Hindu way of
life^^.
" Diwan Paras- Modern Hindu Lawl3th Edn. 2000
31
India is a country of diverse cultures and with people
professing different religions. Whatever the religion may be^
the ultimate goal of human life is to live his life happily and
peacefully. All religions in India (perhaps all religions of the
world) teach us that humanity is first and foremost duty of
all human beings. All are equal and all should be treated
equally. Religion is an essential and integral part of human
life. A person may be theist or atheist, but he cannot be
without religion. This is because the religion tells us the
very existence of human life. Indians are very possessive in
the matter of religion. Our religion has, for the time
immemorial, been the perennial source of codes that
govern conduct of the human beings in the society.
Religious doctrines are and were sources of our personal
laws. Therefore, in the matters of our personal laws, we
find our religious beliefs and doctrines.
Before 1955, most of the Hindu laws were in uncodified

form. After independence, one-by-one almost all personal
laws relating to Hindus were codified. However, legislature
adopted a lenient policy for some other personal laws. And
therefore, the attempt to codify Hindu personal laws was
resisted by resorting to judicial remedies. It was alleged
that it is a violation of principles of equality as codification
is taking place only of Hindu laws and some other personal
32
laws are not being codified. However, judiciary justified the
codification by stating that codification of personal laws is a
step towards social reforms; and social reforms can only be
brought about in stages. However, it is another thing that
second step was never taken by the legislature in the
direction of social reform in this regard. Thus, as on today,
almost whole of the Hindu personal law is In codified form.
The child, as mentioned above, has always been a matter of

great concern in personal laws. Therefore, in Hindu
personal laws - codified as well as uncodified - we find
detailed specific provisions pertaining to children in the
matter of adoption, guardianship & custody, maintenance,
marriage etc. Adoption, guardianship & custody,
maintenance, succession, marriage etc. are some of the
important areas where there are specific legal provisions in
codified law. In the present study, the said areas have been
covered; the legal provisions have been examined,
analyzed and wherever necessary, comments have been
made.
2 . 1 Adoptions
Not flesh of my flesh

Nor bone of m y bone.
But stili miraculously
33
My very o w n .
Never forget......
For a single minute;
You didn't grow under
My heart,
..... But in it.
- By Fleur Conklina Heylinger^'^
Science and technology have been proved to be invaluable

gifts to human beings. Scientific and technological
advancement has totally changed the equations of human
life. I t has brought about many substantial changes in the
conventional customs too. They have put some customs
and traditions in a state where such customs and traditions
are In danger of disappearing from the society. Many
practices have been changed with changing time. Practice
of adoption is one of them. Childless people used to take
the child in adoption for various reasons - religious and
secular. But nowadays a new trend is emerging - it is ' t e s t
tube baby' concept. Impotency of one of the parents is no
more a difficult problem of child-wanting couples. Highly
advanced science and technology has answers for every
problem. However, It is an emerging concept and It will take
some time to receive a widespread acceptance. Hence,
adoption practice will survive for few more decades.
'''* http://www.adecinusic.com/Iadybug/cIient/elaine/photos.htni
34
The desire to have a child is innate in all human beings. In
absence of natural offspring from wedlock, people resorted
to other artificial methods to fulfill this desired end^^.
Adoption is the act by which relations of paternity and
affiliation are recognized as legally existing between
persons no so related by nature^^. Thus it is an act by which
one person adopts the child belonging to other as his own.
Adoption is a process whereby a child is transplanted from
the family of its birth to the adoptive family. Adoption
enables a childless to have one. The practice of adoption
has been present from the time immemorial. In Hindus this
practice has been traced since the ancient times. Even in
Hindu mythology the instances of adoption are noted. The
law of adoption is evolved from two texts, one by Manu and
Vasishta and another by Saunaka. Many says, "He whom
his father or mother gives to another as his son, provided
that the donee has no issue, if the boy be of the same
class, and affectionately disposed, is considered as a son
given, the gift being confirmed by pouring water." [Manu,
ix, S.168]^^
'^ Dilip Chand Manooja, Adoption Law and Practice

^^ Clarke, Helen I., Social Legislation, 308 (2""* Edition)
'^ cited by S. Gopalaratnam and R. Srinivasan, Hindu Law, Principles and Precedents, Q*^
Edition
35
As mentioned earlier, the institution of adoption exists in
Hindus since ancient ages. Lil<e other institutions (i.e.
marriage etc.), it has also undergone a substantial change
from time to time, suiting the needs and laws prevailing in
the contemporary societies. The mention of adoption is also
found in Hindu Shastras.
The Hindus have from the very beginning very possessive in

the matter of son. Having male child is a matter of
celebration and honour. The object of adoption in early ages
was religious or spiritual one. Adoption, among Hindus, is a
sacramental act. Adoption is resorted to in Hindus for
following among other reasons :-
(1) It is believed by Hindus that after one's death, his

son can help him get 'moksha' by offering pinda-
dana.
(2) Hindus believe in burning the dead bodies after
death. In most of the Hindus communities,
customarily the eldest one of the deceased puts the
pyre at fire.
(3) For continuance of one's lineage.
For the above reasons, adoption of male child took place in

India in old times. However, adoption of female child did
exist in that era too. In those days, adoption was parent-
36
based. So the primary objective to take a child was for the
benefit of parents and not of the child so adopted. This has
become the main point of difference between adoption in
earlier days and adoption in modern era. In modern era
adoption has become child-centered i.e. for the benefit of
child. That doesn't mean that it has made a vital difference
In the situation or, for that purpose, the adoption is no
more made for the benefit of parents. It is still the object of
the childless couples to have a child adopted for and In their
interest; but while adopting the child, as per modern law
relating to adoption, the benefit of child is required to be
taken into account.
The ancient smriti writers on Hindu law recognized twelve

or thirteen kinds of sons, whom five were adopted sons''^
viz.
1) The son given (Dattaka) - is the son whom his

father and mother gives in adoption;
2) The son made (Kritima) - is the son whom a man
himself makes his son with the adoptee's consent
only;
3) The son bought (Krita) - is the son sold by his
father or mother or either of them.
Dilip Chand Manooja, Adoption Law and Practice
37
4) The deserted son (Apaviddha) - is the son
discarded by his father and mother, is taken in
adoption;
5) The son self-given (Svayamdatta) - is the son who
is deprived of his father and mother by death or
abandoned by them, presents himself saying, "let
me become thy son".
Most of the abovementioned modes of adoption

disappeared by passage of time. Dattaka remained in
practice all throughout and was the only mode which
survived till date.
2.1.1 Statutory provisions relating to Adoptions

THindu Adoption and Maintenance Act, 19561
In personal law of Hindus, 1955 and 1956 were to very

crucial years. These were the years in which almost whole
of the personal laws relating to Hindus were codified one by
one. Law relating to adoptions was one of them. In the year
1956, Hindu Adoptions and Maintenance Act was passed
which came into force on 21^^ December 1956. The Act was
to amend and codify the law relating to adoptions and
maintenance among Hindus. This Act applies to all Hindus -
whether born or converted or reconverted to the Hindu,
Buddhist, Jaina and Sikh religion. However, it does not
38
apply to the members of any Scheduled Tribe within the
meaning of clause (25) of Article 366 of the Constitution
unless Central Government, by notification in the Official
Gazette, otherwise directs'^^. The Act makes it clear that
expression ' H i n d u ' in any portion of this Act shall be
construed as if it included a person who, though not a
Hindu by religion, is, nevertheless, a person to whom this
Act applies by virtue of the provisions contained in this
section^°.
Before this Act, the object of adoption was told fold i.e.
religious and secular. However, the present Act has made
the act of adoption a secular action.
Section 6 of the Act lays down certain requisites of valid

adoption. Accordingly adoption shall be valid if, (1) the
person adopting has the capacity, and also the right, to
take in adoption; (2) the person giving in adoption has the
capacity to do so; (3) the person adopted is capable of
being taken in adoption; and (4) the adoption is made In
compliance with the other conditions mentioned in this
Chapter.
Section 2(2) Hindu Adoptions and Maintenance Act, 1956

*'" Section 2(3) Ibid
39
Any adoption made in violation of any of these conditions
shall be invalid^^. Even the doctrine of factum valet has no
application when adoption is not in consonance with the
provisions of this Act^^. An agreement not to adopt is
opposed to the public policy and not enforceable®^.
However, there can be a valid custom against the right of
adoption but this custom must be strictly proved by the
person alleging it®"^.
Thus the person adopting and person giving in adoption

both must have capacity to do so. Further the person who
is being adopted he must also be capable of being adopted.
Capacity of person taking in adoption has been dealt with

under Sections 7 and 8 of the Act. According to Section 7
any male Hindu who is of sound mind and is not a minor
has the capacity to take a son or a daughter in adoption. If
the male is married then consent of wife is sine qua non. If
he has more than one wives then consent of ail is essential.
However no such consent is necessary if the wife has
completely and finally renounced the world or has ceased to
be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind.
*^ Dhanraj v. Suraj Bai, 1972 Raj LW 612 cited by Diwan Paras, Children And Legal
Protection, l^*E:d-
^^ Lalla Ram v. Gohri Ram, 1972 All WR (HC) 612, ibid.
^^ Gajapathi v. Kunja Bihari, 491.C. 929, ibid
^* Verabhai v. Bai Hirabai, ILR 27 Bom. 492, ibid
40
As per Section 8 even a female can adopt a child if she is of
sound mind and not a minor. A married woman cannot
adopt a child, however a widow or divorcee can. Further a
married woman can adopt a child if her husband has
renounced the world, or has ceased to be Hindu or has
been declared by the court of competent jurisdiction to be
of unsound mind.
Here ' minor' means a person who has not completed his or
her age of eighteen years^^.
The condition that the person taking In adoption must be of

sound mind does not mean that he / she should no suffer
from idiocy or insanity; he must have the capacity to
understand the nature of the act and what would be the
legal effects of adoption. Similarly adopting person need not
possess a very high degree of intelligence^^.
A woman can adopt the child after attaining the age of

eighteen years even if she herself is unmarried. Where after
the adoption, she gets married, her husband would be step-
father and she herself would remain adoptive mother as
earlier. Adoption by an unmarried woman can also take
""* Section 3(c) of Hindu Adoption and Maintenance Act, 1956

^^ Babubarelal v. Gulzari Devi, 1979 All U 1333, cited by Diwan Paras, Children And
Legal Protection, 1st Ed.
41
place despite that fact that she is having an Illegitimate
child®"'. However, a married woman has got no right to take
in adoption during the subsistence of the marriage®^.
Section 9 of the Act talks of person who can give a child in

adoption. As per this section only natural parents or
guardian shall have capacity to give the child In adoption.
When the father Is alive, only he shall have right to give the
child in adoption but that right has to be exercised with the
consent of mother. But where mother has renounced the
world or has ceased to be Hindu or has been declared by a
court of competent jurisdiction to be of unsound mind, no
such consent is necessary^^. The mother may also give the
child in adoption if (1) father is dead or (2) has completely
and finally renounced the world or has ceased to be Hindu
or has been declared a person of unsound mlnd^°.
Sometimes the guardian may give the child In adoption to
any person including to himself, with the permission of the
court if, (1) natural parents are dead or have renounced the
world or (2) natural parents have abandoned the child or
(3) they have been declared persons of unsound m i n d ^ \
Here guardian includes de facto as well as de jure guardian.
However, Section 9(5) provides that before granting
" Ashoka Naidu v. Raymond, AIR 1976 Cal; 272

^^ Dashrath v. Pandu, 1977 Mah. U 358
^^ Section 9(2) of Hindu Adoption and Maintenance Act, 1956
^^ Section 9(3) ibid
^' Section 9(4) ibid
42
permission to a guardian as such, the court shall be
satisfied that the adoption will be for the welfare of the
child, due consideration being for this purpose given to the
wishes of the child having regard to the age and
understanding of the child and that the applicant for
permission has not received or agreed to receive and that
no person has made or given or agreed to make or give to
the applicant any payment or reward in consideration of the
adoption except such as the court may sanction.
It is important to note here that expression 'father' and

' mother' do not include an adoptive father and an adoptive
mother^^.
I t appears from old authorities that court did not recognize

adoption of female child in some cases. For example. In
Ganga Bai V- Anant^^, it was held that an adoption can be
made only of a boy and not a girl. Further in case of
Kusum V. Satya^"^, it was held that the boy should not be
of a different caste. However the Act of 1956 has removed
B\\ such barriers and now both a boy or a g\T\ may be
adopted. Section 10 of the Act, however, is regulatory
which provides for ' w h o may be adopted'. According to this
provision, no person shall be capable of being taken in
^^ Explanation (i) to Section 9

^^ ILR 13 Bom. 690, cited by Diwan Paras, Children And Legal Protection, l«t Ed.
^'*TLR30Cal.999,ibid.
43
adoption unless the following conditions are fulfilled,
namely:
(i) He or she Is a Hindu;
(ii) He or she has not already been adopted;
(iil) He or she has not been married, unless there is
a custom or usage applicable to the parties
which permits persons who are married being
taken in adopt ion;
(iv) He or she has not completed the age of fifteen
years, unless there is a custom or usage
applicable to the parties which permits persons
who have completed the age of fifteen years
being taken in adoption.
Here the first condition is that the child which is being
adopted must be Hindu. The Hindu within the meaning of
this Act includes not only Hindus, but also Jains, Sikhs and
Buddhists. Therefore, all of them can adopt any child
belonging to any of the said religions. For instance, a Hindu
can adopt not only Hindu child but also, Jain, Sikh or
Buddhist child. Further the child should not have been
married but as per Bombay school of adoption, adoption of
even married person is permissible. The upper limit of age
i.e. 15 years of the child is also subject to custom prevailing
to the contrary. Therefore where the custom permits a child
even above the 15 years of age can be adopted. For
instance in Jats of Punjab and Haryana there is custom
44
having legal sanction and judicially recognized where under
the custom permits the adoption of married person^^.
Section 11 of the Act imposed other conditions to be

fulfilled which reads as under:-
"In every adoption, the following conditions must be
complied with:
(i) if the adoption is of a son, the adoptive father or

mother by whom the adoption is made must not
have a Hindu son, son's son or son's son's son
(whether by legitimate blood relationship or by
adoption) living at the time of adoption;
(ii) If the adoption is of a daughter, the adoptive
father or mother by whom the adoption is made
must not have a Hindu daughter or sons
daughter (whether by legitimate blood
relationship or by adoption) living at the time of
adoption;
(iii) If the adoption Is by a male and the person to be
adopted is a female, the adoptive father is at
least twenty-one years older than the person to
be adopted;
^^ Amar Singh v. Tej Ram 1982 (84) Punj LR 2387, cited by Diwan Paras, Children And
Legal Protection, 1st Ed.
45
(iv) If the adoption is by a female and the person to
be adopted is a male, the adoptive mother is at
least twenty-one years older than the person to
be adopted;
(v) The same child may not be adopted
simultaneously by two or more persons;
(vi) The child to be adopted must be actually given
and taken in adoption by the parents or guardian
concerned or under their authority with Intent to
transfer the child from the family of its birth or in
the case of an abandoned child or child whose
parentage is not known, from the place or family
where it has, been brought up to the family of Its
adoption:
Provided that the performance of datta homam

shall not be essential to the validity of adoption."
The main point of difference between old law and new law
is the disparity of age between adoptee and adopted. There
was no such restriction in uncodified law. Further the Act
has simplified the procedure of adoption by dispensing with
the requirement of data homam that was generally insisted
during pre-Act period. The violation of age gap between
adopted and adoptee would render the adoption invalid^^. If
adoptee has already a son he / she cannot further adopt
^ Golak Chandra v. Kritibas. AIR 1979 On. 205
46
another one. But existence of a step-son is no bar to the
right of a Hindu female taking a son in adoption^^.
The effect of adoption has been dealt with under Section 12

of the Act, which reads as under :-
"An adopted child shall be deenned to be the child of his or

her adoptive father or mother for all purposes with effect
from the date of the adoption and from such date all the
ties of the child in the family of his or her birth shall be
deemed to be served and replaced by those created by the
adoption in the adoptive family:
PROVIDED that -
(a) The child cannot marry any person whom he or
she could not have married If he or she had
continued in the family of his or her birth;
(b) Any property which vested In the adopted child
before the adoption shall continue to vest in such
person -subject to the obligations, if any,
attaching to the ownership of such property,
including the obligation to maintain relatives in
the family of his or her birth;
(c) The adopted child shall not divest any person of
any estate, which vested in him or her before
the adoption."
^' Radhakrishnan v. Shyam Sundar, AIR 1964 Ori. 156
47
This section states that an adopted child shall be deemed to
be the child of his or her adoptive father or mother for all
purposes with effect from the date of the adoption and from
such date all the ties of the child in the family of his or her
birth shall be deemed to be served and replaced by those
created by the adoption in the adoptive family. This means
the adopted child become member of the adoptive family
and consequently it becomes entitled to all benefits which
adoptive family is entitled to. Therefore, if a child belonging
to non-Scheduled Caste is adopted by a Scheduled Caste
family, then it will become entitled to all benefits to which
such adoptive family Is entitled to by virtue of their caste^®.
Since adopted child becomes a full fledged member of
adoptive family, an adopted girl becomes entitled to
succeed the property within the meaning of Section 8 of
Hindu Succession Act despite of the fact that the property
was owned by the deceased by reason of his adoption^^. An
adopted child does not divest any person of any estate
vested in him or her before the adoption. Thus in Dinaji v,
Dadde^°°, it was held that by virtue of provisions of Section
14 of Hindu Succession Act, widow becomes an absolute
owner, and the child subsequently adopted by her cannot
divest her of the right which has already vested in her.
^ Khazani Singh v. UOI, 1980 Delhi 60

^^ Neelawwa v. Shivawwa, 1988(2) HLR 799
'"^ AIR 1990 SCI 153
48
The Act further makes it clear that an adoption does not
deprive the adoptive father or mother of the power to
dispose of his or her property by transfer inter vivos or by
wiil^°^. However, this is subject to any contract to contrary.
Where a woman has taicen the child in adoption, she shall

be deemed to be adoptive mother. Where adoption has
been made with the consent of more than one wife, senior
most of them shall be deemed to be adoptive mother and
other/s shall be deemed to be step-mother/s. When a child
Is adopted by a bachelor or widower, he shall be deemed to
be adoptive father and his subsequent wife shall be deemed
to be step-mother. If adoption is made by an unmarried or
a widow her subsequent husband shall be deemed to be
stepfather^°^.
It is further made clear by the Act that a valid adoption

cannot be cancelled subsequently by adoptive family or
even by the adopted child^''^. This provision renders the act
of adoption an irrevocable act. The wish or desire of the
child is immaterial. Even if adopted child wants to renounce
his or her adoptive status and wants to return to the family
of his /her birth, it cannot be done.
'"^ Section 13 of Hindu Adoption and Maintenance Act, 1956

"'^ Section 14 ibid
103
Section 15 ibid
49
Though under the Act, registration of adoption is not
compulsory, stiU any document registered m relat\oi;^ t o
adoption sets up a presumption that the requirements of
this Act have been complied with. However, this
presumption can be rebutted by laying down the necessary
evidences in support thereof.
The law specifically prohibits payment of consideration for

adoption. Section 17 categorically mentions that:-
'XI) No person shall receive or agree to receive any
payment or other reward in consideration of the
adoption of any person, and no person shall
make or give or agree to make or give to any
other person any payment or reward the receipt
of which is prohibited by this section.
(2) If any person contravenes the provisions of
subsection (1), he shall be punishable with
imprisonment, which may extend to six months,
or with fine, or with both-
(3) No prosecution under this section shall be
instituted without the previous of the State
Government or an officer authorised by the State
Government in this behalf."
In spite of above specific prohibition and in spite of the fact

that sale or purchase of infants under the guise of adoption
50
is illegal, immoral and opposed to the public policy, the fact
remains that hundreds of adoptions are made for
consideration. This is because of the poverty and
unemployment. Poor parents sell their children as less as
300 to 500 rupees to some adoption agencies, in turn,
these agencies illegally sale those children, very often, to
foreigners. Obviously, in most of the cases the children fall
in wrong hands and are used for child prostitution and some
similar other exploitative illegal activities. Sub-section (3) of
the Act, further weakens the overall effect of Section 17 by
providing that the prosecutions shall not be initiated save
without prior sanction of the State Government or an officer
authorized by the State Government in this behalf.
Therefore, this provision must be deleted and effect of
Section 17 should be strengthened.
It is submitted that though the law relating the adoption

has been codified to consolidate and amend the law
prevailing before in this regard, the new codified law i.e.
Hindu Adoption and Maintenance Act, is not free from
drawbacks / lacunae- To spell out the few, the Act has not
made the registration of adoption compulsory. Secondly, no
order of the court is necessary to adopt a child. Thus the
supervision of court Is avoided which throws the doors open
for some evil minded persons to take advantage of such
loopholes and make the adoption a profitable business.
51
Thirdly, the Act does not provide for any investigation as to
economic condition and capacity of adoptive family. This
may lead a child to a difficult predicament. Further the Act
is silent on inter-country adoptions. Thus, the Act has, to
some extent, failed to ensure the welfare of the adopted
child.
On the other hand, there are some good points too. The
new Act has, given statutory recognition to adoption of a
female child. Adoption has been recognized purely as a
secular act. Earlier adoption of abandoned, orphaned for
founding child was not recognized. However, modern
codified law allows such adoption, which is again a
noteworthy point.
2.1.2 Uniform Adoption Law :-
In India there is dearth of uniform adoption law. Since India

is a secular State, all subjects are to be treated alike and all
are required to be governed by the same laws. However,
even in secular matters like adoptions, they have miserably
failed to enact a uniform code. An attempt was made in
1972 by presenting Adoption of Children Bill, which
envisaged a uniform secular law of adoption. This bill
provided for adoption of children by any person Irrespective
of religion of the adoptee or adopted. Unfortunately, the
52
same was vehemently resisted by a section of Muslim
community and ultimately Government dropped the bill in
the year 1978. Thus a very important step towards social
reform and welfare child was upturned by some persons
with vested interests. This was another incidence where the
minorities of this so-called secular country refused to accept
and adopt a uniform !aw applicable to all sections of the
society.
The Adoption of Children Bill, 1980 is now pending in

Parliament and if enacted, it will provide a uniform law of
adoption applicable to all communities in India excluding
the Muslim community.
2,1.3 Inter-countrv Adoptions :-
As discussed above, earlier the act of adoption had not only

secular but also religious objectives. With the passage of
time, and with the growing awareness as to the problems of
destitute, neglected, orphaned and founded children, the
NGOs and government started encouraging the adoption to
combat the said problems and for the welfare of child,
adoption came to be considered as an effective mode.
However, with the overall globalization, this act of adopting
children did not remain restricted to particular locality,
region or country. People started adopting children from the
53
countries different from that of adoptees. This inter-country
adoptions created several legal and social problems. This is
because, inter-country adoption may involve trans-racial,
trans-cultural and trans-national aspects, which would not
arise in case of adoption within the country. The
assimilation of the child in the family of the adoptive
parents might be very difficult owing to cultural, racial and /
or linguistic differences. One of most prominent evil of such
inter-country adoption was that, it came to the light that
most of such adoptions are not being made for the welfare
of child and for good motives of adopting parents, but it has
become a trade. In the guise of adoption, trafficking in
children started taking place. It was exposed that unwanted
babies sold to the foreigners under the guise of adoption
are neglected and are not properly taken care of, and in
course of time they become beggars and prostitutes. The
children adopted from India may also be misused for child
prostitution and several such other illegal purposes. At that
t i m e , we did not have any precise and complete guidelines
for such inter-country adoptions. Hindu Adoption and
Maintenance Act is also silent on inter-country adoptions.
These evils were brought to the light by a public spirited
lawyer of Supreme Court Mr. Laxmikant Pandey by way of a
letter addressed to the Hon'ble Supreme Court. Court
treated the letter as a writ petition and the matter was
decided by the court accordingly. As on today, the inter-
54
country adoptions are governed by CARA (Central Adoption
Resource Agency), which has came to be set up as a result
of landmark decision of Hon'ble Supreme Court In a
celebrated case of Laxmikant Pandey v. Union Of
India^°*^. In this case the Court accepted the need of inter-
country adoption by stating that for the welfare of destitute,
neglected, abandoned or founded children, inter-country
adoption is a good remedy. However, at the same time,
taking into account the inherent hazards of such process
and its consequences, Hon'ble Court issued several
guidelines to be observed while adopting any Indian child
by foreign adoptive family. In this matter court observed
that while permitting the inter-country adoptions.
Constitutional mandate for welfare of the child has to be
kept in mind; as also, since there is no codified law as to
adoption, the relevant provisions of Guardianship and
Wards Act are to be applied.
When the child is to be given to a foreign adoptee, then we

need to inquire into the credentials of the adopting family,
because the welfare and security of the child is of prime
Importance. That's why Delhi High Court Rules provide for
the notice to Indian Council of Child Welfare; whereas
Bombay High Court Rules and Gujarat High Court guidelines
'"* 1984(2) s e c 244
55
provide for a notice to the Indian Council of Social
Welfare^^^
In Karnataka State Council for Child Welfare V.

Society of Sisters of Charity George Convent^"^, the
court emphasized that due weightage should be given to
the recommendations made by the Council set up in
pursuance of Apex Court guidelines, though such
recommendations are not final.
Further in Sumanial Chotaial Kamdar V. Miss Asha

Trilolcbhai^"^ Hon'ble Supreme Court observed that in the
matter of inter-country adoptions, any violation or
noncompliance of the guidelines laid down in the case of
Laxmikant Pandey, would render the adoption invalid and
expose the concerned persons to strict action including
prosecution.
2.2 Guardianship and Custody
Children are the most vulnerable group in any population

and in need of the greatest social care. The State has the
duty of according proper care and protection to children at
^^^ Diwan Paras, Children and Legal Protection, pp. 98

'"^ AIR 1994 SC 658
'"''(1995) 3 s e c 700
56
ait times, and it is on their physical and mental well-being
that the future of the nation depends^'^^.
2 . 2 . 1 Guardianship :
Since the children of tender age are most vulnerable, they

are likely to be exploited and therefore they needs to be
taken care of in respect of their person and property, hence
guardian. The law relating to minority and guardianship as
applicable to Hindus was enacted in the year 1956 entitled
as ' Hindu Minority and Guardianship Act, 1956' (hereinafter
referred to as an Act for the sake of brevity and
convenience). Under this Act, ' minor' has been defined as a
person who has not completed the age of eighteen years^°^.
And the term 'guardian' means a person having the care of
the person of a minor or of his property, or of both his
person and property and includes, a natural guardian,
testamentary guardian, guardian appointed by the court
and a person empowered to act as such by or under any
enactment relating to any Court of Wards^^°.
The Act is a small piece of legislation consisting of only 13

sections. This legislation is a specific legislation as
'°^ Cm Prakash v. Child Welfare Board, AIR 1980 Delhi.137 cited in Hindu Law - Principles and
Precedents - by S. Gopalaralnam and R. Srinivasan
'^^ Section 4(a) of Hindu Minority and Guardianship Act, 1956
" " Section 4(b) Ibid
57
applicable only to Hindus (whereas Guardians and Wards
Act, 1890 is a general legislation applicable to all religions).
The word Hindu has been taken in wider sense as it is done
in all other personal codified legislations relating to Hindus,
and thus includes a Buddhist, Jain and Sikh too. Section2
specifically declares that this Act shall be in addition to, and
not, save as expressly provided, in derogation of, the
Guardians and Wards Act, 1890. This Act applies to all
children whether legitimate or illegitimate. Further it applies
to any person who is a convert or re-convert to the Hindu,
Buddhist, Jalna or Sikh religion.
As per Section 6 of the Act, in case of boy or an unmarried

girl - the father and in his absence, the mother shall be the
natural guardian. However, in case of an illegitimate boy or
an illegitimate unmarried girl, the mother and after her, the
father shall be the natural guardian. Husband shall be the
natural guardian of his minor wife. Present section gives a
special right to the mother to have the custody of the
person of the minor under the age of five years. The section
has so narrowly interpreted by the courts that even if the
father neglects to look after, or to discharge his obligations
towards the minor or refuses to do so as natural guardian
still the mother cannot act as natural guardian so long as
he is alive^^^. The natural guardian ceases to be so only
''' Sundara Murthy v. Shanmuga Nadar AIR 1980 Mad. 207
58
under the two grounds mentioned in the proviso of this
section^^^.
The proviso to Section 6 declares that "no person shall be

entitled to act as the natural guardian of a minor under the
provisions of this sectlon-
(a) If he has ceased to be a Hindu, or
(b) If he has completely and finally renounced the world
by becoming a hermit (vanaprastha) or an ascetic
(yati or sanyasi)."
However, Hon'ble Supreme Court, In a very landmark case

before it, where father and mother were living separately
and the minor daughter was under the care and protection
of her mother, rightly held that the mother should be
considered as the natural guardian of the minor girl^^^.
Thus, the father's monopolized right to act as natural
guardian as been watered down by judicial decisions read
with Section 13 of the Act which states that the welfare of
the minor is of paramount consideration in the matter of
guardianship. Thus the guardianship and custody may not
go hand-in-hand.
"^ Michayel Nadar v. Sreedharan Babu 1992(2) HLR 17 (Ker)

"^ Jijabai v. Pathankhan AIR 1971 SC 315
59
Further, step-father and step-mother are not entitled to act
as natural guardian, unless they have been appointed as
such by the court.
Section 7 provides that the natural guardianship of an

adopted son who is a minor passes, on adoption, to the
adoptive father and after him to the adoptive mother. It
goes without say that such adoption should be valid
adoption as per the provisions of Hindu adoption and
Maintenance Act, 1956.
Section 8 of the Act provides for the powers of natural

guardians. Sub-section (1) of Section 8 empower natural
guardian to do all acts which are necessary or reasonable
and proper for the benefit of the minor or for the
realization, protection or benefit of the minor's estate.
However, guardian in no case, can bind the minor by a
personal covenant. Sub-section (2) imposes restrictions on
the power of natural guardian to deal with the minor's
estate. Any act in contravention of Section 8(1) and (2)
shall be viodable at the instance of minor. However, such
restricted acts can be done by the guardian with the prior
permission of the court in case of necessity for the evident
advantage to the minor. For obtaining such permission of
the court, the provisions of Guardians and Wards Act, 1890
shall apply. However, in view of Section 12 and the relevant
60
judicial decisions^^"^ no guardian can be appointed for the
undivided interest of the minor in joint family property
unless the minor is the sole surviving coparcener or unless
all coparceners are minors.
Section 9 deals with testamentary guardians and their

powers. Testamentary guardian is a guardian appointed by
the will of the minor's father or mc?ther. The father may, by
will, appoint any person to act as guardian of his minor
child's person or property. However, if father predeceases
the mother, such appointment shall have no effect. But
such appointment may revive if the mother dies without
appointing, by will, any person aS guardian. This right to
appoint guardian has also been given to mother / a widow
when she Is entitled to act as natural guardian of the minor.
The testamentary guardian may also be appointed by a
mother of an illegitimate child provided she is entitled to act
as a natural guardian. Such testamentary guardian shall act
as natural guardian after the death of minor's mother and
father. The right of the testamentary guardian to act as
guardian shall, where the minor is a girl, cease on her
marriage. This is because upon such minor girl's marriage,
her husband shall act as a natural guardian.
Krishnakant, In re AIR 961 Guj. 68
61
However, Section 10 makes it clear that a minor shall be
incompetent to act as guardian of the property of any
minor.
The Act does not recognize the concept of de facto

guardian. Section 11 specifically mentions that no person
shall be entitled to dispose of, or deal with, the property of
a Hindu minor merely on the ground of his or her being the
de facto guardian of the minor. The de facto guardian here
means a person who acts as a giJardlan of the minor but
who is neither a natural or testamentary guardian nor is he
a guardian appointed by the court.
Section 13 of the Act reflects the niodern concept of welfare

of the child. It reads as under :-
"(1) In the appointment or declaration of any person
as guardian of a Hindu minors by a Court, the
welfare of the minor shall be the paramount
consideration
(2) No person shall be entitled to the guardianship
by virtue of the provisions of this Act or of any
law relating to guardianship in marriage among
Hindus, if the Court is pf opinion that his or her
guardianship will not be for the welfare of the
minor."
62
2.2-2 Custody of Children :
In most of the cases, dissolution of unfruitful marriage is

not an end In Itself. Such marriage, even after dissolution,
leaves back many complicated and technical problems to be
solved through intervention of courts. Maintenance and
Custody of children are two major post-dissolution
problems. When a marriage breaks, the off-springs of such
marriage are the most vulnerable victims. The question of
custody of a child arises when the parents are divorced or
separated. The child in question has no say in the decision
of court. It becomes just a mute spectator when somebody
else is deciding its fate.
However, now-a-days there has been growing awareness

for the protection of interests of children in different areas.
While determining the question relating to custody of a
minor child, courts tend to attach more importance to the
interest and welfare of the minor rather than deciding the
matter on the considerations of legal rights of the
parties^^^. The consideration of welfare of child is
paramount that court may even refuse the custody of child
to the father and the same may be given to the maternal
uncle in a proper case^^^. Section 13 of Hindu Minority and
"^ Elizabeth Dinshaw v. Arvind M. Dinshaw (1987) 1 SCC 42

Kirti Kumar Mahashankar Joshi v. Pradip Kumar KarunashankarJoshi, AIR 1992 SC 1447
63
Guardianship Act also specifically provides that the welfare
of the child is of paramount consideration.
The law recognizes that an infant in its early age is at more

ease with its mother. Therefore, as per Hindu Minority &
Guardianship Act, 1956, though father shall be the natural
guardian of a child still if the child has not completed the
age of five years, the custody of such child shall ordinarily
be with its mother^^''. Delhi High Court, in Chandra Prabha
V- Prem Nath^'^ rightly observed that, " the child
under five years of age, in our opinion needs most the
tender affection, the caressing hand and the company of his
natural mother and neither the father nor his female
relations, however close, well-meaning and affectionate
towards the minor, can appropriately serve as proper
substitute for the minor's natural mother." Similar view was
taken by the court in Radha Bai V- Surrindra K>
Mudaiiar^^^ and Ghushi V. Ilama^^°, Giving judicial
recognition to mother's natural love and affection for her
children. Das J. of Culcutta High Court^^S observed that " I
have no doubt in my mind that the mother's lap is God's
own cradle, for a child of this age; and that as between
" ' s e e Section 6'of Hindu Minority and Guardianship Act, 1956
"^ AIR 1969 Del 283
'^ÂIRI971Mys.69
'^^ AIR 1972 Raj. 256
^^' InreKamatRudra,ILR(1949)2Cal. 374
64
father and mother, other things being equal, a child of such
tender age should rennain with the nnother."
However, it is not correct to say that in all cases, a child

below the age of five has to be put in its mother's custody.
At the same time it is also not correct to infer that in all
cases, where child has completed the age of five years
should be, father shall be entitled to the custody. Rather
even matter has to be decided on its merit and taking into
account the whole case.
Section 26 of the Hindu Marriage Act and Section 38 of the

Special Marriage Act, 1954, which deal with the custody,
maintenance and education of children, provide that wishes
of the children are to be considered in deciding the matter.
Whereas; Section 49 of Parsi Marriage and Divorce Act,
1936, which deals with the same thing, does not contain
any such specific provision to consider the wish of the child.
However, in this case too, while deciding the matter courts
do consider the wish of the child depending upon their
intelligence to express themselves. As mentioned above,
the welfare of the child shall be of paramount consideration
in deciding the question pertaining to custody of a child.
English law more clearly spells It out in Section 1 of
Guardianship of Minors Act, 1971. English judicial approach
65
in this matter becomes more clear from the words of Lindly,
"The dominant matter for consideration of the court is

the welfare of the child. But the welfare of the child is
not to be measured by money only nor by physical
comforts only. The moral and religious welfare of the
child must be considered as its physical well being.
Nor can the ties of affection be disregarded."
Similar view was taken by the Indian court^^^ (Delhi High

Court) and observed that " I t may also be borne in mind
that physical needs and comforts alone are not enough for
the proper healthy developed of a human child."
In Mukesh Kumar V. Kamini, mother was living in a

hostel. Children were attending school and being looked
after by their grand-parents and the father. It was shown
that grand-parents and father were able to provide for
education of the children. Therefore, in the interest of
children and their education. It was held that father was
entitled to the custody and mother's claim of custody was
turned down.
In re Mc Grath,(1893)l Ch.786, Paras Diwan,ChiIdren And Legal Protection,r' Ed.

^^^ Chandra Prabha v. Prem Nalh, AIR 1969 Del. 283
66
Since custody of the child Is a very sensitive area where
future of the child is at stake, it is always advisable to conrê
to some amicable soiution by both the parties. In such a
case, even though parents have separated, the child is not
deprived of the love and affection of both the parents
though they are living separate. For instance, in a landmark
case of Smt. Pamela v. Son. Ldr. Deepak Dutta and
others^^'*, Hon'ble Supreme Court expressed its view that
in the interest of the child, it should not immediately be
removed from the company of the mother. It was also
agreed by the parties that the child should go to its
grandparents at Intervals i.e. during vacation period. The
court admired the reciprocity shown by the parties to the
litigation.
Thus, generally in the matters of custody, Indian courts

have consistently observed that as far as possible, the
custody of young children should be left with the mother.
Sometimes, sex and age of the children also plays
significant role in deciding the custody. However, in every
case, welfare of the child shall be a paramount
consideration.
^^^ (1989) Supp(l) s e c 376
67
2.3 Maintenance
In Hindu shastras fours ashrams have been discussed.
These are four stages of human life. They are, (1)
brahmacharyasharam (2) gruha'sthashram (3)
vanprasthashram and (4) sanyasashram. During
brahamacharyashram, one is to remain virgin, concentrate
on his education and make himself a skilied, educated
person. Then comes second stage, when one is expected to
marry a woman, procreate the children and discharge his
pious duties towards his family. Third stage is
vanprasthashram. In this stage one has to discharge his
obligations (kartavya) towards his children and
grandchildren. Last stage of human life is sanyasahram.
This stage is late evening of human life. During this stage
one has to keep himself completely aloof of all domestic
and matrimonial diversities. During this stage he has to
discharge his duties towards himself i.e. he has to absorb
himself in worshiping the God for moksha.
Now the time has changed; life expectancy has also

considerably reduced, and so It may be very difficult to live
as mentioned above. However, since the vedic period, some
sanatan things have been believed religious by all Hindus
even till today. One of such well settled doctrine is pious
obligation of every Hindu man to maintain his aged parents.
68
his wife, his minor sons - whether legitimate or Illegitimate
and his unmarried daughters.
Thus children, per Hindu law, have a statutory right to claim

maintenance from their parents. After 1955, when almost
all personal laws relating to Hindus were codified, this right
of children to maintenance was also given statutory
recognition. Unfortunately, the provisions are scattered and
therefore in following paragraphs, an attempt has been
made to bring all those provisions, which give right to a
child ^ legitimate or illegitimate - to claim maintenance
from its mother or father.
2 . 3 . 1 Provisions under Hindu Adoption and

Maintenance Act
20. Maintenance of cliiidren and aged parents. -
(1) Subject to the provisions of this section a Hindu
is bound, during his or her lifetime, to maintain
his or her legitimate or illegitimate children and
his or her aged or infirm parents.
(2) A legitimate or Illegitimate child may claim
maintenance from his or her father or mother so
long as the child is a minor.
(3) The obligation of a person to maintain his or her
aged or infirm parent or a daughter who is
unmarried extends in so far as the parent or the
69
unmarried daughter, as the case may be, is
unable to maintain himself or herself out of his
or her own earnings or other property.
Explanation. - I n this section ''parent" includes a childless
step-mother.
21. Dependents defined. - For the purposes of this

Chapter "dependents" mean the following relatives of
the deceased:
(i) His or her father;
(ii) His or her mother;
(iii) His widow, so long as she does not re-marry;
(iv) His or her son or the son of his predeceased son
or the son of a predeceased son of his
predeceased son, so long as he is a minor;
provided and to the extent that he is unable to
obtain maintenance, in the case of a grandson
from his father's or mother's estate, and in the
case of a great grandson, front the estate of his
father or mother or father's father or father's
mother;
(v) His or her unmarried daughter, or the unmarried
daughter of Ws predeceased son or the
unmarried daughter of a predeceased son of his
predeceased soil., so long as she remains
unmarried: provided and to the extent that she
70
is unable to obtain maintenance, in tlie case of a
grand-daughter from her father's or mother's
estate and in the case of a great-grand-daughter
from the estate of her father or mother or
father's father or father's mother;
(vi) His widowed daughter: provided and to the
extent that she is unable to obtain malntenance-
(a) From the estate of her husband, or
(b) From her son or daughter in any, or
his or her estate; or
(c) From her father-in-law or his father or
the estate of either of t h e m ;
(vii) Any widow of his son or of a son of his
predeceased soil, so long as she does not
remarry: provided and to the extent that she is
unable to obtain maintenance from her
husband's estate, or from her son or daughter, if
any, or his or her estate, or in the case of a
grandson's widow, also from her father-in-law's
estate;
(viii)Hls or her minor illegitimate son, so long as he
remains a minor;
(ix) His or her illegitimate daughter, so long as she
remains unmarried.
71
22. Maintenance of dependents. -
(1) Subject to the provisions of subsection (2) the
heirs of a deceased Hindu are bound to maintain
the dependents of the deceased out of the estate
inherited by them from the deceased.
(2) Where a dependent has not obtained, by
testamentary or intestate-success ion, any share
in the estate of a Hindu dying after the
commencement of this Act, the dependent shall
be entitled, subject to the provisions of this Act,
to maintenance from those who take the estate.
(3) The liability of each of the persons who takes the
estate shall be in proportion to the value of the
share or part of the estate taken by him or
(4) Notwithstanding anything contained in sub-
section (2) or sub-section (3), no person who is
himself or herself a dependent shall be liable to
contribute to the maintenance of others, if he or
she has obtained a share or part, the value of
which is, or would, if the liability to contribute
were enforced, become less than what would be
awarded to him or her by way of maintenance
under this Act.
23. Amount of maintenance. -
(1) It shall he in the discretion of the Court to
determine whether any, and if so what.
72
maintenance shall be awarded under the
provisions of this Act, and in doing so, the court
shall have due regard to the considerations set
out in sub-section (2), or sub-section (3), as the
case may be, so far as they a-re applicable.
(2) In determining the amount of maintenance, If
any, to be awarded to a wife, children or aged or
infirm parents under this Act, regard shall be had
to-
(a) The position and status of the parties;
(b) The reasonable wants of the claimant;
(c) If the claimant is living separately, whether
the claimant is justified in doing so;
(d) The value of the claimant's property and
any income derived from such property, or
from the claimant's own earnings or from
any other source;
(e) The number of persons entitled to
maintenance under this Act.
(3) In determining the amount of maintenance, if
any, to be awarded to a dependent under this
Act, regard shall be had to-
(a) The net value of the estate of the deceased
after providing for the payment of his
debts;
73
(b) The provision, if any, made under a will of
tiie deceased in respect of the dependant;
(c) The degree of relationship between the
two;
(d) The reasonable wants of the dependent;
(e) The past relations between the dependent
and the deceased;
(f) The value of the property of the dependent
and any income derived from such
property, or from his or her earnings or
from any other source;
(g) The number of dependents entitled to
24. Claimant to maintenance sliould be a Hindu. -No
person shall be entitled to claim maintenance under
this Chapter if he or she has ceased to be a Hindu by
conversion to another religion.
25. Amount of maintenance may be altered on

change of circumstances. - The amount of
maintenance, whether fixed by a decree of court or by
agreement, either before or after the commencement
of this Act, may be altered subsequently if there is a
material change in the circumstances justifying such
alteration.
74
26. Debts to have priority. - Subject to the provisions
contained in Section 27 debts of every description
contracted or payable by the deceased shall have
priority over the cteims of his dependents for
27. Maintenance w i i e n to be a cliarge. -A dependant's

claim for maintenance under this Act shall not be a
charge on the estate of the deceased or any portion
thereof, unless one has been created by the will of the
deceased, by a decree of court, by agreement
between the dependent and the owner of the estate or
portion, or otherwise.
28. Effect of transfer of property on riglit to

maintenance. -Where a dependent has a right to
receive maintenance out of an estate, and such estate
or any part thereof is transferred, the right to receive
maintenance may be enforced against the transferee if
the transferee has notice of the right or if the transfer
Is gratuitous; but not against the transferee for
consideration and without notice o f the right.
75
2-3-2 Maintenance : The Hindu Marriage Act- 1 9 5 5
In any proceeding under this Act, the court may, from time
to time, pass such interim orders and mal<e such provisions
in the decree as it may deem just and proper with respect
to the custody, maintenance and education of minor
children, consistently with their wishes, wherever possible,
and may, after the decree, upon application by petition for
the purpose, make from time to time, all such orders and
provisions with respect to the custody, maintenance and
education of such children as might have been made by
such decree or interim orders in case the proceeding for
obtaining such decree were still pending, and the court may
also from time to time revoke, suspend or vary any such
orders and provisions previously made^^^.
2.3.3 Maintenance : The Code of Criminal

Procedure, 1 9 0 8
Besides above provisions, section 125 of Criminal Procedure
Code makes a secular provision for maintenance of children
by their fathers. Under Section 125 of Cr.P.C, the
maintenance of the children is obligatory on the father
(irrespective of his religion) and so long as he is in a
position to do so and the children have no independent
means of their own, it remains his absolute obligation to
provide for them. It would be unreasonable, unfair,
^^^ Section 26 ofThe Hindu Marriage Act, 1955
76
inequitable and even preposterous to deny the benefit of
Section 125 of CrPC to the children only on the ground that
they are born of Muslim parents. The effect of beneficial
legislation like Section 125 CrPC cannot be allowed to be
defeated except through clear provisions of a statute. A
Muslim father's obligation, like that of a Hindu father, to
maintain his minor children as contained in Section 125
CrPC is absolute. Indeed a Muslim father can claim custody
of the children born through the divorced wife to fulfill his
obligation to maintain them and if he succeeds, he need not
suffer an order or direction under Section 125 but where
such custody has not been claimed by him, he cannot
refuse and neglect to maintain his minor children on the
ground that he has divorced their mother. The right of the
children to claim maintenance under Section 125 is
separate, distinct and independent of the right of their
divorcee mother to claim maintenance for herself for
maintaining the infant children up to the age of 2 years
from the date of birth of the child concerned In case of

female children his obligation extends till their marriage.
Apart from the statutory provisions referred to above, even
under the Muslim Personal Law, the right of minor children
to receive maintenance from their father, till they are able
to maintain themselves, Is absolute."^^^
'^^ Noor Saba Khatoon v. Mohd. Quasim, 1997(7) SCC 675
77
In Dwarika Prasad Satpathy V. Bidyut Prava Dixit and
otliers^^^, it was observed that, "This provision (Section
125 Cr.P.C.) is a measure of social justice and specially
enacted to protect women and children and falls within the
constitutional sweep of Article 15(3) reinforced by Article
39. We have no doubt that sections of statutes calling for
construction by courts are not petrified print but vibrant
words with social functions to fulfill the brooding presence
of the constitutional empathy for the weaker sections like
women and children must inform interpretation if it has to
have social relevance. So viewed, it is possible to be
selective in picking out that interpretation out of two
alternatives which advance the cause - the cause of the
derelicts."
Under section 125 of The Code of Criminal Procedure, girl

child is entitled to maintenance only till she attains the
majority. Father's liability after her attaining majority ends
under this section. However, in Noor Saba Khatoon V.
Moiid. Quasim^^^, the court read Section 125 of CrPC
along with Section 3 ( l ) ( b ) and giving combined effect of
both these provisions, held that father's liability to maintain
his girl child extends beyond its age of majority till such
daughter is married. The same rationale was applied by the
12^ 1999 (7) s e c 675 court referred Ramesh Chander Kaushal v. Veena Kausha!
^^Îbid
78
court in case of Jagdish Jugtawat v. Manju Lata and
others^^^. Hon'ble Supreme Court reiterated that under
Section 125 CrPC fattier is liable only up to the age of
majority, but if Section 20(3) of Hindu Adoption and
Maintenance Act is read with this provision then giving
combined effect to both these provisions, the daughter
becomes entitled to maintenance up to the date of her
marriage, even though it extends beyond the date of her
majority.
Even in respect of S.20(3) of Hindu Adoption and

iâintenance Act, 1956, it has been held that father's
obligation to maintain his children a statutory liability and
the child has a right to claim maintenance from the
father^^°. However, father's obligation to maintain his
daughter discontinues after marriage, as after marriage it
becomes her husband's obligation to maintain her.
2-4 Child Marriage

Unlike a Muslim marriage, Hindu marriage Is not merely a
contract but it Is a sacrament. Hindu marriage contemplates
the union of not only two human bodies of opposite sexes
but also two souls. Hindu marriages are governed by the
Hindu Marriage Act, 1955. This Act contains complete
^^' 2002(5) s e c 422

'•''" Thulasikumar v. Raghvan, AIR 1985 Ker. 20
79
provisions relating to Hindu marriages. It also lays down
certain essential conditions for solemnization of Hindu
marriage. One of the conditions of valid marriage is, the
bridegroom has completed the age of twenty-one years and
the bride, the age of eighteen years at the time of the
marriage^^^ Section 18 of Hindu Marriage Act, 1955 further
provides that every person who procures a marriage of
himself or herself to be solemnized under this Act in
contravention of the conditions specified in clauses (iii) of
section 5 shall be punishable with simple imprisonment
which may extend to fifteen days, or with fine which may
extend to one thousand rupees, or with both.
Section 5(iii) of the Act was amended to bring it in line with

Child Marriage Restraint (Amendment) Act, 1978. Thus,
Section 18 read with Section 5, renders the child marriage a
punishable offence.
However, though Section 5(iii) lays down that it is one of

the essential condition that that bridegroom must have
completed 21 years of his age and bride must have
completed 18 years of her age, the marriage solemnized in
violation of this condition is not rendered void. If any
marriage is solemnized in consequence of this condition,
there shall follow only two effects, viz.
'^' S. 5(iii) of Hindu Marriage Act, 1955
80
(i) concerned person shall be liable to be punished as
per S. 18 of this Act, and
(ii) Such minor wife may also present a petition for the
dissolution of her marriage by a decree of divorce
u/s 13(2)(iv) on the ground that her marriage
(whether consummated or not) was solemnized
before she attained the age of fifteen years and she
has repudiated the marriage after attaining that
age but before attaining the age of eighteen years.
No other effect would follow in such a case where a

marriage has been solemnized in contravention of the said
provisions. The marriage is not void. Such marriage shall be
a nullity and It would, otherwise be a perfectly valid and
enforceable marriage for all purposes.
2 . 4 . 1 Child Marriage Restraint Act, 1 9 2 9 1 3 2
i t appears that the purpose of the Act is to prevent the

child marriage and not to prohibit it^^^. The Act defines
"Child marriage" as a marriage to which either of the
contracting parties is a child^^"^. "Child" means a person
'^^ This Act was came into effect on I'^' October 1929 with an object to restrain solemnization of
child marriages. It was further amended in the year 1978 vide Act n .
'^^ Modem Hindu Law, Paras Diwan,13'^ Ed. 2000, pp. 98
^^* Section 2(b) of The Child Marriage Restraint Act, 1929
81
who, if a male, has not completed twenty one years of age,
and If a female, has not completed eighteen years of age^^^.
The Act contains various penal provisions if the marriage is

solemnized in contravention of this Act. As per Section 3, if
a male above eighteen years of age and below twenty-one,
contracts a child marriage, he shall be punishable with
simple imprisonment which may extend to fifteen days, or
with fine which may extend to one thousand rupees, or with
both. As per Section 4 , if a male above twenty-one years of
age, contracts a child marriage, he shall be punishable with
simple imprisonment which may extend to three months
and shall also be liable to fine. The Act also makes parents,
purohit or any other person who is instrumental in causing
such marriage to take place, liable for the prescribed
punishment or fine or both.
One of the important feature of the Act is that it provides

for injunction to restrain child marriage. Section 12
provides that the Court may, if satisfied from information
laid before it through a complaint or otherwise that a child
marriage In contravention of this Act has been arranged or
is about to be solemnized, issue an injunction against any
of the persons mentioned in Sections 3, 4 , 5 and 6 of this
Act prohibiting such marriage. However, before issuing such
' " Section 2(a) ibid
82
injunction against any person, he shall be given opportunity
to be heard. Any person who disobeys such injunction shall
be punished with imprisonment of either description for a
term which may extend to three months, or with fine which
may extend to one thousand rupees, or with both.
Very recently a Division Bench of Delhi High Court

pronounced a judgement^^^ in which It was held that a
marriage of a girl above 15 years of age is a valid marriage.
This judgement created a lot of controversy and many
women's organizations protested against this judgement. I t
was argued by many social workers that this judgement is
likely to encourage like marriages. It was observed by Ms.
Ila Pathak, a social activitist of Ahmedabad city, in her write
up^^^ that Delhi High Court has taken a view which is
exactly opposite to Child Marriage Restraint Act and the
provision relating to rape in Indian penal Code. Ms. Nafisa
All, a social activist and President of Children Film Society,
observed in her write-up that if on the basis of the said
judgement if the minimum prescribed age of a giri for
marriage is reduced then it will adversely affect the
interests of such giris. It was further stated by her that at
such tender age children are physically and emotionally
immature and they are unable to take right decisions
'^'^ News published in Divya Bhaskar, Vadodara Edition, V"' Oct. 2005
' " Divya Bhaskar, Vadodara Edition, 10* Oct. 2005
83
affecting their interests. I t is, tlierefore, improper to burden
thenn with further with responsibility of married life.
It is submitted that these social activists are true to some

extent, as a child marriage is looked upon as a social evil In
every civilized society. However, in criticizing the
judgement delivered by Delhi High Court, it appears that
these social workers have not properiy appreciated the legal
provisions and present position of law in respect of child
marriages. It the outset, as discussed in preceding
paragraphs, there is no provision in either Hindu Marriage
Act or Child Marriage Restraint Act, which renders the child
marriage. Further, Courts have, from time to time, made it
very clear that marriage solemnized in violation of condition
as to age limit is not void.
It is further made clear here that where at the time of

marriage, a bride has not completed the age of 15 years
and after attaining age of 15 and before attaining age of
18, if she has repudiated that marriage then she can ask for
divorce. This means that marriage of a giri when takes
place before her attaining the age of 15 is viodable and
after that age is a perfectly valid marriage.
However, it may be made clear here that a child marriage

under Special Marriage Act is void ab initio.
84
The above position of law is perhaps because of the reason
that in India due to custom and on account of some other
socio-economic reasons, thousands of child marriages do
take place in rural areas. If as contended by our social
activists, if such marriages are declared void, then it would
bring disastrous effects. To state the few, if a child
marriage is declared void, thousands of marriages would
become null and void overnight. The girls who are party to
such marriages would lose their status as a legally wedded
wife and simultaneously lose all statutory rights of
maintenance etc. This will more adversely affect the
interests of such minor wives. Our lawmakers and judiciary
is very well aware of this fact, and therefore law does not
treat a child marriage to be a void marriage.
The above referred judgement delivered by Hon'ble High

Court of Delhi can be divided into two parts viz. first part
declares that a child marriage is a valid marriage. This is
not a novel concept in Hindu law in light of above
discussion. Second part of the judgement Is also equally
important. Hon'ble Court rightly held that in case of a child
marriage, such minor wife cannot be forcibly taken away
from the lawful custody of her husband and sent to Nan
Niketan against her will. I t appears that this is very novel
and legally perfect view. The reason is that in most of such
85
cases of child marriage, parents of tine giri lodge a
complaint of kidnapping or abduction against the
bridegroom. The poor girl, against her will, is sent to Nari
Niketan and criminal proceedings are initiated against her
husband. It does not properly fit in legal framework. I t may
be remembered here that Art. 21 of Indian Constitution
(which is a fundamental right of every person) states that
"no person shall be deprived of his life and personal liberty
except accordingly to procedure established by law". Art. 21
is not only available to adults but this fundamental right is
conferred on even a child in womb. Therefore, how come
that we deny this right to minors. When a minor girl Is
removed to such Nari Niketan against her will, it is clear-cut
violation of Article 21 of the Indian Constitution.
It may further be kept in mind here that as per Hindu Law,

a father is a natural guardian of his minor children.
However, husband shall be a natural guardian of his minor
wife^^^. Even Section 19 of Guardians and Wards Act, 1890
lays down that court cannot appoint a guardian of a minor
wife whose husband is not unflt^^^. When law recognizes
that a husband is a natural guardian of his minor wife, then
the proposition follows that he is lawfully entitled to the
custody of his minor wife. And if any person disturbs his
'^^ Paras Diwan, Modern Hindu Law, IS"* Ed. 2000, pp. 221
\Vi
Ibid
86
lawful right to custody of his minor wife, then it would
amount to be a legal wrong. Perhaps looking to this legal
position, Delhi High Court rightly held that a wife, in case of
child marriage, such minor wife cannot be forcibly sent to
Nan Niketan.
In view of above discussion, it may be concluded that child

marriage is a social problem and cannot be solved by
imposing prohibitory legislations. The solution lies in giving
proper education to the parents as to this evil, sensitizing
the issue by wide-spread social movements and creating
overall social awareness among the people as to hazards of
this social evil.
87
Chapter - 3
•
C I V I L LAWS
3 . 1 Position of Child In various Contractual

Obligations
3.1.1 Contracts entered into for the benefit of minor
3.1.2 Ratification on attaining majority
3.1.3 Contracts entered into for necessities of a minor
3.1.4 Position of child in contracts of marriage
3.1.5 Position of child under a contract of
apprenticeship
3.1.6 Position of child under partnership contracts
3.1.7 Position of minor under contracts relating to
immovable properties
3.2 Position of child in Torts

3.2.1 Rights of child against pre-natal injuries
3.2.2 Child's right of action against parents or persons
with quasi-parental authority
3.2.3 Vicarious liability of parents and guardians
3.2.4 Child's right to reputation
3.2.5 Protection against nuisance
3.2.6 Negligence of persons with quasi-parental
authority
3.2.7 Doctrine of contributory negligence vis-a-vis
children
3.2.8 Dangerous premises or structures
3.3 Provisions relating to child under Code of

Civil Procedure, 1 9 0 8
3.3.1 Who is minor?
3.3.2 Suits by minor
3.3.3 Fraud or negligence on the part of next friend
3.3.4 Retirement of next friend
3.3.5 Course to be followed when minor becomes major
88
Chapter - 3
C I V I L LAWS
The best and most beautiful things in the world

cannot be seen or even touched. They must be felt
with the heart,
Helen Keller
Childhood is that phase of human life, the memories of

which remains on one's mind probably throughout his life.
Whatever a child gets he gives to the society when he
grows up. I t is therefore very important what a child gets,
receives, feels, encounters, comes across and so o n , during
early years of his life. These experiences have a far-
reaching impact. The impact that is capable of making a
child a civilized adult citizen, and in some cases uncivilized
too.
During Infancy, a child is physically and psychologically

immature to take important decisions that are going to
have effect on his Interests. This fact Is recognized even by
89
the Convention on the Rights of the Child, 1989 in its
preamble in the following words;
Bearing in mind that, as indicated in the Declaration of

the Rights of the Child, "the child, by reason of his
physical and mental immaturity, needs special
safeguards and care, including appropriate legal
protection, before as well as after birth".
That is why the child's parents take most of the decisions,

during its infancy. These decisions include entering Into
contracts for and on behalf of a child. These decisions may
also sometimes include giving a child in adopted,
employment contract and so on. While examining the
position of child in civil laws, one needs to examine the
legal provisions pertaining to child in laws relating to
general and specific contracts, labour laws, personal laws
and law of torts as well.
In the present research an attempt has been made to cover

almost all areas in civil laws where there are specific
provisions pertaining to children. The study of these civil
laws has been divided into appropriate headings for the
sake of brevity and convenience.
90
3-1 Position of child in various Contractual
Obligations
In India, the general principles of law relating to contracts

are contained in Indian Contract Act, 1872. Generally
speaking, a contract is voluntarily created civil obligation
(though Indian Contract Act does not deal with the whole
law of civil obligations). A contract connes into existence out
of the will of the contracting parties. Perhaps for this reason
only, the Indian Contract Act, 1872 is merely a regulating
Act. The Act, however, defines what is contract. But the
definition is too general to make out any exact meaning of
contract and leaves a wide scope to include every
agreement that is enforceable by law. Thus, as per the said
Act, an agreement enforceable by law Is a contract [Section
2(h)]. Therefore, to make a contract two things are
essential, namely, an agreement and the enforceability of
that agreement in law. Thus, the formula comes to -
Contract = agreement + enforceability. In Section 2(e) the
Act defines an agreement as ''every promise and every set
of promises forming the consideration for each other". The
agreement comes into existence by process of offer and
acceptance thereof.
91
Once the agreement is arrived at, to ascertain whether it is
a contract or not, it has to stand the test of enforceability.
Here comes Section 10 of the Act in picture. Section 10
clarifies what agreements are contracts. The first para of
Section 10 (which is more relevant here) has been
reproduced hereunder;
Section 10 : "All agreements are contracts if they are made

by the free consent of parties competent to contract, for a
lawful consideration and with a lawful object, and are not
hereby expressly declared to be void."
Thus, competency of parties is one of the essential

ingredients of a valid contract. Then the question arises,
who is competent to contract? And the answer is to be
found in Section 11 of Indian Contract Act, 1872.
Accordingly, "Every person is competent to contract who is
of the age of majority according to law to which he Is
subject, and who is of sound mind, and is not disqualified
from contracting by any law to which he is subject".
Indian Contract Act does not provide for the age of

majority. As per Section 3 of Indian Majority Act, 1875, a
minor is a person who has not completed his eighteen years
of age. However, where a guardian of minor's person or
property (or both) is appointed or where a minor's property
92
is taken over by a Court of Wards, the minor attains
majority after completion of Inis age of twenty-one years. It
is pertinent to note here that the age of majority is
determined according to the law to which he is subject.
Thus, generally a minor attains majority on attaining his
age of 18 years, but in above said two cases he attains
majority after attaining his age of 21 years. Similarly,
wherever there is a specific provision in any law providing
for the age limit, then the majority will be determined as
per that particular provision in that particular case.
Thus, a minor is not competent to contract. Then the

question arises what will be the legal provision / status of
an agreement entered by or with a minor. The question
leads back to 1903 when Privy Council decided the case of
Mohoriblbl V. Dharmodas Ghose^. Before the said case
the legal position in this regard was unclear. There were
conflicting views as to whether an agreement with minor is
voidable or altogether void. This controversy was set at rest
In the said decision by Privy Council. Here, it is important to
quote the words of Lord North ;
"Looking at Section 11 their Lordships are satisfied

that the Act makes it essential that all contracting
1 (1903) 30 lA 114 : 30 Cal. 539 cited by Singh Avtar in Principles of Mercantile

Law on pp. 79
93
parties should be competent to contract and expressly
provides that a person who by reason of infancy is
incompetent to contract cannot make a contract within
the meaning of the Act. The question whether a
contract is void or voidable presupposes the existence
of a contract within the meaning of the Act, and
cannot arise in the case of an infant."
The concluding remark in the above paragraph is worth

noting that "the question whether a contract is void or
voidable presupposes that existence of a contract within the
meaning of the Act and'cannot arise in the case of an
infant." This very observation by Lord North goes to the
root of the matter. Since the present case is of historic
importance, we need to discuss its facts briefly. The brief
facts of the said case were that the plaintiff, a minor
executed a mortgage for the sum of Rs.20000/- in favour of
the defendant, a money lender. Out of this amount, he
received Rs.8000/- as advance. Subsequently, minor filed a
suit for setting aside the mortgage. The plaintiff (the minor)
had remedy under Section 39 of Specific Relief Act, 1877
and therefore he was entitled to relief i.e. cancellation of
mortgage. The moneylender in turn claimed refund of
advanced that had already been paid to the minor. The
money lender relied on Section 64 (as per this section,
person rescinding a voidable contract shall, if he had
94
received any benefit thereunder from another party to such
contract, restore such benefit to the person from whom it
was received) and Section 65 (according to which the
similar principle of restoration applies if a contract becomes
void or is discovered void subsequently). The Privy Council
rejected the claim of the moneylender on the ground that
both the above sections stand on the premise that there
was a pre-existing contract between the competent parties.
However, in case of an agreement with minor a contract
does not come into existence at all and therefore no
question of applying the principle of restitution. The Court
declared that an agreement with a minor is void ab initio.
The judgement of Privy Council in this decision had far-

reaching impact. And which subsequently opened a Pandora
box. Ever since the above said decision, the Indian courts
have been constantly holding the view that an agreement
with minor is void. This has been held for the advantage of
the minors; but surprisingly sometimes it has gone against
the interest of minor too. For instance in Mir Sarwarjan V.
Fakhruddin Mohd. Chowdhary^ on behalf of minor his
guardian entered into a contract for purchase of certain
immovable property. Subsequently, minor sued the other
party for specific performance of contract. However, his
^ ILR 11912) 39 Cal. 232 (PC) cited by Paras Diwan. Children and Legal
Protection, 1996, pp. 285, 287
95
action failed on the ground that it was not within the
competence of minor's guardian or the manager of his
property to bind minor or his estate and therefore contract
was held to be void and could not be specifically enforced.
However, later on courts went on gradually changing its

view as to contracts by or with minors; or contracts entered
Into on behalf of minors. For instance, in Srikakulam
Subrahmanyam V. Kurra Sabha RaoS the Privy Council
while modifying its earlier view held that when minor's
guardian transfers minor's inherited property to pay off an
inherited debt then such transfer is binding on minor as it Is
for his benefit.
Minor holds a quite different position in contractual matters

in civil laws. Law seeks to protect minor as against his own
ignorance and inexperience. So much so that even minor's
misrepresentation as to age while entering into contract is
not treated estoppel against him. Therefore, if a minor
enters into a contract by falsely representing himself to be
an adult, be is allowed to plead minority subsequently and
consequently such contract cannot be enforced as against
minor. For Instance, In Leslie ( R ) Ltd. V- Sheii^, a minor
borrowed 400 Pounds from a moneylender by falsely telling
1 (1949) 75IA 115

2 (1914) 3 KB 6 0 7 cited b y Avtarsingh, Principles of Mercantile Law, 7"» Ed., p p
81
96
him a lie about his age. On the faith of representation by
minor moneylender lent him the money. The moneylender's
action for recovery of money failed on the ground that
doctrine of restitution does notapply against minor.
In words of Abrar Hassan Khan - restoration means the

parties are to be put in the position in which they were
before the act complained of took place. So if minor has
received specific thing, the specific thing can be restored to
the other party. But In case of money it can be restored
provided it is traceable. If minor is asked to return the loan
or money it will amount to repayment. Restitution stops
where repayment begins Similarly, if repayment is
allowed (as is thought permissible under Sections 30 and
33(2)(b) of Specific Relief Act) the effect would be to call
minor's agreement as voidable contract; this will be
contrary to the basic policy of protecting minor^.
I t may be remembered that English law regarded minor's

contract as viodable, but in India, by virtue of decision of
Privy Council in Mohorlbibi, the minor's agreement is
altogether void. Labor High Court^ therefore, held that
there is greater scope of application of doctrine of
^ Child and Contractual Capacity, 371 (Child and the Law) cited in Children and
Legal Protection - by Paras Diwan
2 Khan Gul v. Laldia Singh, ILR (1928) 9 Lah 701, cited by Paras Diwan,
Children and Legal Protection, 1996
97
restitution in India. However, Ailahabad High Court^ did not
think it appropriate to follow Lahore High Court's view on
the justification that this would be tantamount to enforcing
an agreement against minor which is otherwise void. Even
Andhra Pradesh High Court^ too followed the view taken by
Allahabad High Court.
However subsequently. Law Commission of India ultimately

accepted the view of Sir Shadi Lai of Lahore High Court
taken in Khan Gul V_ Lakha Singh^. Accordingly in its 13*^
Report, the Law Commission of India observed that, "we
are inclined to prefer the view of Shadi Lai, Chief Justice in
the Lahore case"^." Thus Law Commission recommended
that doctrine of restitution should also be made applicable
to the agreements with minor. It observed that when a
minor resists a suit on the ground that it is void owing to
his minority, he must restore any benefit received by him
under the contract. However, he shall not be liable to make
any compensation in such a case. The recommendations of
Law Commission were rightly accepted by legislature and
accordingly Section 33 of Specific Relief Act was amended
and clauses (a) and (b) were added to Section 33(2).
1 AjudhSa Prasad v. Chandan Lai, AIR 1937 All 610 tFB)

2 Gokeda Latchurao v. V Bhimayya, AIR 1956 AP 182
3 AIR 1928 Lah 609 (FB)
4 Khan Gul v. Lakha Singh, ibid
98
Thus now the position of a minor in his agreement is that
an agreement with the minor is void. If such minor has
received any property under this void agreement he would
be liable to restore it, so long as it is traceable in his hands.
In other words, if minor has already converted such
property or expended the money received under such void
agreement then he would not be liable to make
compensation to the other party. The other party shall be
solely liable to bear the loss.
3 - 1 . 1 . Contracts entered into for the benefit of minor
The controversy as to whether minor's agreement is void or

viodable, was rest at rest in Mohoribibi's case by Privy
Council declaring that minor's agreement is altogether void.
Meaning thereby that no contractual liability arises as
against minor out of any agreement. Even though minor
contracts to perform any legal obligation, it cannot be
enforced against him. However, if any contract is for the
benefit of minor, then minor can enforce that contract for
his benefit. The law does not prevent a minor from being
beneficiary or promisee. However, almost ail decisions
which allow minor to enforce the contract as against third
parties proceed on the ground that minor has already
discharged his obligation under the contract and now he is
99
merely a promisee. Thus, minor lias performed liis part of
the contract and other side is yet to perform its part of the
contract. In such cases, minor will be allowed to compel
other side to perform its part of contract. For instance, in
Raghava Chariar V. Srinivasa^, it was held that a
mortgage executed in favour of a minor for which minor
had already paid the contract money, could be enforced by
such minor or any other person on his behalf. However,
where minor has also yet not performed his part of the
contract (i.e. the contract is executory from both the sides)
then principle laid down in Mohoribibi's case that contract
with the minor is void, will apply. Accordingly, even minor
will also be not allowed to enforce the contract^.
3.1.2 Ratification on attaining majoritv

An agreement entered into by the minor during his minority
is void ab initio and therefore, it cannot be ratified by him
after attaining the age of majority. For such transactions, a
new contract is required to be entered into after minor's
attaining the age of majority. The consideration received by
a minor under a contract made during his minority cannot
stand as a good consideration for a fresh contract entered
into by his after attaining his age of majority. The rule of
^ (1916) 40 Mad. 308 cited by Arvarsingh in Principles of Mercantile Law, 17*

Ed. pp 84
2 Raj Rani v. Prem Abid, AIR 1949 Bom. 215, ibid., pp 85, 86
100
past consideration as embodied under Section 25(2) would
not apply to such cases.
However, if a minor has incurred any debt during his

minority and he pays off that debt after attaining the
majority, such a payment would be regarded as completed
gift. The sum paid as such cannot be recovered later o n ^
Allahabad and Culcutta High Courts have taken view that if

some consideration is paid to the minor during minority and
after attaining his age of majority further consideration is
paid to him and thereby the recipient (eariier minor)
accepting such further consideration for repaying the whole
of the money paid, is binding on him. But it is submitted
that this view does not appear to be correct. The reason is
that if further consideration is paid to the minor after
attaining his age of majority on account of some compelling
circumstances for such minor, and when he is compelled to
repay the whole amount, it would amount to be enforcing
the consideration paid to such minor under old void
contract.
1 Anant Raj v. Bhagwan Rai, AIR 1939 All. 12, cited by Arvarsingh in Principles
of Mercantile Law, 17* Ed. pp 87
101
3-1-3 Contracts entered into for necessities of a minor
As discussed above, the contract with a minor is void ab
initio and cannot be enforced against him. Thus, no specific
enforcement of contract with the minor can be made. S. 10
of Indian Contract Act 1872 requires competency of parties
to contract; whereas S. 11 clearly declares that a person
who has not attained the age of majority is Incompetent to
contract. However, Section 68 of the Act provides that, "if a
person, incapable of entering into a contract, or any one
whom he is legally bound to support. Is supplied by another
person with necessaries suited to his condition in life, the
person who has furnished such supplies is entitled to be
reimbursed from the property of such incapable person."
Thus when the necessaries are supplied to the minor or any

person to whom he is bound to support, then he is liable to
make payment for such necessities. He is not personally
liable but his property is.
The analogous provision is to be found in Section 3 of

English Sale of Goods Act, 1979, which reads as under :-
(1) Capacity to buy and sell is regulated by the general

law concerning capacity to contract and to transfer
and acquire property.
(2) Where necessaries are sold and delivered to a
minor or to a person who by reason of mental
102
incapacity or drunl<enness is incompetent to
contract, he must pay a reasonable price for them.
(3) In subsection (2) above ^necessaries' mean goods
suitable to the condition of life of the minor or other
person concerned and to his actual requirement at
the time of the sale and delivery.
The term ' necessaries' has not been defined in the Indian
Contract Act or anywhere else. But, the term certainly is of
wider import and Is not confined to bare necessities such as
food, shelter and cloths. In Section 68 the term
' necessaries' is qualified by the words "suited to his
condition in life". Thus the term is subjective. What Is
necessaries for one person may not be so for another. It
depends upon the condition in life of a concerned person.
Further there is not straightjacket formula to determine
that whether the goods supplied or services rendered are
necessaries or not. The answer is very relative and depends
upon the facts and circumstances of each case.
Further the courts have given broader interpretation to the

term 'necessaries'. For instance in an English case^ the
Court observed that, 'Things necessary are those without
which an individual cannot reasonably exist. In the first
1 Chappel V. Cooper, (1844) 13 M and W 252 at 258, cited by Arvarsingh in

Principles of Mercantile Law, ITîi Ed. pp 88
103
place, food, raiment, lodging and the like. Again....
Instructions in art or trade, or intellectual, moral and
religious information may be a necessary also. Again if a
man lives in society, the assistance and attendance of
others may be necessary for his well being."
Thus this decision covers even those things within the

meaning of necessaries which are necessary for his well
being. I t may also include medical services, educational
services etc.
However, merely supply of things which are otherwise

suitable to the lifestyle of the minor would not entitle the
supplier to recover the price. It is further required to be
examined whether minor Is already provided with sufficient
stock of such things supplied to him. For instance, in Nash
V. Inman^, A, a minor, was supplied with some fancy coats
by a tailor. When tailor brought an action for recovery of
price, his action failed as it was proved that A had already
sufficient supply of clothing according to his position in life.
Thus, in India, the nature of liability is of quasi contractual

nature. Though Indian Contract Act, 1872 does not talk of
quasi-contracts, corresponding provision are incorporated
1 (1908) 2 K.B. 1, cited by Arvarsingh in Principles of Mercantile Law, IT^^ Ed.

pp 89, 90
104
under Chapter V (Sections 68 to 72) of the Act under the
head ' O f Certain Relations Resembling Those Created By
Contract'. Thus the liability imposed on the minor is not
exactly that of contractual nature, but the law seeks to
prevent undue hardship that might be caused to third
parties who have supplied goods to the minors. At the
conclusion, it may be reiterated here that the liability of
minor is not personal but only his property is liable for such
debts.
3.1-4 Position of child in Contracts of Marriage

Sometimes, parents of minor children enter into contracts
of their (children's) marriages. The question arises whether
such contracts are enforceable by and against minor or not?
From the very beginning. In most of the Indian cultures,

arranging marriage of their children has been regarded to
be a pious and essential duty of parents or guardians.
Parents always find satisfaction in seeing their children get
married and settle down. Perhaps till first half of 20*^
century, children did not exercise their volition in the
matters of marriage and child marriages arranged by
parents were prevalent. Therefore, earlier decisions show
that contracts of child marriages, like any other contracts,
were valid and enforceable. For instance in
105
Purushotamdas V. Purushotamdas^, a minor girl whose
marriage was contracted during iier minority, refused to
marry as contracted by her father. A suit was brought
against her father for breach of contract of marriage and
compensation was claimed. The court, discarding the
contention that marriage had frustrated on account of her
refusal to marry, held that the plaintiff was entitled to
compensation.
In one another case^ where parties were Muslim, the court

observed that a suit for breach of contract of marriage
would not be tenable under Muslim Law but the aggrieved
party would be entitled to compensation under section 73 of
Indian Contract Act, 1872.
In case of a Christian marriage^ too it was held that the

contract of marriage, when it is for the benefit of minor, is
enforceable and minor can enforce it.
In one more case where parties'^ were Parsies, Court held

that contract of marriage of a giri is prima facie for her
benefit. Therefore, it would be enforceable by the minor,
though it may not be enforceable against minor.
1 ILR (1895) 21 Bom. 2 3 , cited by Paras Diwan, Children and Legal Protection,
1996, p p . 279, 2 8 1 , 2 8 7
2 Abdul Razak v. Mahomed Hussain, ILR (1918) 42 Bom.499. ibid., p p . 2 7 9
3 Rose F e m a n d e s v. J o s e p h Gonsalve, ILR (1924) 4 8 Bom. 6 7 3 , ibid., p p . 2 8 2
4 Khimji Kuverji v. Laiji Karamjl, AIR 1941 Bom. 129, ibid., p p . 280
106
Thus, irrespective of religion, Indian courts consistently
held that in India generally contracts of marriages entered
into by the parents of nnlnor children, were prima facie for
the benefit of children and therefore were enforceable.
However, it does not appear from any decision that courts
have granted specific performance of such contracts. Thus,
It may be concluded that, in case of breach of contract of
marriage, aggrieved party would be entitled to
compensation for whatever damage it might suffer.
However, it may be noted that this is an old position of law,

which has now become obsolete on account of Child
Marriage Restraint Act read with specific provisions in other
codified legislations e.g. Hindu Marriage Act, Special
Marriage Act etc. Now, these legislations contain specific
provisions which make child marriage a punishable offence.
Child marriage, now a days is looked upon as a social evil.
These provisions are to discourage child marriages. Though
they contain penal provisions for solemnization of child
marriage, still it may be remembered that even today, a
child marriage is not absolutely void. But it may safely be
concluded that in view of above said statutes, now no
contract for child marriage can be declared enforceable.
107
3.1.5 Position of Child under a Contract of
Apprenticeship
A minor may enter into a contract of employment so as to
earn a living or into a contract for the purpose of obtaining
instruction or education so as to qualify for a suitable trade
or profession whereby he or she may profit himseif
afterwards^. I t may be for the benefit of minor to acquire
skill and get employment for earning his livelihood.
However, though such contracts may prima facie be for the
benefit of the minors still courts have to examine carefully,
having regard to the circumstances of the case, whether
the contract as a whole is beneficial to the minor. In case of
Clements V. London and North Western Railway
Company^, a minor entered into a contract of service a
railway company. He also agreed to join company's
insurance scheme relinquishing his right of action under
Employer's Liability Act, 1880. The court observed that
contract, as a whole, was for the benefit of minor and
therefore was binding on him.
In India, law relating to regulation and control of training of

apprentices is contained in the Apprentices Act, 1961. The
Act prohibits employment of a person below the age of
fourteen as apprentice (Section 3). The contract of
1 Co.Litt. 172a. cited in Anson's Law of Contract, 28ti> Ed. 2 0 0 2

2 (1894) 2 QB 482, ibid.
108
apprenticeship is regarded for the benefit of minor. The
contract of apprenticeship, when a person is minor, is
entered into on his behalf by his guardian. It is enforceable
not only by but also against apprentice. The Act also makes
provision for stipend to be paid to apprentices. The
provision for compensation for any personal injury caused
during and in course of employment to the apprentice is
also made in the Act. The Act is a complete code in relation
to the vocational training of the apprentices.
3.1-6 Position of Chlid under Partnership

Contracts
The law relating to partnership was earlier embodied in

Indian Contract Act, 1872. Subsequently, in 1932, the
relevant provisions (Sections 239 and onwards) were
repealed from the Act and specific legislation was enacted
under the title Indian Partnership Act, 1932. Partnership is
the relation between persons who have agreed to, share
the profits of a business carried on by a\\ or any of them
acting for all. Persons who have entered into partnership
with one another are called individually "partners" and
Collectively "a firm", and the name under which their
business is carried on is called the "firm name"^.
1 Section 4 of Indian Partnership Act, 1932

109
Partnership contract is a specific contract between two or
more persons. Since it is a contract like any other, this
contract to be valid, inter alia, must bear all the essentials
of a valid contract. Therefore, it follows that all the partners
must be competent to contract. Thus a partnership firm
cannot be commenced with any partner who is a minor.
However, the law gives one concession by providing that in

an existing partnership business, a minor may be admitted
as a partner for the benefit of firm. This provision is
contained in Section 30(1) of the Act which reads as
under:-
"A person who is a minor according to the law to

which he is subject may not be a partner in a firm,
but, with the consent of all the partners for the time
being, he may be admitted to the benefits of
partnership."
Thus, for the benefit of the firm a minor may be admitted in

the f\rm. Such minor has a right t o such share of the
property and of the profits of the firm as may be agreed
upon, and he may have access to and inspect and copy any
of the accounts of the f i r m ^ Such minor's share is liable for
the acts of the firm, but the minor is not personally liable
Section 30(2) of Indian Partnership Act, 1932

110
for any such act^. Such minor may not sue the partners for
an account or payment of his share of the property or
profits of the firm, save when severing his connection with
the firm, and in such case the amount of his share shall be
determined by a valuation made as far as possible In
accordance with the rules contained in Sec. 48^. Provided
that all the partners acting together or any partner entitled
to dissolve the firm upon notice to other partners may elect
in such suit to dissolve the firm, and there upon the Court
shall proceed with the suit as one for dissolution and for
settling accounts between the partners, and the amount of
the share of the minor shall be determined along with the
shares of the partners^.
At any time within six months of his attaining majority, or

of his obtaining knowledge that he had been admitted to
the benefits of partnership, whichever date is later, such
person may give public notice that he has elected to
become or that he has elected not to become a partner in
the firm; and such notice shall determine his position as
regards the firm. Provided that. If he fails to give such
notice, he shall become a partner in the firm on the expiry
of the said six months'^.
1 Section 30(3) of Indian Partnership Act, 1932

2 Section 30(4) ibid.
3 Proviso to Section 30{4) ibid
4 Section 30(5) ibid
111
This provision appears to be very strange. Because if minor
fails or neglects to give notice he automatically becomes a
partner and in view of other provisions of the Act he
becomes personally liable for the acts of the firm during his
minority. It is submitted that this provision is likely to cause
more harm than the actual benefit he receives from such
firm. The provision rather should allow minor to exercise his
right of election judiciously within reasonable time and
should not impose such legal liabilities on the head of minor
for the acts over which he did not have any control during
his infancy.
Where such person becomes a partner, -

(a) His rights and liabilities as a minor continue up to the
date on which he becomes a partner, but he also
becomes personally liable to third parties for all acts
of the firm done since he was admitted to the benefits
of partnership, and.
(b) His share in the property and profits of the firm shall
be the share to which he was entitled as a minor^.
As a general rule, a person of full age cannot ratify his acts

done during his minority. But this provision appears to be
an exception to this rule which provides that if he elects to
Section 30(7) Indian Partnership Act, 1932

112
become partner or if he fails to repudiate his status as a
minor within six months after attaining majority, then
becomes personally liable to third partier for all acts of the
firm done since he was admitted to the benefits of
partnership.
Where, however, the minor elects not to become a partner,

his rights and liabilities shall continue to be those of a minor
under Section 30 up to the date on which he gives public
notice. His share shall not be liable for any acts of the firm
done after the date of the notice, and further he shall be
entitled to sue the partners for his share of the property
and profits in accordance with sub-section (4) of Section
30^
Thus, though Partnership Act gives concession by providing

that a minor can be admitted for the benefits of
partnership, but still the overall provisions do not fetch
much advantage to the minor in many respects as
discussed above.
3.1.7 Position of minor under contracts relating

to I m m o v a b l e Properties
In India, the transactions relating to sale, lease, mortgage
or transfer of immovable properties are governed inter alia
Section 30(8) Indian Partnership Act, 1932

113
by Transfer of Property Act, 1882. The Act is not exhaustive
and it does not apply the transfers by operation of law, in
case of insolvency, transfers by will, transfers by way of
succession or transfers by or on behalf of government. It
applies only to the transfers by act of the parties during
lifetime. As per Section 5 of the Act the term "transfer of
property" means an act by which a living person conveys
property, in present or in future, to one or more other living
persons, or to himself and one or more other living
persons; and "to transfer property" Is to perform such act.
One of the essentials of valid transfer is that the parties

must be competent to transfer. Section 7 of the Act
describes who is competent to transfer. Accordingly, "every
person competent to contract and entitled to transferable
property, or authorised to dispose of transferable property
not his own. Is competent to transfer such property either
wholly or In part, and either absolutely or conditionally. In
the circumstances, to the extent and in the manner,
allowed and prescribed by any law for the time being in
force". Thus the transferor must be competent to contract.
Since, Section 11 of Indian Contract Act declares that minor
is not competent to contract, therefore a minor cannot be a
transferor of immovable property. Thus a transfer by minor
Is inoperative^ Further, since contract with the minor is
1 Mohoribibi v. Dharaiodas Ghose, 30 J.A. 114 : 30 Cal. 539 PC

114
void ab initio, there cannot be ratification of such transfer
by him after attaining the age of majority.
However, there is nothing in the Act which prevents a minor

from being a transferee. Thus a transfer in favour of minor
by way of mortgage^ or sale^ where minor has paid due
consideration, is enforceable by the minor or any other
person on his behalf. We have already discussed in earlier
paragraphs that a minor cannot be a promisor but he can
very well be a promisee. When the minor has already paid
the consideration, there does not remain anything to be
done by him in the contract. Therefore, he becomes merely
a promisee and hence he can enforce the contract as
against other party and such other party cannot avoid the
contract on the ground that contract with the minor is void.
Even minor can bring a suit for recovery of rent^ or can sue
upon a promissory note"^ executed in his favour. Transfers
in favour of minor by way of gift are valid as in that case no
liability is imposed upon minor to pay consideration and
prima facie they are in the interest of the minor.
1 Raghava Chariar v. Srinlvasa (1917) 40 Mad. 308 (FB); Zafar Ahsan v. Zubaida
Khatoon, 121 10 398; Saiyadeva Narain v. Tribeni Prasad, 161 IC 579; Madhab
Koeri V. Baikuntha Karmaker (1919) 4 Pat. U J . 682, supra
2UlfatRaiV.GauriShanker (1911) 33 All. 657; Narain Das v. Musammat
Dhania (1916) 38 All. 154; Thakur Das v. Putii, 5 Lah. 317; Munia v. Perumal,
37 Mad. 390; Ram Sewak v. Ram Sahai, O. W. N. 281; Muimi Koer v. Modan
Gopal (1916) All. 62, see Paras Diwan, Children and Legal Protection, 1996
3 Zeebunnissa Begum v. Mrs. Danagher, 59 Mad. 952, ibid.
•1 Rangarazu v. Maddura (1913) 24 Mad. L.J. 363, ibid.
115
The minor himself is not competent to transfer the
property. However, transfer of minor's estate by his
guardian is valid provided it is within such guardian's power
and is for the benefit of the minor.
3-2 Position of Child in Torts
Tort means a civil wrong which is not exclusively a breach

of contract or breach of trusts Salmond defines tort as '\.a
civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the
breach of contract or the breach of a trust or other merely
equitable obligation. Fraser defines it as "^ân infringement of
a right in rem of a private individual giving a right of
compensation at the suit of the injured party". As per
Winfield, "tortious liability arises from the breach of a duty
primarily fixed by the law; this duty is towards persons
generally and its breach is redressible by an action for
unliquidated damages".
Anson observes that a minor is generally liable for torts

committed, but a breach of contract may not be treated as
a tort so as to make the minor liable^. Learned author Paras
Diwan too admits that the liability of the child in tort is
almost at par with adults, except where the cause of action
1 Section 2{m) of the Limitation Act, 1963

2 Anson's Law of Contract, 28"^ Ed.
116
arises out of or in connection with contract^. Thus,
otherwise the liability of the minor for the torts committed
by him is at par with adults. But sometimes, it may happen
so that a wrong committed by the minor amounts to be
both - a breach of contract as well as tort. As per Sections
10 and 11 of Indian Contract Act, 1872, a minor is
incompetent to contract and since the contract with the
minor is void, no liability is fixed on the minor under the
contracts. Therefore, since action does not lie against minor
for the breach of contract, no action can be brought about
against the minor under torts on the same cause of action.
Otherwise, this would amount to be enforcing something
which is otherwise not enforceable. For instance, where a
minor injures a mare which he hires, by over-riding it^; or
where a minor takes a car on hire for fetching luggage from
the station and drives it far more miles wherein he meets
with an accident and car is damaged-^, in no such case
minor would be liable as these liabilities arise out of
contracts.
3-2-1 Rights of a child against Pre-natal Iniurles

An action can also be brought on behalf of minor in case
where a wrongful act takes place against minor. The right
to life is physical liberty is given even to a child yet to be
^ Paras Diwn - Children a n d Legal Protection - 1st Ed.

2 J e n n i n g s v. Rundall, (1799) 8 Term R. 3 3 5 , ibid.
3 Fawcett V- S m e t h u r s t (1914) 84 L.J. K.B- 4 7 3 , ibid.
117
born. Therefore, if a child receives any pre-natal injury then
the action in tort may be brought about against the
wrongdoer on behalf of the child^.
3.2.2 Chiid^s Right of action against parents or

persons witli guasi-parentai authority
Sometimes, parents and the persons standing in shoes of
parents i.e. teachers etc. are given authority to inflict
reasonable punishment to the child. In India, this power to
punish is exercised very lavishly by parents and teachers.
In such cases, no action for tort can lie against parents or
teachers. However, such punishment must be reasonable in
justified in circumstances. When it exceed it reasonable
limits, the action may be brought on behalf of the child
against the person concerned for assault, battery or false
imprisonment.
3.2.3 Vicarious Liability of parents and guardians

Similarly, there is no vicarious liability of the parents or
guardians for the acts of their child or ward, as the case
may be. However, this Is subject to two exceptions. First,
where there exists master servant or employer employee
relationship between parents and children, then parents
would be liable vicariously for the wrongful acts of their
children. For instance, where a father employs his minor
1 Montreal Tramways Co. v. Leveille, 1933 S.C.R. 456

118
son to fetch some goods for him from the market. While
doing so, he allows his son to take his car with him. Minors
drives car negligently and causes injury to some third
person. Father would be variously liable for his son's
negligent driving. Here, father is liable for the tortious act
of his son not as a father but in capacity of the employer or
principal. Secondly, where in the wrongful act of the
children, parent's negligence in parental control is proved,
in that case also parents would be liable for the acts of their
children. For Instance, a father supplied and allowed his son
to be in possession of an air gun. Son, while negligently
handling the gun, injured plaintiff. Held, plaintiff can sue
father too^.
3.2.4 Child^s Right to Reputation

A child is an independent person. A child has, therefore,
right to reputation. When this right is violated, child can
initiate an action for defamation against the wrongdoer.
This right may even extend to unborn child. I t cannot be
pleaded that child himself knows nothing about Its social
reputation. This is because in an action of defamation, it
irrelevant what a person thinks about himself, what is
material is that what others think of him.
1 Bebee v. Sales, (1916) 32 T.L.R. 413

119
3-2-5 Protection against nuisance
In a landmark judgement of Cliurch of God (Full Gospel)
in India V. K.K.R. lâjestic Colony Welfare
Association^ the question was whether under the guise of
religious freedom, beating of drums or reciting of prayers
by use of microphones and loudspeal<ers so as to disturb
the peace and tranquility of the neighbourhood should be
permitted? The Hon'ble Court observed, "In our view, in a
civilized society in the name of religion, activities which
disturb old or infirm persons, students or children having
their sleep in the early hours or during daytime or other
persons carrying on other activities cannot be permitted. I t
should not be forgotten that young babies in the
neighbourhood are also entitled to enjoy their natural right
of sleeping a peaceful atmosphere. A student preparing for
his exams is entitled to concentrate on his studies that
without their being any unnecessary disturbance by the
neighbours."
3.2.6 Negligence of oersons w i t h auasi-parentai

authority
The case of M.S. Grewai & another V. Deep Chand Sood
& Others^, was a startling case dealing with the
1 (2000) 7 s e c 282
2 (2001) 8 s e c 151
120
unfortunate and untimely death of 14 school going kids.
Some students of 4^^, 5"^^ and 6*^^ standard of Dalhousie
Public School, Pathankot were taken on picnic by the school
authorities on 28^^ May, 1995. The students * were
accompanied by five teachers in all. In post-lunch period 14
students alongwith two teachers Shanmugham and S.P.
Singh went down the river for a considerable distance. The
teachers, however, discovered a sudden ' dibber' of about
6-8 feet deep by reason wherefore the teachers themselves
along with the students fell into a great danger- whereas
the teachers could save themselves, the students fell a
victim to the utter neglect of the teachers. The children
were allowed to play in the danger zone of the water
without any caution or any warning being sounded, the
resultant effect of which was drowning of these unfortunate
fourteen children. The Govt, of Himachal Pradesh ordered a
judicial inquiry as also the State of Punjab ordered an
inquiry by the Sub-Divisional Magistrate, Pathankot. The
parents, not satisfied with the progress of the inquiry
moved High Court vide a petition under Article 226 of the
Constitution. High Court, ordered CBI probe as prayed. CBI,
upon examining the witnesses etc. found that ""^death of 14
students by drowning was caused by the rash and negligent
acts of first, allowing the students to stray downstream by
about 1100 ft and enter into unchartered waters and
secondly, due to direct instigation by Shri Surinder Pal
121
Singh, whereby students in their efforts to catch him and
thereafter to race to the bushes on the western riverbanl<
downstream, entered into the water of dibber and were
drowned as the depth of the water exceeded their average
height." The High Court, after hearing the matter, ordered a
hefty compensation to be paid to the parents of the
victimized children. An appeal against this order was
preferred in the Hon'ble Supreme Court, in which Supreme
Court while dealing with the concept of negligence
observed,
"while the parent owes his child a duty of care in relation to
the child's physical security, a teacher in a school is
expected to show such care towards a child under his
charge as would be exercised by a reasonably careful
parent Duty of care varies from situation to situation -
whereas It would be the duty of the teacher to supervise
the children in the playground but the supervision, as the
children leave the school, may not be required in the same
degree as is in the piayfleld undoubtedly if the
students are taken out to a playground near a river for fun
and a swim, the degree of care required stands at a much
higher degree and no deviation therefrom can be had on
any count whatsoever. As a matter of fact, the degree of
care required to be taken, especially against the minor
children, stands at a much higher level than adults :
children need much stricter care Incidentally,
122
negligence is an independent tort and has its own strict
elements especially in the matter of children - the liability is
thus absolute vis-a-vis the children."
In this case, the Court further held that since school

authorities had deputed those two teachers to escort the
children, the school authorities were vicariously liable for
the negligent act of the teachers.
3-2.7 Doctrine of contributory negligence vis-a-

vis children
Contributory negligence is one of the defences in an action
for tort of negligence. The question, 'whether child is liable
for contributory negligence?' came up before the various
courts many times. The courts have consistently held that a
child cannot be blamed for contributory negligence. The
logic applied by the courts was that a child cannot be
expected to be as careful for its own safety as the man of
full age. In the year 1976 two cases was decided by High
Courts of Karnataka^ and Goa^. In both these decisions,
courts held that children of tender age (6 years old) cannot
be blamed for contributory negligence. The Delhi High
Court, in D.T.C. V. Lalita^, observed that "in case of a child
of tender age, conduct on the part of such child contributing
' R. Srinivasa v. K. M. Paraslvamurthy, AIR 1976 Kant. 9 2

2 Motias Costa v. Roque Augustinho, AIR 1976 Goa 1
3 AIR 1982 Delhi 5 5 8
123
to an accident may not preclude it from recovering in
circumstances in which similar conduct would preclude a
grown up person from doing so". Since, a child is not liable
for contributory negligence, in case of injury etc. it is
entitled to full compensation^ So much so, that even when
a child suffers Injuries while it has committed trespass on
the land of another, still he can recover compensation for
injuries if the defendant on whose land child went up
committing trespass is proved guilty of negligence^. Even a
false and fabricated statement on the part of child on
account of which ultimate accident took place, would not
disentitle the child from recovering compensation^.
However, in such cases it is important to note that If child
appreciates the danger, he would be liable for contributory
negligence. Thus, age and mental capacity of child would
play a vital role in such cases.
3.2-8 Dangerous Premises or Structures

An occupier of premises or structures owes certain duties
towards visitors in respect of their physical safety or safety
of their property. The occupier here means a person on
possession of such premises or structures - he need not be
owner thereof. In England, the law relating to liability of the
occupier of the dangerous premises is contained in
J M.P.S.R.T. Corpn- V. Abdul R a h m a n , AIR 1997 MP 248

2 Alka V. UOI, AIR 1993 Delhi 267
3 Yachuk v. Oliver Blais Co. Ltd., (1949) AC 386
124
Occupiers' Liability Act, 1957. Prima facie the liability of the
occupier extends to the invitees and licensees. He does not
owe any such duty towards trespassers. But when the
trespasser Is the child, the occupier Is bound not to cause
any hurt to the trespassing child in any way. But children
are fascinated on account of some allurement existing over
the land of the occupier and it turns out to be a danger then
occupier shall be liable for the injury caused to the children
who, even though, trespassing on the land on account of
such allurement, get hurt. For instance, in Glasgow
Corporation V. Taylor^, a child in a public part fetched
and ate berries from an attractive looking shrub in the park.
It was poisonous and the child died. Held, the defendants,
who controlled the park were liable. Similarly, in Pearson
V. Goleman Bros.^, a seven year old girl went to see a
circus with her twelve year old sister. When the circus was
on, she felt a natural call. No lavatory accommodation was
available, so she found for herself a quiet place to relieve
herself In an adjoining enclosure where a zoo was situated.
Co-incidentally she came nearby a lion's cage. Lion took out
his paws through the cage and hurt the girl. Held, the
occupiers were liable as they had not properly marked off
the words "Lions-danger". Thus, the occupiers owe a special
1 (1922) 1 A.C. 4 4
2 (1948) 2 KB 359 (C.A.)
126
duty of care towards children. Because what is an obvious
danger for the adults may be a trap for the children^
3.3 Provisions Relating to Child under

Code of Civil Procedure^ 1 9 0 8
Till the year 1859, there was no procedural law relating to

civil nnatters applicable to whole of India. At that time, the
Courts in Presidencies were governed by their own
procedural rules and orders. The procedural law of the
Mofussil Courts was provided for in some special Acts. This
resulted in different procedural laws in different regions.
Also sometimes it was found that in the same region
multiple procedural laws were found to be in force. This
sometimes resulted in chaotic situation. To deal with the
situation, in the year 1859 first Civil Procedure Code was
passed. However, it also have limited application in the
sense that It did not apply to the courts established by
Royal Charter i.e. Supreme Court and the Sudder Dewany
Adalats. The Code subsequently underwent substantial
amendments in the years 1860, 1 8 6 1 , 1871 and 1873. In
the year 1882 the next Civil Procedure Code was passed,
which again underwent several amendments till it was
replaced by the present Code of Civil Procedure, 1908.
1 R K . Bangia, Law of Torts, l?** Ed.
126
The present Code of Civil Procedure, 1908 was to
consolidate and amend the law relating to the procedure to
be followed by Civil Courts in India. The Code is exhaustive
Civil Code in the matters covered by it. However, looking to
the extremely dynamic nature of the society it cannot be
expected to cover the all matters which the fast-changing
society needs to be catered to. The present Code has been
amended several times including the significant amendment
in 1976 and 2002. Further it may be noted here that the
present Code has been accepted by several States with
some specific amendments suiting to their local
requirements. With regard to the matters not specifically
dealt with by the Code, the Courts have wide discretion to
exercise their inherent powers and decide the matters
taking into account the facts and circumstances of each
case.
The Code has been divided into two parts. The first part
deals with the body of the Code containing 158 sections.
The second part being the Rules which contain Orders and
Rules thereto. This is a very peculiar feature of our Code.
The difference between the two is that body of the Code
contains the principles that create jurisdiction and the rules
provide for the mode / procedure in which the jurisdiction
created by body part is to be exercised.
127
As mentioned earlier, the Code of Civil Procedure is the
procedural law which Is to be observed during the Court
proceedings. It is a uniform law and applies in almost all
civil matters. Sometimes it may happen so that any legal
right vested in minor is violated. Or even it may happen so
that any legal right vested in some other person is invoked
as against the minor. In such cases the action is required to
be brought by or against minor. But as we know that a
minor, on account of obvious reasons, is deemed to be
incapable of protecting his interest, he needs to be given
some protection shelter in the litigations. Now, it cannot be
provided out rightly that no suit shall lie by the minor or
against minor. Such blanket provision cannot be made. If
the minor is permitted to bring suit himself, he may not be
able to take important decisions at his own in his best
interest. Similarly, if a minor is directly allowed to be made
a party defendant, then also his interest may get
prejudicially affected. Therefore, to best serve the interest
of minor law has made provisions relating to suits by or
against minors^
The provisions of Order XXXII of CPC have been reproduced

and analyzed hereunder to understand whether they are
adequate or not.
1 Order XXXn of Code of Civil Procedure, 1908.
128
3 . 3 . 1 W h o is minor?
The Code does not provide a separate definition of the term
' minor'. Here the term ' minor' has been adopted in the
same sense in which it has been used under S. 3 of Indian
Majority Act, 1875. Therefore, for the purpose of application
of this Order, the term minor shall mean a person who has
not attained his age of 18 years. However, where a
guardian has been appointed for the person or property of
the minor then in such cases he shall attain majority upon
completing 21 years of his age.
3 . 3 . 2 Suits by t h e minor
Rule 1 of Order XXXII which deals with institution of suit by

minor makes it clear that every suit by a minor shall be
instituted in his name by a person who in such suit shall be
called the next friend of the minor. This is because minor is
regarded as incapable of filing litigation. The law recognizes
that on account of obvious reasons minor is incapable of
taking right decisions for protection of his interests in the
litigation hence this provision. Explanation attached to this
section (which was added by Amendment Act, 1976) makes
it clear that for this purpose "minor" means a person who
129
has not attained his majority within the meaning of Section
3 of Indian IWajority Act, 1875.
A person who institutes a suit in the name of minor is

l<nown as next friend and such person, in case where suit
has been filed against minor, is known as guardian ad litem
or guardian for suit.
Rule 4 mal<es it clear that any person can act as next friend
who is of sound mind and has attained the age of majority.
Further the interest of such person must not be adverse to
that of the minor and he must not be the defendant in the
same litigation as against the minor^. The minor shall have
relief against next friend where minor suffers any loss on
account of misconduct or gross negligence on the part of
next friend^. Further wherever a guardian has been
appointed / declared by the competent authority then only
such person shall act as next friend. However, if the court
considers that it Is in the interest of the minor's welfare that
another person be permitted to act or be appointed as next
friend then it may do so. However, in that case court has to
record the reasons in writing for its decision-^. It may be
observed here that this rule talks of only de jure guardians
and does not contemplate natural or de facto guardians.
1 Order XXXII Rule 4(1)

2 Rule 3A(2) Ibid
3 Rule 4(2) Ibid
130
Ruie 2(1) makes it clear that where a suit is instituted by or
on behalf of a minor without a next friend. The court may
act suo moto or defendant may apply in such case for
taking the plaint off. In such a case, the court may order
the costs to be paid by the pleader or any other person by
whom such suit was presented. Where the suit has been
instituted by the next friend In the name of minor, the
defendant shall have opportunity to raise objection as to
the authority of next friend so institute such suit. Such
objection may be raised by the defendant at initial stage
i.e. during trial or it may be raised in appropriate cases in
appeal either. But in Hardi Narain V. Rudder Perkash^ it
was held that if the court is satisfied that plaintiff has
otherwise right to sue and the objection raised in appeal is
mere formal one, then court may not allow such objection
at appellate stage.
Further Rule 5(2) provides that where the Court passes any
order which any way affects the minor party, without being
represented through next friend, then such order may be
discharged. However, the court shall have discretion in the
matter. When such order is discharged by the court, the
party in guilt shall be liable to bear the costs involved.
1 11 I.A. 26: 10 Cal. 626

131
The question arises tliat when a suit is instituted without
minor plaintiff being properly represented when what would
be the consequence? Whether suit is liable to be dismissed
or it may be allowed to continue after rectification of error?
The courts have, from time to time taken the view that
instead of dismissing the suit, the proceedings should be
stayed and sufficient time should be given for appointment
of next friend. However, where the suit has been instituted
with the due knowledge as to minority with ulterior motive
of deceiving the court or evading the payment of costs in
event of failure, such suit would be liable to be taken off^
Where the suit has been instituted on behalf of an alleged

minor who in fact is not a minor, the, Allahabad^, Calcutta^,
Madras'*, Lahore^ and Patna^ courts have decided that the
plaint shall be returned for amendment for rectification of
error as the defect is formal one and does not affect the
merits of the case.
It may further be noted that where a minor institutes a suit

misrepresenting himself to be major and without next
1 See Rattonbai v. Chabildas. 13 Bom.7; Durga Devi v. Gur Narain 69 IC 401;

Ravichan v. U.M. Raman, 44 M.L.J. 515; Abdul Hakim v. Sardar Mohammad,
AIR 1942 Pesh. 73 cited in Law of Minors by E. S. Subrahmanyan, 1968 Ed.
2 Wall Mohammad v. Ishak Ali, 1931 A,L.J. 777
STaquiJanv. ObaiduUa (1894) 21 Gal. 866
* Shammuga V. Narayana (1917) 40 Mad. 743
5 Amritsaria v. Gamun (1926) 89 I.C. 363
6 BiU Ashgari v. Muhammad Kassim (1951) A. P. 323
132
friend, in such cases if the defendant knows about the
minority of the plaintiff, he cannot be subsequently allowed
to resist the decree on the ground that plaintiff was minor
at the time of institution-of suit against him. Such decree
remains binding on the defendant^
No next friend or guardian for the suit shall, without the

leave of the Court, expressly recorded in the proceedings,
enter into any agreement or compromise on behalf of a
minor with reference to the suit in which he acts as next
friend or guardian. When any compromise is entered into in
violation of this rule, such compromise and the decree
based on it, shall be void and not merely viodable^. Thus
the compromise is possible only with the leave of the court
and it must be in the interest of the minor. Further where
the suit is withdrawn by virtue of compromise It has to be in
compliance with Rule 7 of Order XXXII. But when such
withdrawal is not by virtue of compromise and it is
otherwise In the Interest of the minor, no leave of the court
is required to be obtained and such withdrawal shall be
binding on minor^.
3.3.3 Suit Against Minor

In earlier paragraphs. It has been discussed what are the
provisions relating to institution of suits by minor. In such
1 Full Bibi V. Khokal Mandal, 55 Cal. 712; AIR 1928 Cal. 537
2 S.S. Gulam Ghouse v. S.S.A.M. Kamisul, AIR 1971 SO 2184
3 Rameswar Pershad v. Ram Bahadur Singh (1907) 34 Cal. 70
133
cases as discussed above, the suit has to be instituted by
the next friend. For that purpose, the appointment of next
friend is not necessary and a suit can straight away be
instituted by the next friend in the name of minor.
However, where the suit has been fifed agafnst minor, the
appointment of guardian ad litem is necessary In
accordance with Rule 3(1).
If the defendant Is an adult but he Is sued as minor by his

guardian ad litem and decree is passed against him, the
decree remains binding on him, provided he knew of the
suit. The principle of estoppel applies against h i m \
Thus In a sense the Order XXXII provides for "guardianship

in litigation" wherein a minor Is a party to it either where
the suit has been filed by or on behalf of minor or where a
suit has been filed against minor defendant. This shield of
guardianship stands not only for the original suit but it
extends also in appeal and execution proceedings^.
3.3.4 F r a u d o r n e g l i g e n c e on t h e p a r t o f n e x t
friend
In cases where an inference of fraud or collusion can be
drawn from the negligence or gross negligence of the next
friend it would be permissible for a minor to avoid the
1 Seshagiriv. Hamumantha. 1968 A. Ori. 236; Ramchariv. Duraiswami (1898)

21 Mad. 167
2 Rule 3{5) of Order XXXII
134
judgment or decree passed in the earlier proceeding by
invoking Section 44 (Evidence Act) witliout taking resort to
a separate suit for setting aside the decree or judgment. If
a judgment falls within the ambit of S. 44 it can be avoided
in the proceedings in which it is sought to be relied upon
and it is not necessary to have it set aside by instituting
independent proceedings in a competent Court. I n the
instant case what was required to be considered was
whether the judgment in the earlier declaratory suit fell
within the ambit of Section 44 and for that purpose it was
necessary to examine whether an inference of fraud or
collusion could be drawn from the gross negligence on the
part of the next friend of the minor, in conducting the
earlier declaratory suit. If such an inference can be drawn
the minor would not be bound by the judgment in the
earlier declaratory suit but if such an inference cannot be
drawn he would be bound by the said judgment till it is set
aside by the competent Court in an appropriate
proceeding^.
While holding the above view Hon'ble Supreme Court

quoted an English case as under. In Re Hoghton,
Hoghton V. Fiddey, (1874) LR 18 Eq 573, Sir Richards
Malins V. C , while considering the question whether an
1 Asharii Lai v. Koili, AIR 1995 SO 1440

135
infant is to suffer by any negligence on the part of a next
friend, has observed :
"The proposition that an infant of tender years may have
her whole fortune wrecked by the neglect of their next
friend is so monstrous that I cannot pay attention to it. She
is entitled to have a next friend who is diligent and will
protect her interests."
3 . 3 . 5 R e t i r e m e n t of N e x t F r i e n d
A next friend shall not retire without first procuring a fit
person to be put in his place and giving security for the
costs already incurred^ The application for the appointment
of a new next friend shall be supported by an affidavit
showing the fitness of the person proposed and also that he
has no interest adverse to that of the minor^. An application
for the removal of next friend can be made on behalf of the
minor or by any defendant on the ground that the interest
of the next friend is adverse to that of the minor, or that he
is so connected with the defendant whose interest is
adverse to that of the minor as to make it unlikely that the
minor's interest will be properly protected by him or w.here
he does not do his duty^. Where the guardian for the suit
desire to retire or does not do his duty, or where other
1 Rule 8 Order XXXIl

2 Ibid
3 Smt. Pritima Devi v. Additional Director, Consolidation of Holdings, Punjab,
AIR 1970 Punj. 2 0 5 (HB)
136
sufficient ground is made to appear, the Court may permit
such guardian to retire or may remove him, and may make
such order as to costs as it thinl<s f i t ^ Where the guardian
for the suit retires, dies or is removed by the Court during
the pendency of the suit, the court shall appoint a new
guardian in his place^. On the retirement, removal or death
of the next friend of a minor, further proceedings shall be
stayed until the appointment of a next friend in his place.
Where the pleader of such minor omits, within a reasonable
time, to take steps to get a new friend appointed, any
person interested in the minor or in the matter in issue may
apply to the Court for the appointment of one, and the
Court may appoint such person as it thinks fit^.
3 . 3 . 6 Course t o be f o l l o w e d w h e n m i n o r b e c o m e s
major
A minor plaintiff or a minor not a party to a suit on whose
behalf an application is pending shall, on attaining majority,
elect whether he will proceed with the suit or application.
Where he elects to proceed with the suit or application, he
shall apply for an order discharging the next friend and for
leave to proceed in his own name. The title of the suit or
application shall in such case be corrected so as to read
henceforth thus:
i R u I e 11(1) of Order 3 2
2 Rule 11(2) Ibid
3 Rule 10 O r d e r 32
137
"A.B., late a minor, by C. D., his next friend, but now
having attained majority."
Where he elects to abandon the suit or application, he shall,

if a sole plaintiff or sole applicant, apply for an order to
dismiss the suit or application on repayment of the costs
incurred by the defendant or opposite party or which may
have been paid by his next friend. Any application under
this rule may be made ex parte but no order discharging a
next friend and permitting a minor plaintiff to proceed in his
own name shall be made without notice to the next friend^.
Where a minor co-plaintiff on attaining majority desires to

repudiate the suit, he shall apply to have his name struck
out as co-plaintiff; and the Court, if it finds that he is not a
necessary party, shall dismiss him from the suit on such
terms as to costs or otherwise as it thinks fit. Notice of the
application shall be served on the next friend, on any co-
plaintiff and on the defendant. The costs of all parties of
such application, and of all or any proceedings theretofore
had in the suit, shall be paid by such persons as the Court
directs. Where the applicant is a necessary party to the
suit, the Court may direct him to be made a defendant^.
1 Rule 12 Order 32
2 Rule 13 Order 32
138
A minor on attaining -majority may, if a sole plaintiff, apply
that a suit instituted in his name by his next friend be
dismissed on the ground that it was unreasonable or
improper. Notice of the application shall be served on ail
the parties concerned; and the Court, upon being satisfied
of such unreasonableness or impropriety, may grant the
application and order the next friend to pay the costs of all
parties in respect of the application and of anything done in
the suit, or mal<e such other order as it thinks fit^
The present chapter has covered two important areas of

civil law relating to children viz. (i) position of child in
various contractual relations or say commercial
transactions, and (ii) position of child in torts. This Chapter
also deals with position of child in civil procedural law. I t is
submitted that the reference to various statutory provisions
and judicial decisions make it clear that the children are
sufficiently protected in civil laws in India. Earlier the
protection to the children was granted even at the cost of
adults. Though the concept has slightly been changed over
the years during last century, still the present position of
laws in this context is not detrimental to the rights and
interests of the children.
1 Rule 14 Ibid
139
Chapter - 4
CRIMINAL LAWS
4.1 Provisions in Indian Penal Code
4.1.1 General Provisions
4.1.2 Specific Offences Against Children
4.1.2.1 Abetment of suicide of child
4.1.2.2 Offences relating to Birth of the Child
4.1.2.3 Offences relating to kidnapping of a child
4.2.1.4 Child trafficking for prostitution etc.
4.1.2.5 Child rape
4.2 Juvenile Justice (Care and Protection of

Children) Act, 2000
4.2.1 Juvenile Delinquency
4.2.2 Juvenile Justice viz-a-viz Juvenile Justice Act
4.2.3 Juvenile Justice Act, 1986
4.2.4 Juvenile Justice (Care and Protection of Children)
Act, 2000
4.2.5 Structure of Juvenile Justice (Care and Protection of
Children) Act, 2000
4.2.5.1 Who is Juvenile?
4.2.5.2 Determination of the age of the Juvenile
4.2.5.3 Juvenile in Conflict with Law
4.2.5.4 Juvenile in need of care and protection
4.2.5.5 Juvenile Justice Philosophy
4.2.5.6 Child and Capital Punishment
4.2.5.7 Right to privacy
4.3 Provisions relating to Child under Code of

Criminal Procedure
4.4 Provisions relating to Child under Indian

Evidence Act, 1872
4.4.1 Introduction
4.4.2 Who may testify?
140
Chapter - 4
THE P O S I T I O N OF C H I L D UNDER
C R I M I N A L LAWS
Children brought up in a laving^ disciplined environment

end up respecting their parents more and become law-
abiding citizens.
If discipline were prctcticed in every home, juvenile

delinquency would be reduced by 95%,
- J. Edgar Hoover
Indian has a connplex criminal justice system. Therefore,

the study of position of child in substantive cnm'ma] laws
can be divided Into following heads for the sake of
convenience.
1, Provisions relating to child In Indian Penal Code

2. Provisions relating t o child in Juvenile Justice Act
4 . 1 Provisions in I n d i a n Penal Code
Lord Macaulay is said to be the architect of the present

Indian Penal Code. The draft of Indian Penal Code was
prepared between 1833-1837 by the first Law Commission
of India. Lord Macaulay was the President of the said
141
Commission. Subsequently, this draft was further revised in
1846-47 by another Commission appointed for the purpose.
It was re-revised again in 1854 by Bethune and Peacocl<,
who were Law Members of Governor-Generai's Council, And
the bill was finally passed on 6^^ October 1860. The work
done in Indian Penal Code, 1860 was so perfect that over
the period 150 years of its making, very few amendments
were required to be made in it. I t has been serving the
purpose very effectively even today.
The present Indian Penal Code, 1860 (hereinafter referred

to as the Code or IPC for the sake of brevity and
convenience) has been divided into XXIII Chapters
containing 511 sections. It applies to every person
irrespective of caste, creed or religion. It postulates itself to
be a fundamental substantive criminal law of India. It is a
self contained comprehensive Code, and embodies almost
all kinds of crimes against body, property and also the
wrongs against the State.
'Actus non facit reum, nisi mens sit rea/ is a well known
maxim in criminal jurisprudence. Thus unless the mind is
guilty no crime is committed. However, presence of mens
rea is not a hard and fast rule and the requirement can be
relaxed by making the specific provision in the statute in
that behalf. But as a general rule, mental element in
142
commission of crime plays a very vital role. The maxim
actus non facit ream, nisi mens sit rea has, however, no
application to the offences under the Penal Code in its
purely technical sense because the definitions of various
offences contain expressly propositions as to the state of
mind of the accused^.
The Code does not define the term 'crime'. In its broader
sense, however, it may be explained as an act of
commission or omission which is baneful to the society in
general. But all acts tending to prejudice the community are
not ' c r i m e ' unless they are punishable^. The term 'crime',
therefore, is a very relative term and is not capable of
having any exact connotation. Some authors and jurists
have attempted to define the term ' c r i m e ' as per their
perception as under^ :-
According to Halsbury, ''Crime is an unlawful act which is an

offence against the public and the perpetrator of that act is
liable to legal punishment."
Blackstone defines crime as, "a violation of the public rights

and duties due to the whole community, considered as a
community."
^ Ralanlal & Dhirajlal's Indian Penal Code - 28* Ed. pp.viii

^ Tondon M.P., Indian Penal Code, 19"^ Ed. pp. 31
^ Paranjape N. V., Criminology Penology, 12* Ed. 2005
143
As per Tappan, "Crime is an intentional act or omission in
violation of criminal law, committed without any defence or
justification and penalty by the law as felony or
misdemeanour."
According to Kenny, "Crimes are wrongs whose sanction Is

punitive, and is in no way remissible by any private person,
but is remissible by the Crown alone, if remissible at all."
As per Cross and Jones, "Crime Is a legal wrong the remedy

for which is punishment of the offender at the instance of
the State."
Thus, different authors have defined the term 'crime'

differently. However, by and large, one thing is common in
all definitions i.e. it comprises two essentials - (i) it is a
wrong against the society at large and (11) it is punishable
by law.
The Code, however, defines the term ' offence' to mean a

thing made punishable by this Code^ or under any special
or local law.
^ Section 40 of Indian Penal Code, I860

144
The Code contains several specific provisions relating to
children. The Code has used both the term 'child' as well as
' minor'. The relevant provisions in Chapter IV of IPC
exempts children of certain age from criminal liability. Some
provisions of the Code provide for offences by minors and
some provisions provide for offences against minor. These
provisions have been discussed hereunder, so as to
understand clearly the position of child under IPC.
4 . 1 . 1 General Provisions
Section 82 of Indian Penal Code deals with act of a child
under seven years of age. This section makes it clear that
"nothing is an offence which is done by a child under seven
years of age".
This provision confers upon the child absolute immunity

from criminal liability. A child under seven years of age, by
presumption of law, doli incapax, and cannot be endowed
with any discretion. In any prosecution against such child,
the proof that he is below the age of seven years, would
ipso facto be an answer to the prosecution. Thus, to put the
proposition under this provision in single line Is ' nothing is
an offence which is done by a child under seven years of
age'.
145
Section 83 of the Code deais with act of a child above seven
and under twelve of immature understanding. It says that
nothing is an offence which is done by a child above seven
years of age and under twelve, who has not attained
sufficient maturity of understanding to judge of the nature
and consequences of his conduct on that occasion.
This provision states that a child shall not incur criminal

liability for his acts if he is between the age group of seven
and twelve years. However, to absolve criminal liability of
the child it must further be proved that he has not attained
sufficient maturity of understanding to judge of the nature
and consequences of his conduct. Thus, this provision also
confers upon a child immunity from criminal liability but this
immunity is conditional and not absolutely unlike Section
82. This immunity is dependant upon the maturity of
understanding of the child. When it is proved that he has
attained the sufficient maturity of understanding the
consequences of his act, he shall be liable criminally. This
can be proved by circumstances too. For instance, where a
child of 9 years stole a necklace and immediately sold it to
another person, can be convicted as his act of selling the
necklace shows that he has attained sufficient maturity^
However, where a child In question has not attained
maturity of understanding the consequences of his acts.
' Krishna (1883) 6 Mad. 373 cited in Ratanlal & Dhirajlal - Indian Penal Code - 28'*' Ed.
146
then the immunity shall be as absolute as it is under
Section 82 of the Code^ Further is immunity ceases upon
attaining the age of 12 years. After 12 years there shall be
no such exemption from criminal liability and the minor
shall be treated at par with adults for his acts.
Under English Law the position is that the child between the
age of 7 and 14 years is considered to be doli incapax. A
child, under English Law, cannot be charged for rape and
buggery. They have a rule of ' mischievous discretion' which
corresponds with the term ' m a t u r i t y of understanding'
under Indian Law. Further under Indian Law, unlike English
law, even a minor under 14 can be convicted for rape.
Thus the age of the child below 12 years is of great

consideration for determining the guilt of the accused child.
However, this does not mean that the age is an irrelevant
factor when the child exceeds 12 years of his age but still is
a minor. The court shall take into account his tender age
while passing the sentence. By the way, in the year 1986,
Juvenile Justice Act, 1986 was passed which governed the
offences committed by the juveniles of both the sexes
below the age of 16 years. The said Act was replaced by
Juvenile Justice (Care and Protection) Act, 2000 which
AIR 1919 Bom. 173, ibid.

147
provides the age of juvenile to be 18 years for male as well
as female.
Section 89 deals with the act done i n g o o d faith for benefit

of child or insane person, by or by consent of guardian.
According to this section, nothing which is done in good
faith for the benefit of a person under twelve years of age,
or of unsound mind, by or by consent, either express or
Implied, of the guardian or other person having lawful
charge of that person. Is an offence by reason of any harm
which it may cause, or be intended by the doer to cause or
be known by the doer to be likely to cause to that person.
However, first proviso to this section makes it clear that

this exception shall not extend to the intentional causing of
death, or to the attempting to cause death. Second proviso
to the said section further adds that this exception shall not
extend to the doing of anything which the person doing it
knows to be likely to cause death, for any purpose other
than the preventing of death or grievous hurt, or the curing
of any grievous disease or infirmity. Third proviso says that
this exception shall not extend to the voluntary causing of
grievous hurt, or to the attempting to cause grievous hurt,
unless it is for the purpose of preventing death of grievous
hurt, or the curing of any grievous disease of infirmity.
Fourth proviso states that this exception shall not extend to
148
the abetment of any offence, to the committing of which
offence it would not extend.
Illustration : A, in good faith, for his child's benefit without

his child's consent, has his child cut for the stone by a
surgeon. Knowing it to be likely that the operation will
cause the child's death, but not intending to cause the
child's death. A is within the exception, inasmuch as his
object was the cure of the child.
Thus, if parent or guardian inflict reasonable harm in the

form of punishment for regulating the bad conduct or
behaviour of their child, then they would not be liable for
any offence against minor provided such act is done in good
faith and it is prima facie for the benefit of the child. We
may extend this analogy to the teacher-student relationship
too. Because when the child is sent to the school and is in
custody of his schoolteacher, there Is implied consent by
the parents thereby authorizing the teacher to inflict
reasonable harm in the form of punishment (for instance a
slap in the face etc.), prpvided such punishrnent is
reasonable and for the benefit of the child.
Section 90 deals with consent known to be given under fear

or misconception. It says that a consent Is not such a
consent as it intended by any section of this Code, if the
149
consent is given by a person under fear of injury, or under
a misconceptioa of fact, and if the person doing the act
knows, or has reason to believe, that the consent was given
in consequence of such fear or misconception.
Consent of insane person:- A consent is not such a

consent as it intended by any section of this Code, if the
consent is given by a person who, from unsoundness of
mind, or intoxication, is unable to understand the nature
and consequence of that to which he gives his consent; or
Consent of child:- A consent is not such a consent as it

intended by any section of this Code, unless the contrary
appears from the context, if the consent is given by a
person who is under twelve years of age.
This section makes it clear that the consent of a child below

twelve years of age, is no consent. The reason is obvious
and logical. The child below 12 years is quite immature and
cannot understand the consequences of his consent upon
his interests. However, if overall effect of this provision is
taken into account, it appears that this age limit also
requires reconsideration and the age should be raised at
least to 15 years.
150
4 . 1 . 2 Specific Offences Against Children
Now, it would be expedient to briefly discuss the offences
against the child as set out in specific provisions of Indian
Penal Code, 1860. These provisions have been analyzed
section-wise with the help of case laws, wherever available,
so as to have clear idea as to what extent Code protects
children.
So far as the offences against children are concerned, such

offences are not only of legal significance but rather they
are of great social significance. Offence committed against a
child during his tender age has a great penetrating effect on
the child psychology. Therefore, the provisions of law
should provide such heavy punishment for the wrongdoer
that not only the wrong is remedied but it should have a
vital deterrent effect to as to set an example for potential
wrongdoers as consequently to prevent the perpetuation of
such wrongs against the children of tender age. Various
kinds of criminal wrongs may be committed against the
children. The list may be endless and therefore it would not
be expedient to enumerate all those wrongs but an attempt
has been made hereunder to classify such wrongs by taking
the provisions of IPC as foundation for such classification.
Thus such crimes as envisaged by IPC against the child can
be classified as under:-
151
A. Abetment of suicide of clilld
B. Offences relating to birth of a child
C. Offences relating to kidnapping of a child
D. Child trafficking for prostitution etc.
E. Child rape
4 . 1 . 2 . 1 Abetment of suicide of child
Section 305 of IPC deals with abetment of suicide of child or

insane person. This section says that, " I f any person under
eighteen years of age, any insane person, any delirious
person, any idiot, or any person in a state of intoxication,
commits suicide, whoever abets the commission of such
suicide, shall be punished with death or imprisonment for
life, or imprisonment for a term not exceeding ten years,
and shall also be liable to fine."
Suicide itself is not a punishable crime under IPC for the

simple reason that the person no longer remains in
existence and therefore cannot be prosecuted and punished
in accordance with law. This, however, does not mean that
suicide is not a criminal wrong. I t is a wrong but for the
said reason, the punishment for the wrong cannot be
inflicted. Though actual commission of suicide is not
punishable, still the attempt to commit suicide as well as
152
abatement to commit suicide is a punishable wrong by
virtue of Sections 309, 305 and 306 of IPC.
These provisions have been inserted because ordinary law

of abatement is inapplicable. They apply when suicide is in
fact committed^.
The controversy as to constitutional validity of punishment

for suicide has been now set at rest by the Supreme Court
in Gian Kaur V. State of Punjab^.
4 . 1 . 2 . 2 Offences relating to Birth of the Child
The offences relating to the birth of a child have been dealt

with under following provisions of the Code.
Culpable homicide:
The causing of the death of child In the mother's womb Is
not homicide. But It may amount to culpable homicide to
cause the death of a living child, if any part of that child has
been brought forth, though the child may not have
breathed or been completely born^.
' Ratanlal and Dhirajlal, Indian Penal Code, 28"" Ed.

^ AIR 1996 SC 946
^ Explanation 3 to Section 299 of Indian Penal Code, 1860
153
This provision makes distinction between two situations viz.
(i) death of a child caused while in mother's womb, and (Vi)
causing death of a child born alive. It makes it clear that
causing death of child in the mother's womb Is not homicide
under Section 299. This is because there is a separate
specific provision to deal with this situation. That provision
is Section 315, which we shall discuss later on. However,
when the death of a child is caused after its any portion has
come out of its mother's womb, eve if it is not fully born, it
shall be a culpable homicide.
Causing miscarriage :- Whoever voluntarily causes a

woman with child to miscarry, shall, if such miscarriage be
not caused in good faith for the purpose of saving the life of
the woman, be punished with imprisonment of either
description for a term which may extend to three years, or
with fine, or with both, and, if the woman be quick with
child, shall be punished with imprisonment of either
description for a term which may extend to seven years,
and shall also be liable to fine^
Explanation to this provision makes it clear that a woman

who causes herself to miscarry. Is within the meaning of
this section.
' Section 312 Ibid
154
Causing miscarriage without woman's consent:-
whoever commits t h e offence defined in the last preceding
section without the consent of the woman, whether the
woman is quick with child or not, shall be punished with
imprisonment for life or with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine^.
Death caused by act done w i t h intent to cause

miscarriage: - whoever, with intent to cause the
miscarriage of woman with child, does any act which causes
the death of such woman, shall be punished with
imprisonment of either description for a term may extend to
ten years, and shall also be liable to fine^.
I f act done w i t h o u t woman's consent:- And if the act is

done without the consent of the woman, shall be punished
either with imprisonment for life or with the punishment
above mentioned.
Explanation to this provision adds that it is not essential to

this offence that the offender should know that the act is
likely to cause death.
Section 313 of Indian Penal Code, 1860

Section 341 ibid
155
Act done w i t h intent to prevent child being born alive
or to cause it to die after birth: - Whoever before the
birth of any child does any act with the intention of thereby
preventing that child from being born alive or causing it to
die after its birth, and does by such prevent that child from
being born alive, or causes it to die after its birth, shall. If
such act be not caused in good faith for the purpose of
saving the life of the mother, be punished with
imprisonment of either description for a term which may
extend to ten years, or with fine, or with b o t h \
Causing death of quick unborn child by act amounting

to culpable homicide:- whoever does any act under such
circumstances, that If he thereby caused death he would be
guilty of culpable homicide, and does by such act cause the
death of a quick unborn child, shall be punished with
extend to ten years, and shall also be liable to fine^.
Illustration: A, knowing that he Is likely to cause the death

of a pregnant woman, does an act which, if It caused the
death of the woman, would amount to culpable homicide.
The woman is injured, but does not die, but the death of an
' Section 315 of Indian Penal Code, 1860

^Section 316 ibid
156
unborn quick child witli which she is pregnant is thereby
caused. A is guilty of the offence defined in this section.
Exposure and abandonment of child under twelve

years, by parent or person having care of it.- Whoever
being the father or mother of a child under the age of
twelve years, having the care of such child, shall expose or
leave such child in any place with the intention of wholly
abandoning such child, shall be punished with imprisonment
of either description for a term which may extend to seven
years; or with fine, or with both^.
Explanation to this provision provides that this section is

note intended to prevent the trial of the offender for murder
or culpable homicide, as the case may be, if the child die in
consequence of exposure.
Concealment of birth by secret disposal of dead body.

- whoever, by secretly burying or otherwise disposing of the
death body of a child whether such child die before or
during its birth, intentionally conceals or endeavours to
conceal the birth of such child, shall be punished with
extend to two years, or with fine, or with both^.

^ Section 318 of Indian Penal Code, 1860
157
Since these provisions have already been discussed in detail
in the subsequent Chapter (i.e. Chapter No. 7) 'Position Of
An Unborn Child in Law', it would not be necessary to
discuss and analyse all these provisions here again.
4.1.2.3 Offences relating to kidnapping of a cliild
Safety and security of person and property is of prime

concern for every individual since the very beginning. The
laws of every country provide for safety and security of its
citizens. In India, personal liberty is a Fundamental Right as
guaranteed under Article 19 as well as Article 21 under
Indian Constitution. Thus, even the State cannot infringe
the personal liberty of its subjects without due process of
law. Similarly, civil laws - for instance law of Torts (Assault,
Battery, Wrongful Restraint, False Imprisonment) and the
criminal laws - for instance Indian Penal Code have
provisions to ensure the personal liberty of a person.
Personal liberty is an invaluable and inalienable right of
every individual, the violation of which is a legal wrong.
Every year thousands of cases of kidnapping are reported.

In most of the cases, our law enforcement agency fails to
trace out the kidnapped child. It is found that kidnapping of
children Is an organized crime that takes place with perfect
158
planning and full-proof actions. The persons at action point
observe the child to be kidnapped for some time. They find
out the personal details of the child along with information
relating to its daily activities, time of school and tuitions
etc. After observing the child for some time, they put their
plan in action. When a child is kidnapped its misery starts.
Most of the kidnapped children are made physically
handicapped and they are thrown in bagging business. The
earnings of the children by bagging are taken away by the
master. In return they are given only some food and torn
cloths to wear.
The website of the leading newspaper The Times of India^

reveals the number of kidnapping cases taken place during
1992 to 2004 in the State of Bihar. The same has been
reproduced herebelow:-
Year Cases Kidnapping for ransom Total
1992 2038 295 2333
1993 2387 290 2677
1994 2309 398 2707
1995 2182 346 2528
1996 2420 340 2760
1997 2472 342 2814
1998 2323 412 2735
1999 2145 345 2490
^ http://timesofindia.indiatimes.coin/articleshow/1001952.cms
159
2000 2237 418 2655
2001 1689 385 2074
2002 1948 396 2344
2003 1956 335 . 2291
2004 1583 294 1877
The above figures speak of kidnapping cases only in the

State of Bihar alone. We can imagine what would be the
total quantum every year all over India. Further the figures
above are of reported cases, therefore there is reasonable
apprehension that the actual figure may be much more
than this. This is because in many cases the complaint is
not filed with police due to one reason or another.
As mentioned above, there are detailed provisions relating

to kidnapping in Indian Penal Code. Kidnapping is of two
kinds: - kidnapping from India, and kidnapping from lawful
guardianship^. Section 360 of IPC defines kidnapping from
India. Accordingly, "Whoever conveys any person beyond
the limits of India without the consent of that person, or of
some person legally authorized to consent on behalf of that
person is said to kidnap that person from India".
Section 361 defines kidnapping from lawful guardianship.

Accordingly, "Whoever takes or entices any minor under
' Section 359 of Indian Penal Code, I860
160
sixteen years of age if a male, or under eighteen years of
age if a female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or person of
unsound mind, without the consent of such guardian, is said
to kidnap such minor or person from lawful guardianship."
Explanation to Section 361 makes it clear that the words

"lawful guardian" in this section include any person lawfully
entrusted with the care of custody of such minor or other
person.
Exception to the said section further clarifies that this

section does not extend to the act of any person who in
good faith believes himself to be the father of an
illegitimate child, or who In good faith believes himself to be
entitled to lawful custody of such child, unless such act is
committed for an immoral or unlawful purpose.
The punishment for kidnapping a child is provided under

Section 363 of the Act. Accordingly whoever kidnaps any
person from lawful guardianship, shall be punished with
extend to seven years, and shall also be liable to fine.
The object of this provision is to punish a person who has

kidnapped a child of tender age from the lawful
161
guardianship for an unlawful purpose. The offence becomes
complete when the child is taken out of lawful custody of
the guardian. The offence under this provision is not a
continuing offence. Further, how far that child has been
taken away i.e. distance, is immaterial. This provision has
used the word 'entices'. I t is not necessary that taking or
enticing must be by means of force or fraud^. The word
entice implies an idea of Inducement or allurement by
exciting hope or desire in the other. The consent of the
minor Is immaterial as the minor is deemed to be incapable
of giving consent In such cases. However, when a minor
accompanies a person voluntarily, the said person cannot
be held guilty of kidnapping^. In order to attract the offence
of kidnapping, something more has to be proved than mere
joining of the accused with the girl. An active participation
by the accused in the formation of the intention of the girl
either immediately prior or sometime before she left her
father's house. Is required to be established^.
Age of minor
For the purpose of application of these provisions the age of
minor has been prescribed, for female as 18 years and for
male 16 years.
' Karia A. N., Laws Relating to the Welfare and Protection of Women and Children, 2006
^ Paramjit Singh v. State of HP, 1987 Cri L J 1266 (HP)
^ Khayali Ram v. State of HP, 1979 Or U 620 cited in See Indian Penal Code - by M. P. Tondon,
20* Ed.
162
Lawful Guardian
The provisions states that the minor must have been taken
out of the custody of his lawful guardian. The term used in
the Statute is Mawful guardian' and not 'legal guardian'.
The term lawful guardian is a much more wider and general
term than the expression Megal guardian'. 'Legal guardian'
would be parents or guardians appointed by courts. Lawful
guardian would include within its meaning not only legal
guardians, but also such persons like a teacher, relatives
etc, who are lawfully entrusted with the care and custody of
a minor^. Entrustment which Section 361 requires may be
inferred from a well-defined and consistent course of a
conduct governing the relation of the lawful guardian
alleged in the indictment and of the minor. In other words,
entrustment may be proved not by oral evidence but also
by surrounding circumstances and the conduct of the
parties concerned^. It must be remembered that the
offence under this section cannot be committed by a parent
who takes away his unmarried child who is under the age of
majority. However, a parent may be guilty of kidnapping his
child If that child had attained majority or has lawfully
married under that age, since in either case the child has
passed out of the possession of his parents^.
' See PSA Pillai's Criminal Law - By V. Suresh and D. Nagasaila, 9^^ Ed.
^ Tondon M. P., Indian Penal Code, 20"^ Ed.
3
Tondon M. P., Indian Penal Code, 20'*' Ed.
163
Kidnappina or maiming a minor for purposes of
begging
The earlier provisions discussed hereinabove deal with
kidnapping a minor from lawful guardianship for improper
purposes. These sections define kidnapping and provide for
penalty to be imposed on the wrongdoer. However,
subsequent provisions deal with specific offences relating to
kidnapping. As we know that kidnapping has, in most of the
cases, some object behind it. The object may be seduction,
inducing minor to marry with the kidnapper or with any
other person, to kill the child kidnapped or kidnapping a
child for ransom. However, the most prevalent object of
kidnapping a child in India is to use such child for begging
purposes. Even law takes cognizance of this fact therefore
Section 363A was inserted in IPC vide Amendment Act, No.
52 in the year 1959. The object clause of this amendment
read as, "to put down effectively the evil of kidnapping of
children for exploiting them for begging, the provisions
existing in the Penal Code are not quite adequate. There is
also no special provision for deterrent punishment for the
greater evil of exploiting children so as to make them object
of pity,"^ Thus this provision was introduced to counter the
growing of 'organized bagging', wherein unscrupulous
' See also Karia A. N., Laws Relating to the Welfare and Protection of Women and Children, 2006
164
persons were abducting children and maiming them for the
purpose of begging-^. The said section reads as under:-
3 6 3 A . (1) Whoever kidnaps any minor or, not being the

lawful guardian of a minor, obtains the custody
of the minor, in order that such minor may be
employed or used for the purpose of begging
shall be punishable with imprisonment of either
description for a term which may extend to ten
years, and shall also be liable to fine.
(2) Whoever maims any minor in order that such
minor can be employed or used for the purposes
of begging shall be punishable with
imprisonment for life, and shall also be liable to
fine.
(3) Where any person, not being the lawful guardian
of minor, employs or uses such minor for the
purpose of begging, it shall be presumed, unless
the contrary is proved, that he kidnapped or
otherwise obtained the custody of that minor in
order that the minor might be employed or used
for the purposes of begging.
(4) In this section -
(a) "Begging" means;
See PSA Pillai's Criminal Law - By V. Suresh and D. Nagasaila, 9* Ed.
165
(i) Soliciting or receiving alms in a public
place, whether under the pretence of
singing, dancing, fortune-telling,
performing tricks or selling articles or
otherwise;
(ii) Entering on any private premises for
the purpose of soliciting or receiving
alms;
Exposing or exhibiting, with the
object of obtaining or extorting alms,
any sore, wound, injury, deformity or
disease, whether of himself or of any
other person or of an animal;
(iil) Using a minor as an exhibit for the
purpose of soliciting or receiving
alms;
(b) "Minor" means-
(i) In the case of a male, a person under
sixteen years of age; and
(ii) In the case of a female, a person
under eighteen years of age.
This section may be regarded as a self contained code for

the purpose of combating the specific wrong against child of
kidnapping them for the purpose of begging. The reason Is
this section not only defines the term 'begging' but it also
166
separately defines the term ' m i n o r ' for the purpose of
application of this provision. Accordingly, for the purpose of
this section, the term minor means, in the case of a male, a
person under sixteen years of age; and in the case of a
female, a person under eighteen years of age. The term
' begging' as mentioned above. Is also used in Its widest
possible connotation so as to include all forms of begging.
KidnaPDina or abducting in order to murder

Kidnapping, as mentioned above, may be committed with
different intentions. One of the gravest offence is
kidnapping in order to murder. This has been dealt with
under Section 364 of the Act, which reads as under :-
"Whoever kidnaps or abducts any person in order that
such person may be murdered or may be so disposed
of as to be put in danger of being murdered, shall be
punished with imprisonment for life or rigorous
Imprisonment for a term which may extend to ten
years, and shall also be liable to fine."
Xliustrations
(a) A kidnaps Z from India, Intending or knowing it
to be likely that Z may be sacrificed to an idol. A
has committed the offence defined in this
section.
167
(b) A forcibly carries or entices B away from his
home in order that B may be murdered. A has
committed the offence defined in this section.
This provision gives stress on the intention of the

l<idnapper. The act must have been done with an intention
to l<ill the child kidnapped. For the application of this
provision, it is Immaterial whether the child kidnapped Is
actually murdered or not. When a child is kidnapped with an
Intention to kill it, the offence under this section is
complete. When the actual murder takes place, the
wrongdoer shall be punishable both for this provision as
well as provisions relating to homicide.
Kidnapping for ransom, etc-

Sometimes the children are kidnapped for extracting money
from their parents. The kidnapper, after kidnapping the
child, threatens the parents to kill or hurt the child
kidnapped so as to bring pressure on them to submit to
whims. Such acts are envisaged by Section 364A of the
Code. It reads as under :-
"Whoever kidnaps or abducts any person or keeps a

person in detention of the such kidnapping or
abduction and threatens to cause death or hurt to
such person, or by his conduct gives rise to a
168
reasonable apprehension that such person may be put
death or hurt, or causes hurt or death to such person
in order to compel the Government or any foreign
State or international inter-governmental organization
or any other person to do or abstain from doing any
act or to pay a ransom, shall be punishable with
death, or Imprisonment for life, and shall also be liable
to fine."
Kidnapping or abducting with intent secretly and

wrongfully to confine person
Where a child has been kidnapped with the Intention of
secretly and wrongfully confining it, the offence is said to be
committed under Section 365 of the Code which reads as
under :-
"Whoever kidnaps or abducts any person with intent
to cause that person to be secretly and wrongfully
confined, shall be punished with imprisonment of
either description for a term which may extend to
seven years, and shall also be liable to fine."
Kidnapping, abducting or Inducing w o m a n to compel

her marriage, etc-
Now this is something comparatively more serious and has
been the subject matter of various judicial
pronouncements. When a minor girl (though this provision
169
and applies to major woman, that has not been
contemplated under this study and therefore not referred
to) has been kidnapped with the intention that such child
may be or likely to be compelled to marry any person
against her will or in order that she may be forced or
seduced to illicit intercourse, the offence is said to be
committed under Section 366 of the Code. The said section
reads as under :-
"Whoever kidnaps or abducts any woman with intent

that she may be compelled, or knowing it to be likely
that she will be compelled, to marry any person
against her will, or in order that she may be forced or
seduced to illicit intercourse, or knowing It to be likely
that she will be forced or seduced to illicit intercourse
shall be punished with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine; and whoever, by
means of criminal intimidation as defined in this Code
or of abuse of authority or any other method of
compulsion, induces any woman to go from any place
with intent that she may be, or knowing that it is
likely she will be, forced or seduced to illicit
intercourse with another person shall be punished as
aforesaid."
170
Almost everyday, the news are reported in newspapers that
a male eloped with a minor girl by promising her to marry
and parents of the girl filed a compliant against the male
and his parents, friends etc. for kidnapping under S. 366 of
IPC. The male partner is also charged with rape, wrongful
confinement, seduction etc.
The present section envisages two things viz. (1) when a

minor girl has been kidnapped with an intention to compel
her to marry any person or when she is likely to be
compelled to marry someone against her will, and (2) when
a minor is girl kidnapped in order that she may be forced or
seduced to illicit intercourse or knowing it to be likely that
she will be forced or seduced to illicit intercourse.
The wrongdoer under this section may be punished with

extend to ten years, and shall also be liable to fine.
In Vardarajan V. State of Madras^, a minor girl studying

in B.Sc. I I year, developed intimacy with one V, a major,
who was her neighbour. S confined to her elder sister that
she desired to marry V. When the sister passed on this
information to her father, the latter became furious,
questioned S and ultimately send her away to the home of
• AIR 1965 SC 942 cited in Children and Legal Protection, by Prof. Paras Diwan
171
a relative who lived away at some distance. On the next
day S left the home of her relative and telephoned to V
asl<ing him to meet her on a certain road in that area and
then herself went to that road. By the time she got there V
had reached there in his car. She got into the car and then
both of them drove to a friend of V whom they picl<ed up
and went to the office of the Registrar of deeds where they
got registered an agreement to marry each other - it seems
that the parties thought that in law such an agreement was
sufficient to make them man and wife. Thereafter S and V
stayed in a Hotel for the night and then visited several
places. In this manner they lived as husband and wife for
about a month. Meanwhile the father of S had lodged a
complaint with police that his daughter S, a minor, could
not be found. The police took up the investigation and
ultimately succeeded in apprehending S and V at Tanjore.
The Supreme Court observed that in the entire episode
every essential step was taken by S herself: apparently her
one and the only Intention was to become V's wife and thus
to be In a position to be always with him. In view of this, it
could not be said that V took S out of the keeping of her
father, the lawful guardian. Since S willingly accompanied
V, the law did not cast upon V any duty of taking her back
to her father's home, or even of telling her not to
accompany him.
172
Another important relevant case is that of Thakaral D.
Vadgama V. State of Gujarat^ The brief facts of this case
were that a rich industrialist had induced a minor girl of 16
to leave her home and come to his garage to have illicit
intercourse with him. In this case, the Supreme Court
affirmed the confliction under Section 366 of IPC passed by
the trial court and the High Court. The accused came into
contact with the family of girl's father, held out hope of
appointing him as the manager of a new factory, which he
was going to start at Mount Abu and Ahmedabad and
stayed in big hotel spending lavishly. He also presented
Mohini, the concerned girl, with a parker pen, skirt, silver
waist band etc. He was actually found on Mohini's bed by
her other at Mount Abu and his connection with Mohini was
suspected, and inspite of the mother's grave protest, he
was in correspondence with her without the knowledge of
her parents. Mohini was a schoolgirl of immature
understanding having entered her sixteenth year less than
a month before the incident, and out of emotion, she wrote
letters to the accused exaggerating incidents of rebuke and
beatings by her mother. The accused took advantage of her
immature feelings and induced her to come to his house on
an appointed day. She came, and was taken to his garage
and then she was induced to go to the public road by the
accused when the police party came with her father. The
^ 1973(2) s e c 416 cited in PSA Pillai's Criminal Law - By V. Suresh and D. Nagasaila, 9"* Ed.
173
accused falsely denied her presence in his house but some
of her cloths, her school exercise books etc. were taken
from the garage, where she had been asked to remain by
the accused. The court remarked Mohlni's mother's
dignified protest letter to the accused indicated how the
mother of the girl belonging to a comparatively poorer
family felt, when confronted with a rich man's
dishonourable behaviour towards her young impressionable,
immature daughter. The Supreme Court distinguishing the
ruling in Vardarajan's case clarified that the word 'takes'
does not necessarily cannot taking by force and it is not
confined to the use of force, actual or constructive. These
words merely mean ' t o cause to go, to escort' or ' t o get
into possession'.
Again recently in Moniram Hazarika V. State of Assam^

Section 366 read with Section 361 came up for
interpretation before the Hon'ble Supreme Court. In this
case the appellant was convicted by trial court under
Section 366 of IPC. An appeal was preferred against the
judgement of trial court before the High Court of GauhatI,
which was ultimately dismissed. Aggrieved by the same,
appellant preferred further appeal before the Hon'ble
Supreme Court. The brief facts of the case were that one
Mr. Paresh Shikia lodged a complaint in Bebarapara Police
(2004)5SCC120
174
Outpost alleging that his younger sister Blbl Salkla who was
a minor had been kidnapped by the appellant who was also
a resident of the same village. On the basis of complaint
and subsequent investigation, a charge-sheet was filed
under Section 366 of IPC before the trial court. The victim
was a student of V l l l t h Std. at that time and was a minor.
The complainant came to know from his brother that his
sister (victim in the present case) was missing and he was
also informed that she was seen in the company of the
appellant in the locality. So suspecting the appellant of
having kidnapped his sister, he went to the house of the
appellant where he was not allowed to enter the house by
the appellant and his brother. However, he noticed that
arrangements were made for performing a marriage
ceremony. In support of his statement that the victim was
minor, he produced her school certificates. The victim was
also subjected to the medical examination, and the doctor
who examined her also opined that she was under the age
of 18 years. The victim herself had stated in her statement
that on the date of incident when she had gone out to
answer the call of nature the appellant by force took her to
his house wherein his mother and sister-in-law were
present who made her change her dress and put vermilion
on her forehead and prepared her for the marriage with the
appellant. On the basis of above evidence the trial court
and High Court came to the conclusion that on the date of
175.
the incident victim was a minor and the act of the appellant
in taking her with the object of getting her married to him
amounted to an offence punishable u/s 366 of IPC and
hence found him guilty*an sentenced him for RI for three
years and a fine of Rs. 300, in default in payment of fine to
undergo further RI for three months.
In appeal before Supreme Court it was contended on behalf

of appellants that both the appellant and the victim were in
love for a number of years prior to the date of the incident
and she voluntarily and willingly went with him, therefore
even though she is a minor, since there was no enticement
or taking away as contemplated u/s 361 of the IPC, the
appellant cannot be held guilty of kidnapping. It was
contented that even a minor has every right to abandon the
house of the guardian and go to any place of his or her
choice and there Is no legal obligation on the person to
whose place such minor goes to restore back the minor to
the custody of the legal guardian. The appellant relied on
the judgement of S. Varadarajan V. State of Madras^
and submitted that the facts of this case are fully applicable
in the present case. He further relied on the judgement in
Paramjit Singh V. State of H.P.^, to support his
argument that when a minor accompanies a person
' AIR 1965 SC 942

^ 1987 C r i . U 1266 (HP)
176
voluntarily, the said person cannot be held guilty of
kidnapping. He further relied on the judgement of the
Calcutta High Court in Sachindra Nath Mazumder V.
Bistupada Das^, to support his contention that when a
minor child abandons his or her guardian, there is no
obligation on the person to whose custody such minor
chooses to go, return such minor to the original guardian.
However, the Supreme Court distinguished the case of S.
Varadarajan on the ground that in that case the minor had
left the house of legal guardian as per her own choice and
not on the basis of any enticement or persuasion on the
part of the accused. The minor in that case, thus had
walked out of her guardian's house without any inducement
from the accused. It was further held that in the present
case, the minor had been promised by the accused to
marry and as such induced her to come to him. While
dismissing appeal, the court observed that if the accused
played some role at any stage by which he either solicited
or persuaded the minor to abandon the legal guardianship,
it would be sufficient to hold such person guilty of
kidnapping.
Kidnapping or abducting ciiild under t e n years w i t h

Intent to steal from its person: - Whoever kidnaps or
abducts any child under the age of ten years with the
' 1978 Cri.U 1494 (Cal)
177
intention of taking dishonestly any movable property from
the person of such child, shall be punished with
extend to seven years, and shall also be liable to fine^.
4 . 2 . 1 . 4 Child trafficking for prostitution etc.
One of the gravest offences against the children is the

trafficking children for the purpose of prostitution or such
other sexual abuses. Sexual abuse of the children is
rampant in our country. But unfortunately most of the
cases do not come to the notice of the public at large.
However, it is admitted fact that now a days, and in
particular after advent of HIV AIDS, the sexual abuse of the
children has considerably increased. This is because earlier
the frequents used to visit prostitutes with comparatively
lesser fear of contracting venereal diseases. After HIV AIDS
has spread like anything, the frequents now opt for girls of
young age. This is given rise to the demand of younger and
younger girl prostitutes. Further now a days, one another
fact has come to notice for last few years that people
visiting prostitute houses are not only demanding female
children but sometimes even minor boys are demanded to
satisfy sexual desires. This perversion has resulted in
various criminal wrongs against the children including child
Section 369 of Indian Penal Code, i860
178
trafficking for prostitution etc. This aspect has further been
dealt with in detail In Chapter 6 of this study, however
some of the provisions of Indian Penal Code that can be
invoked to give partial protection to the children have been
reproduced hereunder.
Procuration of minor girl:- Whoever, by any means

whatsoever, induces any minor girl under the age of
eighteen years to go from any piace or to do any act with
intent that such girl may be, or knowing that it is likely that
she will be, forced or seduced to illicit intercourse with
another person shall be punishable with imprisonment
which may extend to ten years, and shall also be liable to
r\ne\
Importation of girl from foreign country. - Whoever

imports into India from any country outside India or from
the State of Jammu and Kashmir any girl under the age of
twenty-one years with intent that she may be, or knowing it
to be likely that she will be, forced or seduced to illicit
intercourse with another person, shall be punishable with
imprisonment which may extend to ten years and shall also
be liable to fine^.
' Section 366A of Indian Penal Code, I860

^ Secdon 366B ibid
179
Kidnapping or abducting in order to subject person to
grievous hurt, slavery, etc.- Whoever kldaaps or abducts
any person in order that such person may be subjected, or
may be so disposed of as to be put in danger of being
subject to grievous hurt, or slavery, or to unnatural lust of
any person, or knowing it to be likely that such person will
be so subjected or disposed of, shall be punished with
extend to ten years, and shall also be liable to fine^.
Wrongfully concealing or keeping in confinement,

kidnapped or abducted person: - Whoever, knowing that
any person has been kidnapped or has been abducted,
wrongfully conceals or confines such person, shall be
punished in the same manner as if he dad kidnapped or
abducted such person with the same intention or
knowledge, or for the same purpose as that with or for
which he conceals or detains such person in confinement^.
Buying or disposing of any person as slave: - Whoever

Imports, export, removes, buys, sells or disposes of any
person as a slave, or accepts, receives or detains against
his will any person as slave, shall be punished with

^Section 368 of ibid
180
extend to seven years and shall also be liable to flne^
Habitual dealing in slave: - Whoever habitually imports,

exports, removes, buys, sells, traffics or deals, shall be
punished with imprisonment for life' or with imprisonment
of either description for a term not exceeding the years,
and shall also be liable to fine^.
Selling minor for purposes of prostitution, etc-

Whoever sells, lets to hire, or otherwise disposes of any
person under the age of eighteen years with intent that
such person shall at any age be employed or used for the
purpose of prostitution or illicit intercourse with any person
or for any unlawful and immoral purpose, or knowing it to
be likely that such person will at any age be employed or
used for any such purpose, shall be punished with
extend to ten years, and shall be liable to fine^.
Explanation I to this section says that when a female under

the age of eighteen years sold, let for hire, or otherwise
disposed of to a prostitute or to any person who keeps or
manages a brothel, the so disposing of such female shall.
^ Section 370 ibid

^ Section 372 ibid
181
until the contrary is proved, be presumed to have disposed
of her with the intent that she shail be used for the purpose
of prostitution.
Explanation I I to this provision adds that for the purposes

of this section "illicit intercourse" means sexual intercourse
between persons not united by marriage or by any union or
tie which, though not amounting to a marriage, is
recognised by the personal law or custom of the community
to which they belong or, where they belong to different
communities, of both such communities, as constituting
between them a quasi -marital relation.
Buying minor for purposes of prostitution, etc.-

Whoever buys, hires or otherwise obtains possession of any
person under the age of eighteen years with intent that
such person shall at any age be employed or used for the
purpose of prostitution or Illicit intercourse with any person
or for any unlawful and Immoral purpose, of knowing it to
be likely that such person will at any age be employed or
used for any purpose, shall be punished with imprisonment
of either description for a term which may extend to ten
years, and shall also be liable to fme^.

182
Explanation I to this provisions states that any prostitute or
any person keeping or managing a brothel, who buys or
otherwise obtains possession of a female under the age of
eighteen years shall, until the contrary is proved, be
presumed to have obtained possession of such female with
the intent that she shall be used for the purpose of
prostitution.
Explanation I I to this provision further clarifies that ''Illicit

intercourse" has the same meaning as in section 372.
4.1.2.5 Child rape
Rape is not only the wrong against body but also against
the soul of a person. And hence it is treated to be one of
the gravest offences against the human body. The rape
cases in India are rampant. When such an offence is
committed against the child of a tender age, the gravity of
the wrong increases considerably. The Indian Penal Code
has extensive provisions relating to rape, but unfortunately,
there are no specific provisions relating to sexual assault
against the children. Therefore, the children's vulnerability
is more exploited and many times the wrongdoer escapes
the punishment but taking loophole of one or other
provision or for the want of sufficient evidences against
h i m . The cases of sexual assault against children are
183
reported day in day out in the newspapers and on electronic
media. In one of such reported cases^ it came to the light
that a sweeper of a school committed rape on a girl
studying in the I l i r d Std. of the same school. The cases of
child rape, thus, are reported every day. This topic has
been dealt with in detail in Chapter No. 6, but it would be
pertinent to reproduce the relevant provisions of Indian
Penal Code hereunder -
Rape: - A man is said to commit "rape" who, except in the

case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six
following descriptions: -
First: - Against her will.

Secondly: -without her consent.
Thirdly: - With her consent, when her consent has
been obtained by putting her or any person in whom
she is interested in fear of death or of hurt.
Fourthly: -With her consent, when the man knows
that he is not her husband, and that her consent Is
given because she believes that he is another man to
whom she Is or believes herself to be lawfully married.
Fifthly: - With her consent, when, at the time of
giving such consent, by reason of unsoundness of
^ reported on 4* April 2006 in Divya Bhaskar (Vadodara Edition)
184
mind or intoxication or the administration by him
personally or through another of any stupefying or
unwholesome substance, she is unable to understand
the nature and consequences of that to which she
gives consent.
Sixthiy: - With or without her consent, when she is
under sixteen years of age.
Explanation: - Penetration is sufficient to constitute

the sexual intercourse necessary to the offence of
rape.
Exception: -Sexual intercourse by a man with his wife,

the wife not being under fifteen years of age, is not
rape^
Punishment for rape: -

(1) Whoever, except in the cases provided for by
sub-section ( 2 ) , commits rape shall be punished
with imprisonment of either description for a
term which shall not be less than seven years
but which may be for life or for a term which
may extend to ten years and shall also be liable
to fine unless the woman raped is his own wife
and is not under twelve years of age, in which

185
cases, he shall be punished with imprisonment of
either description for a term which may extend
to two years or with fine or with both:
Provided that the court may, for adequate and

special reasons to be mentioned iri the
judgment, impose a sentence of imprisonment
for a term of less than seven years.
(2) Whoever: -
(a) Being a police officer commits rape—
(i) Within the limits of the police station
to which he is appointed; or
(ii) In the premises of any station house
whether or not situated in the police
station to which he is appointed; or
(Hi) On a woman is his custody or in the
tiistody of a police officer subordinate
to him; or
(b) Being a public servant, takes advantage of
his official position and commits rape on a
woman is custody as such public servant or
in the custody of a public servant
subordinate to him; or
(c) Being on the management or on the staff
of a jail, remand home or other place of
custody established by or under any law for
186
the time being in force or of a woman's or
children's institution talces advantage of his
official position and commits rape on any
inmate of such jail, remand home, place or
institution; or
(d) Being on the management or on the staff
of a hospital, takes advantage of his official
position and commits rape on a woman in
that hospital; or
(e) Commits rape on a woman knowing her to
be pregnant; or
(f) Commits rape when she is under twelve
years of age; or
(g) Commits gang rape.
Shall be punished with rigorous imprisonment for a
term which shall not be less than ten years but which
may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special

reasons to be mentioned In the judgment, impose a
sentence of imprisonnnent of either description for a
term of less than ten years.
Explanation 1 - Where a woman is raped by one or

more in a group of persons acting in furtherance of
their common intention, each of the persons shall be
187
deemed to have committed gang rape within the
meaning of this sub-section.
Explanation 2- "Women's or children's instrtution"

means an institution, whether called an orphanage of
a home for neglected women or children or a widows'
home or by any other name, which is established and
maintained for the reception and care of women or
children.
Explanation: 3. - "Hospital" means the precincts of the

hospital and includes the precincts of any institution
for the reception and treatment of persons during
convalescence or of persons requiring medical
attention or rehabilitation^
Intercourse by a man with his wife during

separation:- Whoever has sexual intercourse with his wife,
who Is living separately from him under a decree of
separation or under any custom or usage without her
consent shall be punished with imprisonment of either
description for a term which may extend to two years and
shall also be liable to fine^.

^ Section 376A ibid
188
Intercourse by public servant w i t h w o m a n Is his
custody.- Whoever, being a public servant, takes
advantage of his official position and induces or seduces
any woman, who is In his custody as such public servant or
in the custody of a public servant subordinate to h i m , to
have sexual intercourse with him, such sexual intercourse
not amounting to the offence of rape, shall be punished
with imprisonment of either description for a term which
may extend to five years and shall also be liable to fine^.
Intercourse by superintendent of j a i l , remand home,

etc.- Whoever, being the superintendent or manager of a
jail, remand home or other place of custody established by
or under any law for the time being in force or of a woman's
or children's institution takes advantage of his official
position and induces or seduces any female inmate of such
jail, remand home, place or institution to have sexual
intercourse with him, such sexual intercourse not
amounting to the offence of rape, shall be punished with
extend to five years and shall also be liable to fine.
Explanation 1. —"Superintendent" in relation to jail, remand

home or other place of custody or a women's or children's
institution included a person holding any other office in such
Section 376B of Indian Penal Code, 1860
189
jaii, remand home, place or institution by virtue of wiilch he
can exercise any authority or control over its inmates.
Explanation 2. — The expression "women's or children's

institution" shall have the same meaning as in Explanation
2 to sub-section (2) of section 376^.
Intercourse by any member of t h e management or

staff of a hospital with any w o m a n in that hospital. -
Whoever, being on the management of a hospital or being
on the staff of a hospital takes advantage of his position
and has sexual intercourse with any woman in that hospital,
such sexual intercourse not amounting to the offence of
rape, shall be punished with imprisonment of either
description for term which may extend to five years and
shall also be liable to fine.
Explanation. -The expression "hospital" shall have the same

meaning as in Explanation 3 to sub-section (2) of section
376^.
Unnatural offences. -Whoever voluntarily has carnal

intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for
' Section 376C ibid

^ Section 376D of Indian Penal Code, 1860
190
life, or with imprisonment of eitlier description for term
which may extend to ten years, and shall also be liable to
fine.
Explanation. - Penetration is sufficient to constitute the

carnal Intercourse necessary to the offence described in this
section^.
Thus the discussion of above provisions of Indian Penal

Code reveals that legislature has made extensive provisions
for children in the Code. However, at the same time it may
be noted that, looking to the supreme significance of the
protection of child rights, and also the global concern for
protection of rights of the children during second half of the
last century, the legislature was compelled to make
separate specific enactments from time to time for
protection and welfare of the children. These specific
enactments were and are meant only for the children.
There are many such enactments passed and amended by
the law-makers from time to time. One of such important
piece of legislation is Juvenile Justice (Care and Protection
of Children) Act, 2000 which has been discussed hereunder
in detail.
' Section 377 Jbid

191
4-2 Juvenile Justice fCare and Protection of
Cliiidrenl Act, 2 0 0 0
"Trying a man is easy, as easy as failing off a log,
compared w i t l i deciding w h a t to do w i t h him w h e n he
has been found guilty."
- Justice Henry Alfred McCardie
For last few decades there has been a growing concern for
protection of the rights of the children. The child rights can
be protected in many ways, of course, but the law is a
stronger instrument to contribute in that direction. It may
be noted that till the end of 18*^ Century, no special
treatment was given to the children. They were subjected
to the same laws and punishments as were inflicted to the
adults. Further, the child offenders were prosecuted under
the same procedural laws to which adults were subjected.
So was the case with prisons. There were no separate
prisons for child offenders and they were kept in the same
prisons with adult prisoners. The crusade against harshness
towards young offenders began in 1772 when certain
special concessions were granted to juvenile delinquents In
civil matters, such as probate, gift and will etc.^
Subsequently, with the passage of time, the more and more
provisions were made for the protection of children in
various laws. In India, after independence, several
^ Paranjape N. V., Criminology Penology, 12"* Ed. 2005

192
independent legislations were also framed from time which
contaiaed special and specific provisions relating to
children. Then came Children Act, 1960. The object of the
said Act was to provide for care, protection, maintenance,
welfare, training, education and rehabilitation of neglected
or delinquent children in the Union Territories.
4.2.1 Juvenile Delinquency

Etymologically, the term 'delinquency' has been derived
from the Latin word delinquer which means ' t o omlt'^.
When this term is used with reference to a child it would be
called as juvenile delinquency. Juvenile means a person,
who has not completed eighteenth year of age^. However
under Juvenile Justice Act, 1986, juvenile was defined as, a
boy who has not attained the age of sixteen years or a girl
who has not attained the age of eighteen years^. The term
'juvenile delinquency' was, perhaps for the first time, used
by an American Committee constituted in the city of New
York in the early part of the 19*^^ Century to investigate into
the cases of pauperism and vagrancy"*.
' ibid
^ S. 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000
^ S.2(h) of Juvenile Justice Act, 1986
* Robert Kinney Pierce ; A Half Century with Juvenile Delinquents, Patterson Smith, Mantelair,
1969 cited in Law and Child - by N. K. Chakrabarti, 1" Ed. 2004
193
4 . 2 . 2 Juvenile Justice viz-a-viz Juvenile Justice Act
The term 'Juvenile Justice' before the onset of delinquency
may refer to social justice; after the onset of delinquency, it
refers to justice in its normal juridical sense. The juvenile
Justice Act provides for justice after the onset of
delinquency and the preventive measures which would
check juvenile delinquency legitimately fall within the scope
of social justice. Once a boy or a girl has assumed
delinquency, his or her treatment and trial at the hands of
justice delivery system is taken care of by the provisions of
the Juvenile Justice Act. The view so taken finds support
from the preamble to the Act and the statement of objects
and reasons. The preamble speaks for the Act making
provisions for the things post-delinquency. Several
expressions employed in the statement of objects and
reasons vocally support this view. The Act aims at laying
down a uniform juvenile justice system in the country
avoiding lodging in jail or police lock-up of child; and
providing for prevention and treatment of juvenile
delinquency, for care, protection etc. post-juvenility. In
short the field sought to be covered by the Act is not the
one which had led to juvenile delinquency but the field
when juvenile having committed a delinquency is placed for
being taken care of post-delinquency^.
' Amit Das v. State of Bihar, AIR 2000 SC 2267

194
4.2.3 Juvenile Justice Act, 1 9 8 6
The history of such legislative enactments can be traced
bacl< to Children Act, 1948. Then came Children Act, 1960.
But it was only in the year 1986 that first central Juvenile
Justice Act was passed. The Juvenile Justice Act, 1986
received the assent of the President on 1^*^ December 1986
and it was published in the Gazette of India Extraordinary,
Part I I , Section 1, dated 3^*^ December 1986 on pages 1 to
23. However, by the simple receipt of the assent of the
President and publication of the Act in the Gazette its
application to the various States and the Union of India is
not automatic. It came into force in different States with
effect from different dates^
Prior to the enactment of the Juvenile Justice Act, 1986

there were several laws prevailing in different and the need
for a uniform legislation for juveniles for the whole of India
was expressed in various forums including the Parliament.
Such uniform legislation was not being enacted on the
ground that the subject-matter of such a legislation fell in
the State List of the Constitution. The U. N. Standard
Minimum Rules for administration of juveniles justice
enabled the Parliament exercising the powers under Art.
253 of the Constitution read with entry 14 of the Union List
' G u d d u v , StateofUP, 1989 JIC 414 (All)
195
to make any law for the whole of India to fulfill international
obligations^
The object of the Juvenile Justice Act, 1986 was to provide

for the care, protection, treatment, development and
rehabilitation of neglected or delinquent juvenile and for the
adjudication of certain matters relating t o , and disposition
of, delinquent juveniles.
Section 2 of the said Act defined various terms used in the

Act for the purpose of application of provisions thereof. S. 3
provided where an enquiry has been Initiated against a
juvenile and during the course of such enquiry a juvenile
ceases to be such, then, notwithstanding anything
contained in this Act or any other law for the time being in
force, the enquiry may be continued and orders may be
made in respect of such persons as if such person had
continued to be a juvenile. Chapter I I of the Act spoke of
competent authorities and institutions for juveniles such as
Juvenile Welfare Boards, Juvenile Courts, Juvenile Homes,
Special homes. Observation homes and After-care
organizations. Chapter I I I made provisions for neglected
juveniles wherein it also included s. 17 making provision for
uncontrollable juveniles. Chapter IV dealt with delinquent
juveniles. The provisions contained in S, 18 to 26 provided
' Amit Bas v. State of Bihar, AIR 2000 SC 2267
196
for ball and custody of juvenile accused of a bailable or
non-bailable offence, the nnanner of dealing with them and
the orders that may be passed regarding or against
delinquent juveniles. Proceedings under Chapter V I I I of the
Code of Criminal Procedure were not competent against
juveniles. A juvenile and a person not a juvenile could not
be jointly tried. The Act further provided that no
disqualification attaches to conviction of a juvenile for any
offences under any law. Then there were special provisions
contained in S. 26 as to proceedings in respect of juveniles
pending in any Court on the date of coming Into force of the
Act. Chapter V laid down the procedure of competent
authorities generally under the Act and appeals and
revisions from the orders of such authorities. Chapter VI
provided for special offences in respect of juveniles.
Chapter V I I contained miscellaneous provisions^.
Subsequently, vide Juvenile Justice (Care and Protection of

Children) Act, 2000 was passed which repealed Juvenile
Justice Act, 1986.
4.2.4 Juvenile Justice (Care and Protection of

Children) Act, 2 0 0 0
The Juvenile Justice (Care and Protection of Children) Act,
2000 came into force w.e.f. 1^^ April 2001 vide notification
See Amit Das v. State of Bihar, AIR 2000 SC 2267

197
No. S.O. 177(E) dated 28*^ February, 2 0 0 1 . The object
clause of the Act states that the Act is ... to consolidate and
amend the law relating to juveniles in conflict with law and
children in need of care and protection, by providing for
proper care, protection and treatment by catering to their
development needs, and by adopting a child-friendly
approach in the adjudication and disposition of matters in
best interest of children and for their ultimate rehabilitation
through various institutions established under this
enactment.
The object clause also mentions that the Act has been
enacted to give effect to the various provisions of
Constitution and United Nations Convention on the Rights of
the Child, 1989; as also bringing the Act in tune with
standards prescribed in the said Convention and United
Nations Standard Minimum Rules for the Administration of
Juvenile Justice, 1985 (i.e. the Beijing Rules), the United
Nations Rules for the Protection of Juveniles Deprived of
their Liberty (1990), and all other relevant international
instruments.
The Act consists of seventy sections divided into five

Chapters. The structure of the Act is more or less same but
it has incorporated some major changes in its explanatory
as well as teething provisions. First and foremost of such
198
changes is that the Act has changed the definition of the
term 'juvenile'. As mentioned above under Juvenile Justice
Act, 1986 the term 'juvenile' was defined to mean a boy
who has not attained the age of sixteen years or a girl who
has not attained the age of eighteen years. However, under
present Act, the term 'Juvenile' means a person, who has
not completed eighteenth year of a g e \ Further, the terms
'juvenile delinquency' and 'neglected child' have been
replaced with 'child In conflict with law' and 'child in need
of care & protection' respectively. This shows the change in
outlook of the legislature towards juveniles. Apparently, the
legislature has now refused to hold a child to be delinquent
and hence they have mildly referred to it as 'child in
conflict with law'. Does that really make any substantial
change in the situation. Perhaps no. The reason being that
the change in nomenclature does not change the thing.
4.2.5 Structure of Juvenile Justice (Care and

Protection of Ciilldren) Act, 2 0 0 0
Section 2 of this Act defines various terms used in the Act
for the purpose of application of provisions thereof. Section
3 provides that where an enquiry has been initiated against
a child and during the course of such enquiry the child
ceases to be such, then, notwithstanding anything
contained in this Act or any other law for the time being in
* S. 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000
199
force, the enquiry may be continued and orders may be
made in respect of such person as if such person had
continued to be a child. Chapter I I of the Act provides for
establishment of Juvenile Justice Board for exercising the
powers and discharging the duties conferred or imposed on
such Board in relation to juveniles in conflict with law under
this Act. The said Chapter also provides for procedure etc.
in relation to Board and also provides for powers of Juvenile
Justice Board. This Chapter also provides for establishment
and maintenance of Observation Homes and Special
Homes. Section 11 In this Chapter provides that any person
in whose charge a juvenile is placed in pursuance of this Act
shall, while the order is In force have the control over the
juvenile as he would have if he were his parent, and shall
be responsible for his maintenance, and the juvenile shall
continue in his charge for the period stated by competent
authority, notwithstanding that he is claimed by his parents
or any other person. Section 12 talk of bail of juvenile who
Is accused of an offence. This section provides that the
juvenile accused of any bailable or non-bailable offence
shall be granted ball as a matter of rule. This is
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 or any other law for the time being in
force. However, such bail shall not be granted when there is
reasonable ground to believe that the release is likely to
bring such person into association with any known criminal
200
or expose him to moral, physical or psychological danger or
that his release would defeat the ends of justice. In such
case such person is to be kept in observation home or a
place of safety pending inquiry. When a juvenile is arrested
for having committed any offence, the Act provides that the
parents of such person should be promptly informed of such
arrest. Section 14 provides for Inquiry by Board regarding
juvenile. Section 15 deals with order that may be passed
regarding juvenile. Section 16 deals with orders that may
not be passed against juvenile. The another significant
provision is Section 17 in this Chapter which provides that
notwithstanding anything to the contrary contained in the
Code of Criminal Procedure, 1973 no proceeding shall be
instituted and no order shall be passed against juvenile
under Chapter V I I I of the said Code. Thus the ordinary trial
courts shall have no power to try the cases where juvenile
is an accused. Such cases are to be tried by Juvenile Courts
only. Section 18 further provides that a child and a person
not a child cannot be jointly tried. Another significant
provision is Section 19 which states that no disqualification
attaches to conviction of a child for any offences under any
law. Then there are special provisions contained in Section
20 as to proceedings in respect of children pending in any
Court on the date of coming into force of the Act. The
another significant change brought about this Act is
Introduction of Section 21 which prohibits publication of
201
name etc. of juvenile involved in any proceeding under the
Act. Section 22 provides that when a juvenile escapes, no
proceedings can be instituted against him. Section 23
provides for punishment for cruelty to juvenile or child.
Section 24 provides for punishment for employment of
juvenile or child for begging. Section 25 imposes penalty for
giving intoxicating liquor or narcotic drug or psychotropic
substance to juvenile or child. Section 26 provides for
punishment in cases of exploitation of juvenile or child
employees.
Chapter III provides for constitution of Child Welfare

Committees for exercising the powers and discharging the
duties conferred on such committees in relation to child in
need of care and protection under this Act. It also provides
for procedures and powers of the committees and inquiry
by the committee. It provides for establishment and
maintenance of Children's Home and Shelter Homes.
Chapter IV deals with rehabilitation and social integration of

the children. As a measure of rehabilitation this Chapter has
provision for adoption of the children who are orphaned,
abandoned, neglected and abused through institutional or
non-institutional methods. The provisions for Foster Care,
Sponsorships, After-care organization for children have also
202
found place in this Chapter. Chapter V contains
miscellaneous provisions.
Thus from the study of the structure of this legislation, it

becomes clear that the purpose of the Act is to provide for
criminal justice system when the offence has been
committed by a child. When the offence has been
committed against child, the provisions of Indian Penal
Code will apply. And in that case, the procedural law would
be Code of Criminal Procedure, 1973. However, when the
offence has been committed by a child, the present
legislation would apply, which not only contains the
substantive provisions but also provide for procedure
thereof. Therefore, it can be said that this Act is semi-
substantive semi-procedural Act and thus is a self contained
code for the trial of matters where an offence has been
committed by a child. However, another significant feature
of the Act is that it not only deals with child in conflict with
law, but also deals with child in need of care and protection.
Thus, it is not a purely criminal legislation but rather in that
sense it is also a child welfare legislation.
After studying the structure of the Act, It would be pertinent

to discuss in details the different terms used in the Act as
well as some of the important aspects of the said Act.
203
4 . 2 . 5 . 1 Who is Juvenile?
'Juvenile' or 'child' means a person, who has not
completed eighteenth year of age^. However, before
commencement of the present legislation, under Juvenile
Justice Act, 1986, juvenile was defined as, a boy who has
not attained the age of sixteen years or a girl who has not
attained the age of eighteen years^.
There had been a long standing controversy as to

determination of the age of juvenile for the purpose of
giving the benefit of the juvenile legislations. In some of the
decisions, it was held that date of offence would be taken
into account while counting the age of the child accused so
as to determine whether he is entitled to the benefit of the
Act or not. However, In some of the decisions. It was held
that the correct date would be the date of which charges
are framed against him and not the date of offence. In
Umesh Chandra V. State of Rajastan^, it was held that
the relevant date for the applicability of the Act would be
the date of offence and not the date of the trial. The said
decision was following by the Supreme Court in case of
Balwant Kaur V. Union Territory of Chandigarh'^.
' Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000
^ Section 2(h) of Juvenile Justice Act, 1986
^ 1982(2) s e c 202 cited in Supreme Court on Children, By Apama Bhat
''1988(1) s e c 1
204
However in Arnit Das V . State of Bihar, the Supreme
Court held that the relevant date for giving the benefit of
the Act to the child would not be the date of offence. In
Nuvvaia Kiran V. State^, the accused who had committed
rape was 17 years old boy at the time of commission of
offence. It was held that he could not be termed as juvenile
and as such not entitled to the benefit under the Act.
Thus there had been a clear conflict between the decisions

of the Supreme Court in Umesh Chandra and Arnit Das.
Referring to these two decisions, the Hon'ble Supreme
Court, in Pratap Singh V. State of Jharkhand and
another^, held that the relevant date for reckoning the age
of the juvenile would be the date of occurrence and not the
date on which he was produced before the Board. The
Hon'ble Apex Court, in support of its finding, observed that,
"The Act Is not only a beneficient legislation, but also a
remedial one. The Act aims at grant of care, protection and
rehabilitation of a juvenile vis-a-vis the adult criminals.
Having regard to Rule 4 of UN Minimum Standard Rules for
the Administration of Juvenile Justice, it must also be borne
in mind that the moral and psychological components of
criminal responsibility was also one of the factors in
defining a juvenile. The first objective, therefore, is the
' 2004 Cri. L. J. 1263 (A.P.)

^ 2005(3) s e c 551
205
promotion of the well-being of the juvenile and the second
objective bring about the principle of proportionality
whereby and whereunder the proportionality of the reaction
to the circumstances of both the offender and the offence
including the victim should be safeguarded. I n essence.
Rule 5 calls for no less and no more than a fair reaction in
any given case of juvenile delinquency and crime. The
meaning of the expression 'juvenile' used in a statute by
reason of its very nature has to be assigned with reference
to a definite date. The term 'juvenile' must be given a
definite connotation. A person cannot be a juvenile for one
purpose and an adult for other purpose. It was, having
regard to the constitutional and statutory scheme, not
necessary for the Parliament to specifically state that the
age of juvenile must be determined as on the date of
commission of the offence. The same is in-built in the
statutory scheme. The statute must be construed having
regard to the Scheme and the ordinary state of affairs and
consequences flowing therefrom. The modern approach is
to consider whether a child can live up to the moral and
psychological components of criminal responsibility, this is,
whether a child, by virtue of his or her individual
discernment and understanding can be held responsible for
essentially anti-social behaviour....... Only because his age is
to be determined in a case of dispute by the competent

court or the board in terms of Section 26 of the Act, the
206
same would not mean that the relevant date therefore
would be the one on which he is produced before the Board.
If such an argument is accepted, the same would result in
absurdity as, in a given case, it would be open to the police
authorities not to produce him before the Board before he
ceases to be juvenile. If he is produced after he ceases to
be juvenile, it may not be necessary for the Board to send
him in the protective custody or release him on bail as a
result whereof he would be sent to the judicial or police
custody which would defeat the very purpose for which the
Act had been enacted. Law cannot be applied in an
uncertain position. Furthermore, the right to have a fair trial
strictly in terms of the Act, which would include procedural
safeguard, is a fundamental right of the juvenile. A
proceeding against a juvenile must conform to the
provisions of the Act."
4 . 2 . 5 . 2 Determination of the age of the Juvenile

Once it is proved that the accused is juvenile, he would be
afforded the due benefit of the present legislation. Section
49 of the Act imposes duty on the competent authority to
make due inquiry so as to the age of the person brought it
when it appears to such authority that the said person is a
juvenile or the child. The said provision reads as under :
207
S.49 Presumption and Determination of age - (1)
Where it appears to a competent authority that person
brought before it under any of the provisions of this
Act (otherwise than for the purpose of giving
evidence) is a juvenile or the child, the competent
authority shall make due inquiry so as to the age of
that person and for that purpose shall take such
evidence as may be necessary (but not an affidavit)
and shall record a finding whether the person is a
juvenile or the child or not, stating his age as nearly
as may be.
(2) No order of a competent authority shall be deemed to
have become invalid merely by any subsequent proof
that the person in respect of whom the order has been
made is not a juvenile or the child, and the age
recorded by the competent authority to be the age of
person so brought before it, shall for the purpose of
this Act, be deemed to be the true age of that person.
Where the accused had made application for determination

of age, burden of proving age of delinquent was not on
juvenile delinquent. Court should make further inquiries and
call for original record or school etc. As such, order
rejecting application of accused without making said inquiry
208
was illegal^ In Ram Deo Chauhan V. State of Assam^, it
was observed that if the school register can be accepted as
reliable and the relevant entry can be taken as
unnnistakably referring to the petitioner-accused then he
would certainly have been a juvenile on the relevant date.
But the trial court did not accept that evidence due to the
reasons mentioned in the judgement. Those reasons cannot
be said to be weak. It is not shown that the school register
was maintained by a public servant in the discharge of his
official duties or by any other person in the performance of
a duty specially enjoined by the law of the country in which
such register was kept. Thus the entry in the school register
remains away from the range of acceptability as proof
positive regarding the date of birth of the petitioner. Held
the entries made in such a register cannot be taken as a
proof of age of the accused for any purpose.
Further in actual life it often happens that persons give

false age of the boy at the time of his admission in the
school so that later in life he would have an advantage
when seeking public service for which a minimum age for
eligibility is often prescribed. The court cannot ignore this
fact while assessing the value of the entry and it would be
improper for the court to base any conclusion on the basis
' Munshi Khan v. State of Rajasthan, 2004 Cri. L. J. 3465 (Raj.) cited in Law Relating to Juvenile
Justice in India - by R N Choudhary
^ 2001 Cr U 2902 at 2910,2919 (SC); AIR 2001 SC 2231
209
of the entry, when it was alleged that the entry was made
upon false information supplied with the above motive^.
Further, wherever the attennpt has been made to adduce

false evidences, the Court came down heavily on the
accused. For instance. In Vinod Kumar V. State of U.P.^,
Section 2(4) and Section 29 of U.P. Children Act (1 of 1952)
were invoked. The court held, child accused not only led
assault but also played prominent role which resulted in
gruesome triple murder. Documents produced by accused
regarding his age were of doubtful authenticity and unsafe
to rely. Held it could not be said that accused was "child"
within meaning of Section 2 (4) at the time of occurrence
and hence he would not be entitled to benefit of Section 29.
The Court observed that, the averment as to age was
nothing but an afterthought Displaying the Court's deep

concern and solicitude about the treatment of juvenile
offenders, the appellant is emboldened to come forward
with this belated plea that he was a child within the
meaning of Section 2(4) of the Act and therefore the trial
was vitiated by reason of Section 29. The Court further
observed that, "In the facts and circumstances of this
particular case, we are not prepared to countenance the
argument that the appellant was a child within the meaning
^ See Rama Kant v. State of UP, 2000 Cr LJ 4682 Ibid

^ AIR 1987 SC 1501
210
of Section 2(4) of the Act. After the grant of special leave,
the appellant apart from his own affidavit; filed two
affidavits of his father Sri Narain Sachan and an affidavit by
Shri Jitendra Prasad Singh, Advocate, brother of Dharam
Pal Singh. He has also placed on record copies of certain
documents, namely (1) extracts of the Kutumb register in
Form 'A' of Pania Mau Gaon Sabha issued by the Village
Panchayat Officer, Nyaya Panchayat, Dev Rabat. (2)
Certificate of the High School Examination, 1973 issued by
the Secretary of Madhyamik Shiksha Parishad, Uttar
Pradesh. (3) Entry from the electoral roll relating to U.P.
State Legislative Assembly Constituency No. 275,
Allahabad, Mohalla Buxi Khurd. (4) Statement of the
appellant recorded by the learned Additional Sessions Judge
under Section 313 of the Code of Criminal Procedure, 1973.
We have gone through these affidavits and other
documents and we are not prepared to act on them. At the
hearing we asked the learned counsel to produce the
original documents. We are satisfied that the documents
are of doubtful authenticity and it would be unsafe to rely
upon such documents. Such documents can always be
brought into existence. We would refer to the statement of
the appellant recorded by the learned Additional Sessions
Judge on June 4 , 1975 wherein the appellant stated his age
to be 17 years. Beneath the statement, there is an
endorsement in ink : "The age of 17 years appears to be
211
correct." We are left to guess who made this endorsement.
Even assuming that the endorsement was made by the
learned Additional Sessions Judge, that was only an
estimate of age and does not necessarily show that the
appellant was a child within the meaning of Section 2(4) of
the Act at the time of occurrence. In view of the earlier
attempt made by the appellant and his legal advisors to
substantiate the false plea of alibi by production of forged
attendance register and the tendering of evidence of
Virendra Kumar Mehta, DW 1 against whom the High Court
has passed strictures for suborning himself in an attempt to
thwart the course of justice, it is quite evident that, the
appellant and his legal advisors would go to any extent In
creating evidence to support the false plea now taken."
In Hawaidar Singh V- State of U . P / , the Medical Report

showed that convict had attained the age of 16 years. No
evidence was adduced by convict despite repeated
opportunities. Fact that in ball application moved during
trial he was shown as 11 years was held to be the slender
basis to give him the benefit. Further the court refused to
rely on the Horoscope produced by convict even though it
gave an appearance of an ancient document. The court
observed that such documents could be prepared at any
^ AIR 1985 SC 955

212
time for such cases. It was held that the convict was not
entitled to benefit under Act.
The question that whether the plea that the accused is a

minor can be raised for the first time in the Supreme Court
was examined by the Hon'ble Court in case of Gopinath
Ghosh V, State of W , B - \ In this case, W. B. Children Act
was in question. The Court observed that, "Where a
juvenile delinquent is arrested, he/she has to be produced
before a juvenile Court and if no juvenile Court is
established for the area, amongst others, the Court of
Session will have powers of a juvenile Court. Such a
juvenile delinquent ordinarily has to be released on bail
irrespective of the nature the offence alleged to have been
committed unless it is shown that there appears reasonable
grounds for believing that the release is likely to bring him
under the influence of any criminal or expose him to moral
danger or defeat the ends of justice A minor accused
was tried along with other accused for committing murder
and was sentenced to imprisonment for life. The plea that
he was minor was raised for the first time in appeal before
the Supreme Court. In fact when questioned by the trial
Court the minor gave his age as 20 years. The specific Issue
as to whether the accused was minor was referred by the
Supreme Court to the trial Court and the answer was
AIR 1984 SC 237

213
returned in affirmative. Held that In view of tlie underlying
intendment and beneficial provisions of the Act read with
clause(f) of Article 39 of the Constitution, it would be
proper not to allow a technical objection that the contention
that the accused is minor is being raised in Supreme Court
for the first time. If such objection is allowed it would
result in thwarting the benefit of the provisions of the Act to
the minor, if he was otherwise entitled to it. Conviction and
sentence of the minor was set aside and the case remitted."
While substantiating its decision, the Hon'ble Supreme
Court further observed that, ''Before we part with this
judgment, we must take notice of a developing situation in
recent months in this Court that the contention about age
of a convict and claiming the benefit of the relevant
provisions of the Act dealing with juvenile delinquents
prevalent in various States is raised for the first time in this
Court and this Court is required to start the inquiry afresh.
Ordinarily this Court, would be reluctant to entertain a
contention based on factual averments raised for the first
time before it. However, the Court is equally reluctant to
ignore, overlook or nullify the beneficial provisions of a very
socially progressive statute by taking shield behind the
technicality of the contention being raised for the first time
in this Court. A way has therefore, to be found from this
situation not conducive to speedy disposal of cases and yet
giving effect to the letter and the spirit of such socially
214
beneficial legislation. We are of the opinion that whenever a
case is brought before the Magistrate and the accused
appears to be aged 21 years or below before proceeding
with the trial or undertaking an inquiry, an inquiry must be
made about the age of the accused on the date of the
occurrence. This ought to be more so where special Acts
dealing with juvenile delinquent are in force. If necessary,
the Magistrate may refer the accused to the Medical Board
or the Civil Surgeon, as the cast may be, for obtaining
credit-worthy evidence about age, The Magistrate may as
well call upon accused also to lead evidence about his age.
Thereafter, the learned Magistrate may proceed in
accordance with law. This procedure, if properly followed,
would avoid a journey up to the Apex Court and the return
journey to the grass-root court. If necessary and found
expedient, the High Court may on its administrative side
issue necessary instructions to cope with the situation
herein indicated/'
Similarly, in Bhola Bhagat V. State of Bihar^ it was

observed that the benefit of the plea that he was child on
the date should not be refused on technical grounds if the
accused took a plea that he was child on the date of
incident should be given an opportunity to establish the
^ AIR 1998 so 236

215
case and a positive findings regarding the age of the
accused should be recorded.
It must be noted that merely on visual appearance Court

cannot record the finding regarding the age of juvenile^.
The time of eruption of the third molar teeth or the wisdom

teeth is most uncertain, but it starts erupting from the age
of 1 and completes by around 26 years of age. In view of
this admission it can safely be said that accused was less
than 17 years of age at the time of his examination^.
4.2.5.3 Juvenile in Conflict w i t h Law

Earlier legislation on Juvenile Justice had used the term
'juvenile delinquency'; however, present legislation has
used the term 'child in conflict with law' which is rather
softer and sympathetic term referred to a wrongdoer child.
This shows a remarkable shift In the outlook of the
legislature towards the child offenders. The term 'juvenile
In conflict with law' means a juvenile, who is alleged to
have committed an offence^.
' See Mahboob Ahmad v. State of UP, 1995(2) SIC 1514 (Ali.)
^ see Sahib Singh v. State, 1991 Cr. U 687 cited in Law Relating to Juvenile Justice in India- by
R N Choudhary
' Section 2(1) Juvenile Justice (Care and Protection of Children) Act, 2000
216
4.2.5.4 Juvenile in need of care and protection
Child in need of care and protection means a child :-
(i) who is found without any home or settled piace
or abode and without an ostensible means of
subsistence;
(il) who resides with a person (whether a guardian
of the child or not) and such person -
(a) has threatened to kill or injure the child and
there is a reasonable likelihood of the threat
being carried out; or
(b) has killed, abused or neglected some other
child or children and there is reasonable
likelihood of the child in question being killed,
abused or neglected by that person;
(iii) Who is mentally or physically challenged or ill
children or children suffering from terminal
diseases or incurable diseases having no one to
support or look-after;
(Iv) Who has a parent or guardian and such parent
or guardian is unfit or incapacitated to exercise
control over the child;
(v) Who does not have parent and no one is willing
to take care of or whose parents have
abandoned him or who is missing and run away
child and whose parents cannot be found after
reasonable inquiry;
217
(vi) Who is being or is likely to be grossly abused,
tortured or exploited for the purposes of sexual
abuse or Illegal acts;
(vli) Who is found vulnerable and is likely to be
inducted into drug abuse or trafficking;
(vlil) Who is being or Is likely to be abused for
unconscionable gains;
(Ix) Who is victim of any armed conflict, civil
commotion or natural calamity.
4.2.5.5 Juvenile Justice Pliilosophy

The judicial philosophy behind juvenile justice legislation
becomes evident from the observation of the Hon'bie
Supreme Court^ in following words.
"The purpose of the Juvenile Justice Legislation is to provide

succour to the children who were being incarcerated along
with adults and were subjected to various abuses. It would
be in the fitness of things that appreciation of the very
object and purpose of the legislation which sought to bring
relief to juvenile delinquents.
The problem of juvenile justice Is, no doubt, one of tragic

human interest so much so in fact that it is not confined to
this country alone but cuts across national boundaries. In
' Pratap Singh v. State of Jharkhand and Another, 2005(3) SCC 551
218
1966 at the Second United Nations Congress and Treatment
of Offenders at London this issue was discussed and several
therapeutic recommendations were adopted. To bring the
operations of the juvenile justice system in the country in
conformity with the UN Standard Minimum Rule for the
Administration of juvenile justice, the Juvenile Justice Act
came Into existence in 1986. A review of the working of the
then existing Acts both State and Pariiamentary would
indicate that much greater attention was found necessary
to be given to children who may be found in situations of
social maladjustment, delinquency or neglect. This justice
system as available for adults could not be considered
suitable for being applied to juvenile. There is also need for
larger involvement of informal system and community
based welfare agencies in the case, protection, treatment,
development and rehabilitation of such juveniles "
4 . 2 . 5 . 6 Child and Capital Punishment

Before enactment of Juvenile Justice (Care and Protection
of Children) Act, 2000, the question whether a juvenile can
be awarded death sentence, came up before Supreme Court
in many cases. Section 16 of the Act provides as under :-
S. 1 6 Order that may not be passed against Juvenile -

(1) Notwithstanding anything to the contrary
contained in any other law for the time being In force,
219
no juvenile in conflict with law shall be sentences to
death or life imprisonnnent, or comnnitted to prison in
default of payment of fine or in default of furnishing
security :
Provided that where a juvenile who has attained the

age of sixteen years has committed an offence and
the Board is satisfied that the offence committed is so
serious in nature or that his conduct and behaviour
have been such that it would not be in his interest or
in the interest of other Juvenile in a special home to
send him to such special home and that none of the
other measures provided under this Act Is suitable or
sufficient, the Board may order the juvenile in conflict
with law to be kept in such place of safety and in such
manner as it think fit and shall report the case for the
order of the State Government.
(2) On receipt of a report from a Board under sub-

section (1), the State Government may make such
arrangement in respect of the Juvenile as it deems
proper and may order such Juvenile to be kept under
protective custody at such place and on such
conditions as it thinks fit :
220
Provided the period of detention so ordered shall not
exceed the maximum period of imprisonment to which
the juvenile could have been sentenced for the offence
* committed.
Thus, this section malces it clear that no child in conflict

with law can be sentenced to death or imprisonment for life
or imprisonment in default of payment of fine or of
furnishing security. Even before passing of the present Act,
the Hon'ble Supreme Court in case of Gopai Chandra
Srivastava V. State of UP^ had held that "gruesomeness
of a crime may be one of the factors requiring infliction of
the severest sentence but tenderness of age has always
been accepted to be a mitigating factor to save an
adolescent neck from being lengthened by the noose of the
rope."
However, there were decisions by the Court which are

stunning. For Instance, in Amrutlal Someshwar Joshi V-
State^, the triple murder of the members of the family
committed by the domestic servant was treated as a crime
committed in cold blood, in a cruel and diabolical manner,
therefore, a rarest of rare category of murder. While
deciding the case, the Court held that there is no inflexible
• 1994 Cri. U 2863 cited in Law and Child, by Dr. N. K. Chakrabarti, I" Ed. 2004
^(1994)6 s e c 200 Ibid
221
rule that a criminai aged about 17 or 18 years should never
be sentenced to death Irrespective of other circunnstances
however aggravating they may be.
Similarly, in Ramdeo Chauhan V_ State^, court again

observed that the awarding of lesser sentence only on the
ground of the appellant being a youth at the time of
occurrence cannot be considered as a mitigating
circumstance in view of our finding that the murders
committed by him were cruel, heinous and dastardly.
Dr. N. K. Chakrabarti, referring to above decisions,

observes that such a categorical finding of the court is not
in consonance with the juvenile justice philosophy as
traditionally understood that is supposed to pass a
dispositional order merely on the basis of age, irrespective
of cruelty, heinousness or dastardliness in the perpetration
of the crime.
When a child is accused of having committed or having

participating in commitment of murder, the question arises
that what should be the course of legal action against him.
Whether should he be subjected to the same punishment to
which adults are subjected to. The answer would be quite
difficult. There cannot be complete negative answer to this
^ (2000)7 s e c 455 Ibid

222
question. The reason being tiiat even according to the set
principles of criminal jurisprudence, the criminal liability of
the person depends upon mens rea. It is therefore,
important to ascertain the guilty mind on the part of the
minor offender. It may however be noted that as mentioned
in the preceding paragraphs, in the second half of 20**^
Century, there has been a substantial change in the outlook
of the society and also that of the judiciary. Legislature has
also not legged behind, and several legislations have been
made which are apparently based on reformative theory
especially so far as children are concerned. The logic behind
these principles appears to be that a child of tender age
may be misled by the circumstances, the family
background, the friends, the society and such other factors.
It would, therefore, not be proper to deal with child accuses
in the same manner in which the accused of adult age are
dealt with. Juvenile Justice Act, 2000 has extensive
provisions in this regard. But it would be improper to think
that such was not the outlook of the legislature and
judiciary before advent of Juvenile Justice Act, 2000. This
becomes evident from the discussion of following case laws.
In case of Dharam Pal and others V. State of U.P.^, four

appellants alongwith 14 others were for the offence of
' AIR 1975 SC 1917

223
rioting in the course of which two murders were committed.
One of the appellant i.e. Ompal, at the time of trial, was
found by the trial Court to be about 15 years. This means
that Section 29 of the Uttar Pradesh Children Act, 1 9 5 1 ,
was applicable to the case. This Section reads as follows :-
S.29. Commitment of child to approved school- (1)

Where a child is found to have committed an offence
punishable with transportation or imprisonment, the Court,
if satisfied on inquiry that it is expedient so to deal with the
child, may order him to be sent to an approved school for
such period of stay as will not exceed beyond the time
when the child will attain the age of 18 years or for a
shorter period, the reasons for such period to be recorded
in writing.
(2) Where prior to the commencement of this Act a youthful
offender has been sentenced to transportation or
imprisonment, the State Government may direct that in lieu
of undergoing or completing such sentence he shall, if
under the age of sixteen years, be sent to an approved
school, and thereupon the offender shall be subject to all
the provisions of this Act as if he had been originally
ordered to be detained in such school."
The Supreme Court observed that this question was not

raised earlier so that the trial Court or the High Court may
224
take the action it was open to the Courts to tal<e after due
inquiry. Such action, if considered expedient could only be
to send the appellant to an approved school. The Hon'ble
Apex Court further observed that although the appellant
Om Pal was said to be armed with a lathi, no specific part
was assigned to him prosecution witnesses. He was bound
with the background of hostility between two sides and the
events mentioned in the judgement to have been misled by
the bad example of his elders. No previous participation in
such a case and no previous conviction was shown against
him. The Court therefore, said that appropriate action,
under Section 29 of the Children Act could have been taken
in his case if the question had been raised in time. The
Court further expressed hope that the punishment he has
already undergone has had a salutary effect in making him
conscious of the gravity of the consequences of joining an
unlawful assemble. All that we can do now in the
circumstances of Om Pal's case, is to recommend the
remission of the remaining period of Om Pal's sentence to
the authorities concerned. Subject to the said observations
with regard to Om Pal the court affirmed the convictions
and sentences of the accused and dismissed the appeal.
225
Another important case is that of Hiralal Malllck V. State
of Blhar^ In this case, the Hon'bie Supreme Court
considered the question of presuming a child of 12 years to
be doll incapax. J. Krishna Iyer, while deciding this case
observed that, this appeal involves an issue of criminal
culpability presenting mixed questions of fact and law and a
theme of juvenile justice a criminological Cinderella of the
Indian law-in-action.
The brief facts of this case were that one Hiralal Mallick, the
sole appellant of this case, was a 12 years old lad when he
toddled Into crime conjointly with his two elder brothers.
The three, together, were charged with the homicide of one
Arjan Mallick which ended in a conviction of all under
Section 302 read with Section 34, I. P. C. The trial Judge
impartially imposed on each one a punishment of
imprisonment for life. On appeal by all three, the High
Court, taking note of the some peculiarities, directed the
conversion of the convictions from Section 302 (read with
Section 34) into one under Section 326 (read with Section
34) I. P. C. and, consequently, pared down the punishment
awarded to the co-accused into rigorous imprisonment for 8
years. The third accused, the appellant in the present case,
was shown consideration for his tender age of 12 years (at
the time of commission of the crime) and the Court, in a
Am 1977 SC 2236
226
mood of compassion, softened the sentence of the boy into
rigorous imprisonment for 4 years.
While deciding appeal, the Hon'ble Supreme Court observed

that, "l*ân is a rational being and law is a system of
behavioral cybernetics where noetic niceties, if pressed too
far, may defeat its societal efficacy. So, except in
pronounced categories, which we will advert to presently,
the Intent is spelt out objectively by the rough-and-ready
test of the prudent man and not with psychic sensitivity to
retarded individuals." The Court further observed that
''When a teenager, tensed by his elders or provoked by the
stone-hit on the head of his father, avenges with dangerous
sticks or swords, copying his brothers, we cannot altogether
ignore his impaired understanding, his tender age and
blinding environs and motivations causatory of his crime."
I t was further observed that, " I t is common ground that the
appellant was twelve years old at the time of the
occurrence. At common law in England, as noticed by
Archbold in Criminal Pleading, Evidence and Practice, a child
under 14 years is presumed not to have reached the age of
discretion and to be doll incapax; but this presumption may
be rebutted by strong and pregnant evidence of a
mischievous discretion for the capacity to commit crime, do
evil and contract guilt, is not so much measured by years
227
and days as by the strength of the delinquent's
understanding and judgment..... "
Anyway, since now the present Act of 2000 has conne into
effect and it has specific provision in this regard, there does
not remain anomaly as to this question anymore as the
provision of Section 16 is very clear.
4 . 2 . 5 . 7 Right to privacy
Right to privacy is a fundamental right of every person
under Article 21 of Indian Constitution. After Maneka
Gandhi's decision. Supreme Court interpreted Article 21 in
its widest possible sense and held that ' right to live' means
' right to live with human dignity'. ' Right to live with human
dignity' is a wider term which is capable of including many
other rights as its components; right to privacy is one of
them. Article 16 of Convention on the Rights of the Child,
1989 states that no child shall be subjected to arbitrary or
unlawful interference with his or her privacy. Article 40
further makes it clear that a child shall have right to have
his or her privacy fully respected at all stages of the
proceedings. Sections 21 and 51 of the Juvenile Justice
(Care and Protection of Children) Act, 2000 also makes
provisions for protection of right to privacy of a juvenile in
conflict with law. The said provisions have been reproduced
hereunder.
228
S . 2 1 Prohibition of publication of name, etc. of
juvenile involved in any proceeding under t h e
Act - ' (1) No report in any newspaper, nnagazine,
news-sheet or visual media of any inquiry regarding a
juvenile in conflict with law under this Act shall
disclose the name, address or school or any other
particulars calculated to lead to the identification of
the juvenile nor shall any picture of any such juvenile
be published :
Provided that for reasons to be recorded in writing the

authority holding the inquiry may permit such
disclosure, if in its opinion such disclosure is in the
interest of the juvenile.
(2) Any person contravening the provisions of sub-
section (1) shall be punishable with fine, which may
extend to one thousand rupees.
S- 5 1 Reports to be treated as confidential - (1) The

report of the probation officer or social worker
considered by the competent authority shall be
treated as confidential;
Provided that the competent authority may, if It so

thanks fit, communicate the substance thereof to the
229
juvenile or the child or his parent or guardian and may
give such juvenile or the child, parent or guardian an
opportunity of producing such evidence as may be
relevant to the matter stated in the report.
It is submitted that though Section 21 Is of great value for

protecting the right to privacy of the juvenile, still
unfortunately it is observed that many times the reports in
the newspapers are so published that the identity of the
juvenile or victim is almost disclosed. Further the sub-
section (2) of Section 21 provides only for a meagre fine to
be imposed on the person contravening the provisions
thereof. As a matter of fact, the fine stipulated is
inadequate. Further the said clause should also provide for
punishment alongwlth fine as it would have more deterrent
effect on the wrongdoers.
It is further submitted that Section 51 provides that the

reports of the competent authorities shall be treated
confidential. This provision confers discretion on the
cornpetent authorities by providing that it may, if it thinks
if, disclose substance thereof to the juvenile, his parents or
guardian. Now the question arises that after advent of Right
to Information Act, 2002, such confidentiality would stand
the provision of Right to Information Act or its effect would
230
be diluted? The time to come can only give answer to this
question.
Conclusion
In light of above discussion we may conclude for this
Chapter that at present, in Indian Penal Code and Juvenile
Justice (Care and Protection of Children) Act, 2000 there
are sufficient provisions which, if properly and effectively
implemented, then go a long way in protecting the Interest
of the Indian children. The Juvenile Justice Act of 2000 has
come with a new ray of hope in the legal world. The Act has
many significant provisions which were missing in earlier
similar legislations. Now the only requirement is proper
administration and implementation of the provisions of this
Act by implementing and law enforcement agencies. In this
regard, it may also be necessary to mention that the
judiciary has also not legged behind in protecting the rights
of juveniles in conflict with law and juvenile in need of care
and protection. Wherever the instances as to infringement
of rights of the children are brought to the notice of the
judiciary, it has heavily come down upon the wrongdoers. I t
is hoped that it will continue to contribute in the same
manner in the time to come.
231
4 . 3 Provisions relating to Cliild under Code
of Criminal Procedure
As Code of Civil Procedure, 1908 is a procedural law for civil

actions, the Code of Criminal procedure, 1973 is the
procedural law for criminal matters. Prior to Code of
Criminal Procedure, 1973, there was Code of Criminal
Procedure, 1898 which was passed during the British India.
The new Act was passed by the both the houses of
Parliament in the year 1973 and after receiving Presidential
assent, it came into force on 1^*^ April 1974. The new Code
repealed the Old Code of the year 1898. The Statement of
Objects and Reasons, states that the systematic
examination of the Code was undertaken by the Law
Commission not only for giving concrete form to the
recommendations made in the 14'^'^ Report on the Reform of
Judicial Admini^ration, but also with the object of
attempting a general revision. The main task of the
Commission was to suggest measures to remove anomalies
and the ambiguities brought to light by conflicting decisions
of the High Courts or otherwise, to consider local variations
with a view to securing and maintaining uniformity, to
consolidate laws wherever possible and to suggest
improvements where necessary. A comprehensive report
for the revision of the Code, namely, the Forty-first Report
232
was presented by the Law Commission in September,
1969^
It may be noted tliat after advent of Juvenile Justice Act,

most of the criminal matters where child is accused (in
ordinary sense), are governed by Juvenile Justice Act. The
said Act is a self contained Code, which has both, the
substantive as well as procedural provisions. Therefore, the
applicability of the Criminal Procedure Code, 1973 has
become very limited in the matters relating to children.
However, Section 125 of Criminal Procedure Code
(hereinafter referred to as Cr.P.C. for the sake of brevity
and convenience) is one of the important provisions
pertaining to law relating to children In India. It would
therefore be expedient to discuss the relevant portion of the
said provision In detail.
S- 125 : (1) If any person having sufficient means negiects

or refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority,
where such child is, by reason of any physical or
^ Tondon M. P., Criminal Procedure Code, la*^ Ed. 2001
233
mental abnormality or injury unable to maintain
itself, or
(d)
a Magistrate of the first class may, upon proof of such

neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate not exceeding
five hundred rupees in the whole, as such Magistrate
thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct;
Provided that the Magistrate may order the father of a

minor female child referred to in clause (b) to make such
allowance, until she attains her majority, if the
Magistrate is satisfied that the husband of such minor
female child, if married, is not possessed of sufficient
means.
Explanation - For the purpose of this Chapter, -

(a) ' minor' means a person who, under the provisions
of the Indian Majority Act, 1875 is deemed not to
have attained his majority;
(b) ' wife' includes a woman who has been divorced by,
or has obtained a divorce from, her husband and
has not remarried.
234
(2) Such a//owance s/ia// be payable from the date of
ordeo or, if so ordered, from the date of application
for maintenance.
(3) If any person so ordered fails without sufficient cause

to comply with the order, any such Magistrate may,
for every breach of the order, issue a warrant for
levying the amount due in the manner provided for
levying fines, and may sentence such person, for the
whole or any part of each month's allowance
remaining unpaid after the execution of the warrant,
to imprisonment for a term which may extend to one
month or until payment if sooner made.
Provided that no warrant shall be Issued for the

recovery of any amount due under this section unless
application be made to the court to levy such amount
within a period of one year from the date on which it
becomes due.
Provided further that if such person offers to maintain

his wife on condition of her living with him, and she
refuses to live with him, such Magistrate may consider
any grounds of refusal stated by her, and may make
an order under this section notwithstanding such
235
offer, if he is satisfied tfiat there is Just ground for so
doing.
Explanation - If a husband has contracted marriage

with another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal to
live with him.
(4X No wife shall be entitled to receive any allowance from

her husband under this section if she is living in
adultery or if without any sufficient reason, she
refuses to live with her husband, or if they are living
separately by mutual consent
(5) On proof that any wife In whose favour an order has

been made under this section Is living in adultery, or
that without sufficient reason she refuses to live with
her husband, or that they are living separately by
mutual consent, the Magistrate shall cancel the order.
India is a country of diverse cultures and religions.

However, we may note that even in this diversity, there is
uniformity in one sense. That is, in Indian culture, the Head
of the family has always been regarded as a person
responsible to take care of the family in all respects. Even
as per vedic Hindu law the Karta of the family has been
236
given several powers and he is imposed with several duties.
Thus, generally in a family consisting of a male, his wife
and children, the male i.e. father is considered to be head
of the family and is entitled to take almost all important
decisions relating to the family. At the same time he is also
responsible to maintain his family. The law has not
specifically provided that a male head of the family shall
have all the powers to decide as to family matters, but
there are provisions in personal laws of Hindu and Muslim,
whereby such inference can be drawn. However, the
responsibility of maintenance has been specifically imposed
upon him by specific provisions of law. The provisions
relating to maintenance are scattered and they have been
incorporated at appropriate places in various statutes. One
of such provisions is Section 125 of Criminal Procedure
Code, 1973.
This provision incorporates the pious obligation of a man as

a son, as a husband and as a father. Thus, he is liable to
maintain his wife, if she is unable to maintain herself. He is
liable to maintain his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself. He is also
liable to maintain his legitimate or illegitimate child (not
being a married daughter) who has attained majority,
where such child is, by reason of any physical or mental
abnormality or injury, unable to maintain Itself. By virtue of
237
clause (d) of section 125, the liability under this provision
extends even to the maintenance of his father or mother,
unable to maintain himself or herself.
Thus, we may refer to section 125 as a social welfare

provision which has its fountain source in the provisions of
Indian Constitution. It may be noted that our Constitution,
in Article 15(3), provides that the State shall have power to
make protection discrimination in favour of women and
children. Further there are several provisions in Part IV
Directive Principles of State Policy, which impose duty on
the State to direct its policies towards welfare and
betterment of women and children for instance Article 39,
45 etc. The State has made several laws to the tune of said
provisions. This provision is one of it which imposes duty on
a man to maintain his wife and children^.
The term ' m i n o r ' as used in this section has not been
specifically defined. For the purpose of application of this
section, the term " m i n o r ' means a person who, under the
provisions of the Indian Majoriy Act, 1875, is deemed not to
have attained majority^. Thus, here also the same definition
of minor has been adopted which is applicable for contracts
^ see Balan Nair v. Bhavani Amma Valsalamma and others, AIR 1987 Ker. 110 cited in Criminal
Procedure Code, M. P. Tondon, 12* Edition
^ Explanation (a) to S. 125 of Code of Criminal Procedure
238
etc. In case of a child, the natural presumption would arise
that it is not able to maintain itself.
The right of a child to be maintained under this section

appears to be an absolute right. This right is available not
only to legitimate but also illegitimate children. In other
words, even though the marriage between the parents Is
not a valid marriage or even if the parents of such child
were never married still child will have right to be
maintained by its father. The only thing which is required to
be proved is the paternity of the child. Where paternity is
not established, the child is not entitled to maintenance^ In
a recent case^, the accused married to another woman
during the subsistence of his first marriage. He also had an
offspring out of second marriage. High Court granted
maintenance to both - second wife as well as child born out
of second marriage. Supreme Court held that High Court
erred in granting maintenance to second wife. But
fortunately (and in the best interest of the child) the
Hon'ble Supreme Court refused to interfere in maintenance
order by the High Court to be paid to the child born out of
second marriage.
^ Smt. Ahalya Bariha v. Chhellia Pedhan, 1992 Cr U ( 493) (Orissa)

^ Khemchand Om Prakash Sharma v. State of Gujarat, (2000) 3 SCC 753
239
It may further be noted that courts have been lenient in the
matters of granting maintenance to the children. So much
so that even when the mother is proved to be a woman of a
bad character still once it is proved that the person against
whom she proceeds for maintenance of her child is the
father of such child, the court has granted maintenance^.
Even the child born out of a marriage which has been

annulled by the decree of the Court, would be entitled to
maintenance^.
In the matter of deciding paternity with the help of

technological advancement, there are two judgements
which are important and pertinent here. In first case^, a
person challenging paternity of daughter born to his wife
sought orders for blood-test. The Hon'ble Supreme Court,
while rejecting the prayer laid down the following
principles:-
(1) Courts in Indian cannot order blood-test as a

matter of course.
' Hira Lai v. Saheb Jan (1895) 18 All 107; Lingappa Goundan v. Esudasan (1908) 27 Mad. 13; Dr.
Chathukutty v. Janaki Amma 1972 Cr. L. J. 696 cited in Ratanlal & Dhirajlal's Code of Criminal
Procedure (2004)
^ Prem Chand Mahto v. Laxmi Devi, 2003 Cr. U 3242 (Jhar..)
^ Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295 Ibid
240
(2) Wherever applications are made for such prayers in
order to have roving enquiry, the prayer for blood-
test cannot be entertained.
* (3) There nnust be a strong prima-facie case in that the
husband must establish non-access in order to
dispel the presumption arising under section 112 of
the Indian Evidence Act.
(4) The court must carefully examine as to what would
be the consequence of ordering the blood-test;
whether it will have the effect of branding a child as
a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood
for analysis.
However, mysteriously in another case^. Supreme Court

held that when a person refused to undergo the DNA test to
ascertain paternity, he shall be disentitled from disputing
the paternity.
As to qantum of maintenance amount. Section 125 speaks

of a sum of Rs. 500 ' in the whole'. However, various States
have made State Amendments in this provision and revised
and enhanced the amount. Madhya Pradesh has raised the
amount of maintenance from Rs.500 to Rs.3000.
Maharashtra has raised the amount to Rs. 1500/-.
' Dwarika Prasad Satpathy v. Biduyt Prava Dixit, (1999) 7 SCC 675
241
Rajasthan has raised the amount to Rs.2500/- Tripura has
revised the amount to be Rs.1500/-. Uttar Pradesh has
raised to amount to the tune of Rs.5000/-. West Bengal has
raised the amount to Rs. 1500/-.
4-4 Provisions relating to Child under

Indian Evidence Act. 1 8 7 2
4.4.1 Introduction
The law of evidence in India is contained under Indian
Evidence Act, 1872. The law of evidence does not affect
substantive rights of parties but only lays down the law for
facilitating the course of justice. The Evidence Act lays
down the rules of evidence for the purposes of the guidance
of the courts. It is procedural law which provides, inter alia,
how a fact is to be proved^
It is well settled rule in law that in the larger interest of

substantial justice, be it a civil suit or criminal trial, the
rules of natural justice are to be followed without fail. One
of the rules of natural justice is audi alteram partem, which
means the parties should be given the fair chance to be
heard/ In a criminal trial, both the parties viz. prosecution
as well as defence side, are permitted to put forth their
' Ram Jas v. Surendra Nath, AIR 1980 A11.385 cited in Principles of The Law of Evidence - By
Dr. Avtar Singh, 15"" Ed. 2005
242
case. This including adducing or laying down tlie evidences
on their behalf. Such evidences may be oral or
documentary. The term evidence as defined in S. 3 of
Indian Evidence Act, means and Includes - (1) all
statements which the court permits or requires to be made
before it by witnesses, in relation to matters of fact under
Inquiry; such statements are called oral evidence; (2) all
documents, including electronic records, produced for the
Inspection of the Court; such documents are called
documentary evidence. Thus, the definition of the term
'evidence' under the Act is inclusive but not exhaustive. It
includes both oral as well as documentary evidences. Oral
evidence is described to mean calling the witness to depose
on behalf of the concerned party to the litigation. The
deposition by a witness in court of law has great value and
affect on the matter. The law does not put specific condition
as the number of evidences. Sometimes, even a single oral
evidence is accepted to be conclusive for deciding the
matter. However, oral statements of witnesses become
evidence only when the right and opportunity is given to
the opposite party to cross-exannine, failing which, they
remain only bare statements^. Thus, a witness is called in
witness box and administered the oath. After that the
examination-ln chief Is taken by the party who called that
witness. Then the other side is given opportunity to cross
' Syed Md. Husain Aftiquar v. Mirza F. Beg (1932) 8 Luck. 135 Ibid
243
examine the witness. Sometimes, re-examination is also
permitted.
Thus, the law of evidence deals with laying down the

evidences and the weightage thereof. It may be mentioned
here that it is a procedural law for both civil as well as
criminal matters. In other words, we do not have separate
evidence laws for civil and criminal matters. The principles
as laid down as to evidence, applies both to civil as well as
criminal matters equally, unless the context otherwise
requires.
Thus one of the principal ways of adducing evidence is

calling the witness in witness-box and examining him to
depose as to the facts of the case. The law of evidence has
not any reservation as to the age of the witness. The age of
the person is not a disqualification as it is in some other
cases. However, that does not mean that law has totally
done away with the competency of witness. The testimony
can be accepted only when the witness is competent to
witness. The relevant provision under Indian Evidence Act is
section 118 which has been discussed hereunder in detail.
4 . 4 . 2 Who may testify?

All persons shall be competent to testify, unless the Court
considers that they are prevented from understanding the
244
questions put to them, or from giving rational answers to
tiiose questions, by tender years, extreme old age, disease,
whether of body or mind, or any other cause of the same
kind^
Explanation to this provision further states that a lunatic is

not incompetent to testify, unless he is prevented by his
lunacy from understanding, the questions put to him and
giving answers to them.
Thus this provision makes it clear that any person can

testify unless there is sound and reasonable ground (as
mentioned in the provision itself) to reject or not admit his
testimony. And the grounds are tender years, extreme old
age, disease, whether of body or mind, or any other cause
of the same kind. The only requirement of the provision to
admit the testimony of a witness is that he should be able
to understand the questions put to him and to Qive rational
answers to him.
The law does not prescribe a particular age below which a

person is not able to testify. Thus, this section confers a
wide discretion on the court to decide whether witness is
competent to be so or not. Thus the tender years of age is
not per se disqualification for a child to be a witness. The
' Section 118 of Indian Evidence Act, 1872
245
intellectual capacity of a child to understand questions and
to give rational answers thereto is the sole test of
testimonial competency^.
However, in India, while deciding the cases on the basis of

sole testimony of a child, the Courts seem to have been bit
cautious in relying the testimony of the child. This is for
obvious reasons one of which is that there is inherent
danger of getting misled by relying solely on child
testimony. The Courts are of the view that even though the
testimony of the witness is found to be trustworthy on
facts, still careful scrutiny of the evidence is required^. In
one case^, the Court observed that the difficulty with child
witnesses often is that they can be made to believe in
things which they have themselves not seen and this belief,
when once it gets hold of a child witness. Is difficult to
state. It is also well-known that child witnesses can be
tutored much better than adults and further that when once
a child witness has been properly tutored then such a child
witness cannot easily be shaken in cross-examination.
However, this observation of court seems to be quite
consistent with natural tendency of the children. The reason
being that though children can be tutored easily, still it
' Santosh Roy v. State of W. B., 1992 Cr. L. R. (Cal) 5 : 1992 Cr. L. J. 2493 cited in Batuk Lai's
Law of Evidence in India, 4* Ed. 1996
^ S. G. Mohite v. State of Maharashtra, AIR 1973 SC 55
^ Ram Hazoor Pandey v. State, AIR 1959 AIL 409 cited in The Law of Evidence, by Avtar Singh,
IS^-Ed.
246
cannot be firmly said that they will answer the same way in
the court as they have been tutored. Secondly, when a child
witness is tutored, the observation of the court is that it
cannot be shaken easily. This is also very difficult to
perceive. Rather children, though susceptible, can be very
easily proved wrong by good lawyers with different
techniques of putting the questions in different manners. So
when the child is answering something tutored, it can easily
be proved wrong.
Sometimes, even the persons of seven or eight years have

been allowed to depose if they were found capable of
understanding the question and giving rational answers to
those questions^. I n respect of a child witness of 13 years
of age, the Hon'ble Supreme Court observed that a lad of
13 years of age in our country particularly living In rural
areas cannot be taken to be a child. A vast majority of boys
around about that age go to fields and to do men's work
they are certain capable of understanding the significance
of the oath and the necessity to speak the truth^. As to
competence of a child studying in 8^" Std., the Supreme
Court^ observed that such child these days develops
sufficient understanding to perceive facts and to narrate
' Rameshwar v. State of Rajasthan, AIR 1952 SC 54 cited in Batuk Lai's Law of Evidence in
India, 4* Ed. 1996
^ Tehal Singh v. State of Punjab. AIR 1979 SC 1347 Ibid
^ Bhagwan Singh v. State of MP, AIR 2003 SC 1088 cited in The Law of Evidence, by Avtar
Singh, 15* Ed.
247
them. Thus, the court has also taken judicial cognizance of
the fact that nowadays the mental growth of the children
takes place comparatively early. The children, these days,
are becoming matured at early years of their age.
The Allahabad High Court^ has observed that the court

must, by preliminary examination test his capacity to
understand and give rational answers and must form an
opinion as to the competency of the witness. However,
Gauhati High Court^, observed that his evidence does not
become Inadmissible in evidence in absence of such
preliminary examination. Thus, it can be said that it is
desirable to ascertain competency of child witness by
putting preliminary questions. However, omission to do so
would not vitiate his testimony altogether.
It is well-settled In India that a witness, at the time of

deposing before judge, is administered oath. This is the
requirement laid down under Oaths Act, 1969. The question
arises that if a child is unable to take oath or if there is
omission in administering oath to a child, whether his
testimony would be admissible? The Rajasthan High Court^
has held that once the child is found competent, his inability
^ RsHftK-MSyOT PTOdt,';^ •^. Svate, MR1959 MI-W9 citedavS-B&aktjal'sljzNi wf E'^vda-acamliiâ,

4* Ed. 1996
^ Kabiraj v. State of Assam, 1994 Cr. L.J. 432 (Gau.) Ibid
^ Bhagwania v. State of Raj. 2001 Cr U 3719 (kaj.); Ghewar Ram v. State of Raj. 2001 Cr U
4460 (Raj.) cited in Ratanlal & Dhirajlal's The Law of Evidence, 21" Ed. 2004
248
to take or understand oath or omission In administering It,
neither invalidates the proceedings nor renders his evidence
inadmissible. The proviso to Section 5 of the Oaths Act
prescribes that when a witness Is a child under 12 years of
age and the court considers that though he understands the
duty of speaking the t r u t h , he does not understand what
oath means, the Court may dispense with the
administration of oath. But the Judge should always, when
dispensing with an oath, make a clear record that he was
satisfied that the child understands the duty to speak the
truth and should also state his reason for thinking so^.
Thus, it may be said that administration of the oath (as far
as child witness is concerned) is a merely procedural
formality and can be dispensed with In appropriate cases.
In earlier paragraphs, it is discussed the credibility of child

witness in cases where wrong is done by a wrongdoer
against some else. The question arises that when a child
witness itself is victim of sexual assault by the accused,
whether her sole evidence would suffice without further
corroboration? It is heartening to note that the courts have
taken lenient view in such cases without indulging into
technicalities of requiring corroboration of every fact
narrated by the prosecutrix. The Court observed that a
^ Badi Guravaiah v. State of AP, 1994(2) ALT 261 cited in Batuk Lai's Law of Evidence in India,
4* Ed. 1996
249
prosecutrix of a sex offence cannot be put on par with an
accomplice. She is in fact a victinn of a rape. The Evidence
Act nowhere says that her evidence cannot be accepted
unless it is corroborated in rrrateria! particulars^. In another
case, a rape victim was a girl of seven years, having clear
understanding and adequate intellectual capacity in
narrating act of rape. The court observed that mere
omission to record certificate that she understood her duty
to tell the truth before court does not affect admissibility of
her evidence in most of the material particulars, the
prosecution case is corroborated by substantial evidence. It
is not the rule of law that every material particulars in
evidence of the should stand corroborated by the evidence
that was adduced. Therefore, the evidence of the child
witness could be relied upon in the absence of corroboration
on all material particulars^.
' State of Maharashtra v. C K Jain, AIR 1990 SC 658 cited in The Law of Evidence, by Avtar
Singh, 15"^ Ed.
^ Narayan Iranna Patkanthi V-State of Maharashtra, 1994 C r U 1752 (Bom.) cited in Batuk Lai's
Law of Evidence in India, 4"^ Ed. 1996
250
Chapter - 5
THE POSITION OF AN UNBORN
CHILD I N LAW
5.1 Prelude
5.2 Right to life
5.3 Female foeticide and infanticide
5.4 Provisions in Criminal Law
5.5 Medical Termination of Pregnancy Act, 1 9 7 1
5.6 Pre-natal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act, 1 9 9 4
251
Chapter - 5
THE P O S I T I O N OF A N U N B O R N
C H I L D I N LAW
5 . 1 Prelude
We are human beings. We, by our very nature, cannot live

in isolation. We iive in society. Being part of ttie society, we
are governed by tlie rules made by a social system that
governs the conduct of every human being in his personal
and social life. These rules are written or sometimes
unwritten. Here, in the present study, we are not much
concerned with those unwritten rules of the society (though
in fact they have great impact on the human conduct). Here
we are concerned with the recognized principles of law
either made by the legislature or evolved by the judiciary.
India is a country with distinct and marked culture and

social philosophy. It sometimes even reflects in our laws.
We Indians believe that the life is a gift of God. I t is God
only who can give us or take away life. Therefore,
committing suicide is considered to be pataka (a sin) in our
society. Similarly, taking away iife of another person
(except in some accepted situations) is also a sin. During
this given period of human life, one has to perform his
kartvya (i.e. to perform his duties and obligations).
252
Then the interesting question arises when does this life
begins. In common parlance this period of life starts with
one's birth and ends with his death. But this is not the
whole truth. As a matter of fact the human life begins not
only upon birth but it begins when a child is in its mother's
womb. Even Hindu mythology supports this proposition. As
per Hindu mythology (in Mahabharata), when Abhimanyu
was in his mother's womb, Lord Shrikrishna narrated his
mother how to break into the Chakravyuha. Abhimanyu, a
child in womb, listened to the narration and during well
known war between Pandavas and Kauravas he has applied
the same technique to break into the Chakravyuha.
Even modern medical science agrees that life begins in

womb. Since, the life begins in womb, the child in womb
needs certain legal protections apart from the protections
afforded to it by its parents. The law, therefore, endows
certain basic rights upon a person even when he is in womb
and yet to take birth. Most of these rights are contingent
upon the child's taking birth alive.
Following paragraphs, briefly discuss certain rights endowed

upon an unborn person i.e. the child in its mother's womb.
253
5.2 Right to life
First and foremost right of the unborn person is right to be

born. Right to be born is species of right to life. This is a
fundamental right and one cannot be deprived of his
fundamental right to be born.
In any civilized society, perhaps the right to life and

personal liberty is first among the most important rights of
the citizens. It is the basic and fundamental right of every
human being, as without this right the very existence of the
person Is endangered.
Our Constitution framers were very well aware of the

importance of this supreme right. Therefore, Article 21 of
Indian Constitution guarantees to every person the ' r i g h t
to life and personal liberty' by stating that, "no personal
shall be deprived of his life and persona! liberty except
according to the procedure established by law."
The right to life is not only the most precious right but at
the same time it is an inalienable rights - meaning thereby
this right cannot be alienated. In other words, this right
cannot be renounced in any way including by way of
transfer, waiver.
254
5.3 Female foeticide and infanticide
Female foeticide / infanticide is sometiiing not unknown to
tlie Indian society. It Is an age-old practice in Indian society
to kill the girl child before or Immediately after birth. The
reasons are historic and they are socio-economic. The
system of 'dudh-pitl' (drowning the newborn baby in the
bucket filled with milk) was prevalent in the State of
Maharashtra and at some other places. Similar customs
were also noted in Rajput communities.
Today, such heinous things are continued but in different

forms. Advancement of medical science, which otherwise is
a blessing, proves In some cases to be Instrumental In
accomplishing such criminal and sinful acts. With medical
aid i.e. pre-natal diagnostic techniques, the gender is
determined while the child is in womb and if it is found that
the would-be child is female then It is aborted. Though the
Instances reported are not on large scale still they are
alarming. Because even slightest violation of human rights
of unborn or newborn babies cannot be tolerated in 21^*
Century. Perhaps the only reason behind female foeticide or
infanticide is that in our society it Is deep-rooted belief that
a son after he is grown up, would help his parents
economically. He would fetch dowry. He would take care of
his parents in their old-age. Whereas, a girl child Is
considered to be paraki-thapan (an asset belong to
255
somebody else). One day she is to leave her maternal home
forever leaving her parents alone. Further, as per customs
prevailing in many Indian communities, a huge dowry has
to be paid to marry a girl. Parents belonging to middle class
or economically weaker sections find It very hard to find a
suitable match for their daughters as they cannot afford
paying such huge dowry. Thus, unfortunately even today, in
most of the communities, daughter Is regarded to be a
liability.
All these aforementioned reasons contribute towards the

commission of crime of female foeticide and infanticide.
Thus, a female child is deprived of its right to life.
5.4 Provisions in Criminal Law

Indian Penal Code Code, 1860 is the substantive criminal
law in India. As per Code, the causing of the death of child
In the mother's womb is not homicide. But it may amount
to culpable homicide to cause the death of a living child, if
any part of that child has been brought forth, though the
child may not have breathed or been completely born^
So far as child's right t o be born and right t o live is

concerned, IPC has exhaustive provisions In this regard..
The following provisions contained in IPC gives us an idea of
Explanation 3 to Section 299 of Indian Penal Code

256
legislature's foresight. If these provisions are used
effectively, they can substantially contribute in reducing the
rate of foeticide and infanticide.
3 1 2 . Causing miscarriage: - Whoever voluntarily causes

a woman with child to miscarry, shall. If such
miscarriage be not caused in good faith for the
purpose of saving the life of the woman, be punished
with imprisonment of either description for a term
which may extend to three years, or with fine, or with
both, and, if the woman be quick with child, shall be
punished with imprisonment of either description for a
term which may extend to seven years, and shall also
be liable to fine.
Explanation:- A woman who causes herself to

miscarry, is within the meaning of this section.
Life Is precious gift of the nature. Killing of a person by

another person is a considered to be a sin. Since the life
begins not only after birth but it begins in the womb of the
mother itself, killing a child in its mother's womb is also
considered to be a sin. Apart from this philosophy of sin,
this act of killing a child in its mother's womb is codified to
be an offence under present section of IPC. It provision
renders voluntary miscarriage or abortion a punishable
257
offence. Involuntary miscarriage or abortions are outside
the scope of present section and are not offences as there
is no voluntary act on the part of mother or any other
person to get rid of the would-be child. Rather such things
are mishap for the parents.
The present provision deals with causing miscarriage with

the consent of woman; whereas Section 313 deals with
causing miscarriage without consent of woman. The
provision is in conformity with Article 21 of Indian
Constitution which guarantees right to life. As per this
provision, if miscarriage is caused in good faith for the
purpose of saving the life of the woman then it would be no
offence.
This provision has used two terms viz (i) woman with child
and (ii) woman quick with child. Punishment for both
abortions / miscarriages is different. Let us now understand
the difference between these two terms. The term ' woman
with child' means a pregnant woman. The pregnancy starts
when the woman conceives i.e. as soon as gestation begins.
The term 'quick with the child' is a later or say advance
stage of pregnancy. This term has been explained in PSA
Pillai's Criminal Law^, in the following words :-
1 PSA paiai's Criminal Law, 9* Ed.

258
"The term 'quick with child' refers to a more advanced
stage of pregnancy. 'Quickening' is the perception by the
mother that the movement of the foetus has taken place or
the embryo has taken a foetal form. This term arises from
the old notion that a foetus becomes endowed with life and
secures an identity apart from the mother, when the
movements are felt by the mother."
3 1 3 . Causing miscarriage witfiout w o m a n ' s consent:-

whoever commits the offence defined in the last
preceding section without the consent of the woman,
whether the woman is quick with child or not, shall be
punished with imprisonment for life or with
imprisonment of either description for a term which
may extend to ten years, and shall also be liable to
fine.
Causing miscarriage without or without consent of woman

is an offence under Sections 312 and 313. However,
sometimes, the exigency of the situation or circumstances
require that miscarriage is caused. This rnay be required to
protect a woman against the danger to her life on account
of such pregnancy. In such cases, termination of pregnancy
is permitted, though it may amount to killing the child in
womb.
259
3 1 4 . Death caused by act done with intent to cause
miscarriage: - whoever, with intent to cause the
miscarriage of woman with child, does any act which
causes the death of such woman, shall be punished
with imprisonment of either description for a term
may extend to ten years, and shall also be liable to
fine.
I f act done without woman's consent:- And if the

act is done without the consent of the woman, shall be
punished either with imprisonment for life or with the
punishment above mentioned.
Explanation: - It is not essential to this offence that

the offender should know that the act is likely to
cause death.
3 1 5 . Act done w i t h intent to prevent child being born

alive or to cause it to die after birth: - Whoever
before the birth of any child does any act with the
intention of thereby preventing that child from being
born alive or causing it to die after its birth, and does
by such prevent that child from being born alive, or
causes it to die after its birth, shall, if such act be not
caused in good faith for the purpose of saving the life
of the mother, be punished with imprisonment of
260
either description for a term which may extend to ten
years, or with fine, or with both.
3 1 6 . Causing death of quick unborn child by act

amounting to culpable homicide:- whoever does
any act under such circumstances, that if he thereby
caused death he would be guilty of culpable homicide,
and does by such act cause the death of a qulcl<
unborn child, shall be punished with imprisonment of
Illustration
A, knowing that he is likely to cause the death of a
pregnant woman, does an act which, if it caused the
death of the woman, would amount to culpable
homicide. The woman is injured, but does not die, but
the death of an unborn quick child with which she is
pregnant is thereby caused. A is guilty of the offence
defined in this section.
3 1 7 . Exposure and abandonment of child under

twelve years, by parent or person having care of
it.- Whoever being the father or mother of a child
under the age of twelve years, having the care of such
child, shall expose or leave such child in any place
with the intention of wholly abandoning such child,
261
description for a term which may extend to seven
years; or with fine, or with both.
Explanation.- this section is note intended to prevent

the trial of the offender for murder or culpable
homicide, as the case may be, if the child die in
consequence of exposure.
3 1 8 . Concealment of birth by secret disposal of dead

body- - whoever, by secretly burying or otherwise
disposing of the death body of a child whether such
child die before or during its birth, intentionally
conceals or endeavours to conceal the birth of such
child, shall be punished with imprisonment of either
description for a term which may extend to two years,
or with fine, or with both.
5.5 Medical Termination of Pregnancy Act,

1971
In the year 1971, Medical Termination of Pregnancy Act was
passed. This Act is to provide for the termination of certain
pregnancies by registered medical practitioners and for
matters connected therewith or incidental thereto. It also
extends protection to woman against illegal abortions
against her will. Under this Act, the termination of
262
pregnancy is permissible when the qualified medical
practitioner is of the opinion t h a t -
(i) The continuance of the pregnancy would involve a risk
to the life of the pregnant woman or of grave injury to
her physical or mental health; or
(ii) There is a substantial risk that if the child were born,
it would suffer from such physical or mental
abnormalities as to be seriously handicapped.
The Act provides^ that where the length of pregnancy does

not exceed 12 weeks opinion of one qualified medical
practitioner would suffice. But when such length exceeds 12
weeks then opinion of two qualified medical practitioners
would be required. Further such opinion has to be formed in
good faith. The Act does not permit termination of
pregnancy after 20 weeks.
The condition as to the length of the pregnancy and the

opinion of not less than two registered medical
practitioners, shall not apply to the termination of a
pregnancy by a registered medical practitioner in a case
where he is of opinion, formed in good faith, that the
termination of such pregnancy is immediately necessary to
save the life of the pregnant woman^.
1 Section 3 of Medical Termlniation of Pregnancy Act, 1971

2 Section 5(1) of Medical Termination of Pregnancy Act, 1971
263
Explanation I to Section 3 clarifies that where any
pregnancy is alleged by the pregnant woman to have been
Caused by rape; the anguish caused by such pregnancy
shall be presumed to constitute a grave injury to the mental
health of the pregnant woman.
Explanation I I to Section 3 further clarifies that where any

pregnancy, occurs; as a result of failure of any device or
method used by any married woman or her husband for the
purpose of limiting the number of children, the anguish
caused by such unwanted pregnancy may be presumed to
constitute a grave injury to the mental health of the
pregnant woman.
These provisions came up for interpretation before Madras

High Court in case of D. Rajeswari V. State of Tamil
Nadu^. In this case, an eighteen year old school-going girl
filed a petition before the court to get a direction by the
court for termination of her pregnancy. I t was proved that
she was a rape victim and her pregnancy was the result of
that unfortunate incidence. The court allowed the petition
and held that refusal to her prayer would not only cause
1 1996 Cr.L.J. 3795 cited in Encyclopaedia of Laws of the Child in India -by S P
Shaw
264
mental shock and anguish but also cause irreparable loss to
her.
The prior consent of the wonnan must be obtained before

terminating pregnancy. When the woman is minor or lunatic
the consent of the guardian is to be obtained. Further such
termination of pregnancy can take place only at the
hospitals maintained or established by the Government or
the hospital approved by the Government for this purpose.
However, this condition may be dispensed with in a case
where the medical practitioner is of opinion, formed in good
faith, that the termination of such pregnancy is immediately
necessary to save the life of the pregnant woman.
It may be noted here that the requirement of consent of the

women is sine qua non in all cases. The question then
arises what will happen when a pregnant women is minor
and guardian wishes to terminate her pregnancy against
the will of such minor pregnant women? The Madras High
Court held in V. Krishnan V. C.Rajan Alias Madipu
Rajan^,.that against the will of minor pregnant women,
even the guardian cannot get any such order of termination
of her pregnancy from the court.
1 (1994)1 Mad. L.W. (Or.) 16 cited in Encyclopaedia of Laws of the Child in India
265
The Act further provides that the termination of a
pregnancy by a person who is not a registered medical
practitioner shall, be an offence punishable under that
Code, and that Code shall, to this extent, stand modified^.
Section 8 of the Act provides protection to the actions taken

in good faith by providing that, "No suit or other legal
proceeding shall he against any registered medical
practitioner for any damage caused or likely to be caused
by anything, which is in good faith done or intended to be
done under this Act."
Thus this Act has come up as an exhaustive piece of

legislation to curb illegal abortions. Consequently, all those
abortions sorted by parents for the sake of convenience and
not as a need can be avoided. Resultantly, the life of all
such unfortunate forthcoming babies is saved.
5.6 Pre-natal Diagnostic Tecliniques

(Regulation and Prevention of Misuse)
Act, 1994
Today medical science has made many remarkable
achievements. This advancement of medical science and
technology has a great share in reducing the mortality rates
1 Section 5(2) of Medical Termination of Pregnancy Act, 1971
266
the world over. But as it is said, every advancement has Its
own inherent hazards. San}e is the case with pre-natai
diagnostic techniques. As a matter of fact this technology
helps in detecting genetic or metabolic disorders or
chromosomal abnormalities or certain congenital
malformations or sex-linked disorders. Besides this, this
technology can be used for pre-natal sex determination.
Here 'pre-natal diagnostic test' means ultrasonic or any
test or analysis of amniotic fluid, chorionic villi, blood or any
tissue of a pregnant woman conducted to detect genetic or
metabolic disorders or chromosomal abnormalities or
congenital anomalies or haemoglobinopathies or sex-linked
diseases^.
The Act in statement of objects and reasons observes, " I t is

proposed to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female
foeticide. Such abuse of techniques is discriminatory
against the female sex and affects the dignity and status of
women. A legislation is required to regulate the use of such
techniques and to provide deterrent punishrnent to stop
such inhuman act."
The Act, inter alia, provides for -
^ Section 2(k) of Pre-natal Diagnostic Techniques (Regulation and Prevention of

Misuse) Act, 1994
267
(i) prohibition of misuse of pre-natal diagnostic
techniques for determination of sex of foetus,
leading to female foeticide;
(ii) prohibition of advertisement of pre-natal diagnostic
techniques for the purpose of detection or
determination of sex;
(ill) permission and regulation of use of pre-natal
diagnostic techniques for the purpose of detection
of specific genetic abnormalities or disorders;
(iv) permitting the use of such techniques only under
"certain conditions by the registered institutions;
and
(v) punishment for violation of the provisions of the
legislation.^
Thus Section 6 of the Act specifically prohibits pre-natal

diagnostic tests for determination of sex. Whereas Section
22 prohibits advertisements relating to pre-natal
determination of sex. The same section make such
advertisement in contravention of this provision punishable
with a term which may extend to three years and with fine
which may extend to ten thousand rupees. Explanation
attached to this section makes it clear that for the purpose
of this section 'advertisement' includes any notice, circular.
^ See - Statement of objects and reasons - clause (2) of of Pre-natal Diagnostic

Techniques (Regulation and Prevention of Misuse) Act, 1994
268
label, wrapper or other document and also includes any
visible representation made by means of any light, sound,
smoke or gas. Every offence under this Act shall be
cognizable, non-bailable and non-compoundable^.
Besides some of the Important provisions mentioned above,

the Act has made exhaustive provisions to prevent pre-
natal diagnosis for sex determination of the foetus. It may
not be out of place to mention here that, this Act has
contributed a lot in reducing the rate of female foeticide as
the hospital establishments refuse to carry out such tests
for sex determination in most of the cases. There might be
some isolated cases of pre-natal sex determination In rural
areas but generally such cases are not noted In urban
areas. Thus this legislation has come as a ray of hope In
preventing foeticide.
Conclusion
After referring to the provisions of IPC and other specific
enactments we must also refer to one another important
provision of criminal law which ensures the ' right to life' of
an unborn child. That provision is Section 416 of Criminal
Procedure Code,1973, which stipulates that where a
pregnant woman Is awarded death sentence, the execution
1 Section 2 7 ibid
269
of the sentence shall be postponed till she Is delivered of
the child.
Thus, after appreciating the above provisions of different

legislations we can safely conclude that legislature has left
no stone unturned to prevent, prohibit and reduce the cases
foeticide or infanticide. These provisions / legislations have
far reaching impact on ensuring the would-be child his right
to life. Every child in womb has right to be born. Legislature
has recognized that right and has made specific provisions
in different legislations to secure such most prominent
human right of an unborn person.
However, vigilant and concerned the legislature may be,

still the social evils like foeticide and infanticide cannot be
prevented unless the provisions of laws are effectively
implemented and enforced. The offenders of such heinous
acts should be mercilessly treated. The fear of punishment
would have great deterrent effect and consequent reduction
in the rate of foeticide and infanticide. At the same time, we
cannot solely depend on law and law enforcement
machineries. We need to generate overall social awareness.
Once the society is awaked as to the rights of an unborn
child, the day is not far when we would succeed in totally
abolishing this evil from our society.
270
Chapter - 6
CHILD LABOUR AND
LEGAL IMPLICATIONS
6.1 Prelude
6.2 Children under Bonded Labour
6.3 Child Labour : International Scenario
6.4 Child Labour : Domestic Scenario

6.4.1 The Indian Constitution
6.4.2 Child Labour : Legislative Framework
6.5 Child Labour : Causes and Factors
6.6 Judicial Response
271
Chapter - 6
C H I L D LABOUR A N D
LEGAL I M P L I C A T I O N S
I am the child.
All the world waits for my combing.
All the earth watches with interest to see what I shall
becom.e.
Civilization hangs in the halancCf
For what I am, the world of tomorrow will be,
I am the child.
You hold in your hand my destiny.
You determine, largely, whether I shall succeed or fail.
Give me, I pray you, these things that make for happiness.
Train me, I beg you, that I may be a blessing to the world.
Mamie Gene Cole
6.1 Prelude :
There would be no second opinion in condemning Cliild
Labour and declaring it as a social evil. The causes and
factors that drives a child to work; at the cost of his
physical, intellectual and productive growth; may have its
own socio-economic implications. But it remains an
undeniable fact that the evil of child labour, rather social
evil, is a necessary evil encompassing with traditional
practices. Several such charitable conditions and
272
compulsions drive botii the parents and tiie child to follow
the legacy.
Social reformists and social activists have been trying to

change the situation by eradicating Child Labour in its
totality, but in Third World Countries like India, it is
practically different to do so.
Even today, a large number of cases of child labour are

prevalent in various sectors. It has gained importance as a
core research area wherein hundreds of researches have
been carried out on this very topic and millions of pages
have been written on Child Labour highlighting the pitfalls,
drawbacks and bottlenecks in the present law and legal
systems; and with impracticable solutions.
Large number of legislations, rules and notifications have

been specifically directed towards prevention and abolition
of Child Labour. Unfortunately, even after all this, we have
not been able to reduce the cases of child labour - leave
apart its complete abolition. All agree that total eradication
of Child Labour is not possible under the prevailing
situation; at the same time all agree that the problem could
be mitigated to a larger extent. At the same time, we must
also acknowledge the significant role played by NGOs and
legislature in this behalf. Looking to the gravity of the
273
matter, large number of NGOs and public spirited persons
have taken personal interest In the matter. They did carry
on a lot of field work to find out the cases of child labour
and bring the same to the notice of appropriate authorities.
Many Public Interest Litigations have also been filed by
them in the various High Courts and Supreme Court in past.
Judiciary has also recognized the laudable role played by
such agencies and has, from time to time, important
directions and guidelines to eradicate the problem of child
labour. However, somehow, we sometimes feel that we
have not succeeded in eradication this social evil. In the
following paragraphs, an attempt has been made to
examine various legislations, orders, rules, notifications etc.
in this regard. The role of NGOs and judiciary has also been
duly examined.
The X h i l d Labour' is a term which is not capable of having

any exact connotation. It has neither been defined in
Constitution or in any other specific legislation in this
behalf. ' Child', therefore Is a person who has not attained
the age of majority. And ' Labour' is ascertained on the
basis of nature of work. As per the study conducted by
Committee on Child Labour (1979), Singh and others have
attempted to define this menace as, "Child Labour means a
working child who is between 6 and 15 years of age". V. V.
Giri maintains that the term "Child Labour is commonly
274
interpreted in two different ways: first, as an economic
practice and second, as a social evil. In assessing the
nature and extent of social evil, it is necessary to take into
account the character of the jobs on which children are
engaged, the danger to which they are exposed and the
opportunities of development of which they have been
defined "
Operation Research Group (Baroda) gives definition of Child

Labour as "A working child is at remunerative work, may be
paid or unpaid and busy in any hour of the day within or
outside the family."
The welfare of the children requires that a child of tender

age should be brought up in the atmosphere of love and
affection by his parents and the society. He should be
provided with due care and best education, as today's child
is tomorrow's adult citizen. But the reality always differs
from philosophical expectations. And the reality is that
millions of children in our country do not get their parental
love and affection. They are ill-treated by the society. They
are exploited - economically and socially. During the tender
age when they require care and education, they are found
working for earning either for their livelihood or for
providing economic assistance to their families. Instead of
toys and books in their hands, they are found absorbed
275
(reluctantly) in their respective exploitative employments.
Yes, tlneir employment Is exploitative; first, because instead
of understanding their basic human rights at such tender
age they are made to work like adults. Secondly the pay
given to them is very meager (sometimes not even half of
pay given to adult workers). Thirdly, defying all the norms
in this behalf, they are employed in hazardous
employments. The worst part is that they are not only
made to work but literally the work is extracted from them
disregarding their physical limitations. Child labourers are
children shackled In chains of servitude and the bond is so
strong that they cannot break, even if they want to - child
labour is a blot of our polity and society and it cannot be
justified with any justification.^
More threatening Is the fact that in the year 1995 a report,

by the government-appointed Commission on Labour
Standards and International Trade noted a tendency of
significant increase In the number of child labour. As per
the report of the Commission, child labour has been
increasing in India at the rate of 4 percent a year, "while
the working conditions of the children have remained
unchanged, if not deteriorated,"
^ "The Problems of Child Labour in India : Analysis and Solution" By Dr. Dulalendu Chatteijee,
referred in Law and Child - Part - 1 , Edited by Dr. N. K. Chakrabarti
276
6-2 Children under Bonded Labour
Bonded labor is another worst form of forced labour. It
often springs out of poverty and some other social evils. In
remote areas of India, the poor village people live in a very
miserable state of life. They don't have money or source to
earn money even to get two times meal. They do not have
even slightest idea of modern metropolitan life. While living
under poverty line, sometimes they need monetary help for
marriage or major medical treatment. Some unscrupulous
and shrewd employers exploit this vulnerability of the poor.
Here a family receives an advance payment of few hundred
rupees. I n consideration thereof a child is handed over to
the creditor-employer. Child workers are required to work
with such creditor-employer in consideration of the advance
given to their families. In most cases the child cannot work
off the debt, nor can the family raise enough money to buy
the child back. They are paid extremely low wages violating
ail norms of Minimum Wages Laws. Further, from such
meager wages, the expenses and exorbitant interest on the
principal amount (i.e. advance already made) is deducted.
On account of such meager remuneration and deductions
therefrom. It becomes impossible for the child to pay off the
debt and poor child kept on working with such inhuman
creditor-employers for rest of its life. These child labourers
are humiliated, abused, insulted and very often beaten by
the employers. As they are bonded labourers, they are
277
treated as slaves. Even if a child is sick it is made to work.
The work is often unsuited to their tender age and it causes
permanent damage to the body and soul of the child. I t is
more shocking to observe that sometimes such labour is
generational. A child bonded worker is found working with
the employer who had advanced a few hundred rupees to
his forefathers. This all happens even though there are
several international documents and innumerous municipal
legislations prohibiting such practices.
6.3 Child Labour : International Scenario

It is said that "child is father of man". Violation of rights of
children is a global Issue, I t is not a problem pertaining to a
particular region or country. Therefore, for last many
decades a strong move has been initiated at international
level to combat the problem of violation of rights of the
children. At the same time, recognizing the importance of
child and childhood, various organizations at international
level, have shown a keen concern for protection and
promotion of rights of children and welfare thereof. They
have come forward to form various strategies for the said
purpose from time to time. A plenty of international
conventions and other documents speak in the same terms.
Therefore, before examining the concern shown for children
at national level, it would be expedient to examine the
international concern for children.
278
International Labour Organisation (liereinafter referred to
as ILO for tlie sal<e of brevity and convenience) has played
a significant and pivotal role in elimination of child labour
and protection of children engaged in industrial
undertakings from being exploited. As a step in that
direction, as back as in 1919, ILO^ prescribed minimum age
of employment in any industrial undertakings to be 14
years. However, it carved out two exceptions to this general
age limit as under;
(i) if the concern is a family unit where only family

members work; and
(ii) if the work done is in an approved technical school
to impart technical education to a child.
Thus, except in abovementioned two cases the general age

limit below which no child could be engaged in any
industrial undertaking was 14 years. Further, ILO^ put
prohibition on employing a child below the age of 18 years
during night shifts. I t is pertinent to note here that till not
ILO has legislated upon 18 Conventions and has adopted
the 16 recommendations in the interest of child labourers
all over the world. The programmes of ILO focus five main
' Convention 5, The International Labour Organization, 1919

^ Convention 6, ibid
279
issues, viz. (i) prohibition of child labour (ii) protecting child
labour at work (iii) attacking the basis causes of child
labour (iv) helping children to adopt to future wok and (v)
protecting the children of working parents.
Thereafter, in the year 1926, the Assembly of League of

Nations adopted a Declaration on the Rights of Children,
which subsequently came to be popularly known as Geneva
Declaration. The said declaration stated that, "mankind
owes to the child the best that it has to give". However, the
declaration could not be given effect to as the league itself
died. Subsequently, in the year 1948, General Assembly of
United Nations Organisation adopted and proclaimed
Universal Declaration of Human Rights. The preamble to
said declaration stated that, "the peoples of the United
Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the
human person and in the equal rights of men and women
and have determined to promote social progress and better
standards of life in larger freedom". It further states that,
"Member States have pledged themselves to achieve, in
cooperation with the United Nations, the promotion of
universal respect for and observance of human rights and
fundamental freedoms". Article 4 of the Declaration states
that, "No one shall be held in slavery or servitude; slavery
and the slave trade shall be prohibited in all their forms."
280
The said declaration also specifically mentioned that
childhood is entitled to special care and assistance. All
children whether born in or out of wedlock, shall enjoy the
same social protection.^
Thereafter another charter specifically dealing with the

rights of the child was adopted unanimously by UN
General Assembly on 20*^ November, 1959, which was
l<nown as Declaration on the Rights of the Child. It
contained 10 Articles incorporating 10 basic rights as
follows ;
1. Right against discrimination in the enjoyment of

rights prescribed in the Declaration,
2. Right to facilities and opportunities for

development, physically, mentally, morally,
spiritually and socially,
3. Right to a name and nationality by birth,
4. Right to social security for protective care and

basic needs,
5. Right to special treatment and education for

physically and mentally retarded children.
Article 25(2) of Universal Declaration of Human Rights, 1948

281
6. Right to full and harmonious treatment and
development in loving care of responsive
parents,
7. Right to free and compulsory primary education

in furtherance of general culture and ability to
become a responsive citizen of tomorrow,
8. Right to protection and relief,
9. Right to protection against neglect, cruelty and

exploitation and
10. Right to protection against racial, religious and

other form of discrimination.
As the concern for child care grew more and more at

international level, the General Assembly of United
Nations^ constituted and established the United Nations
International Children's Emergency Fund (UNICEF). The
said Fund was to be utilized for the benefit of children
and adolescents of countries that had been the victims of
aggression; its assistance was to be provided on the
basis of need, without discrimination because of race,-
creed, national status or political belief. UNICEF plays a
pivotal role by helping Governments of developing
countries to improve the quality of life of their children.
It Is pertinent to note here that UNICEF is assisting
^ vide Resolution No. 57(1) of 11"^ December, 1946
282
programmes for children in more than 100 countries
covering approximately 960 million children.^ It goes to
the credit of UNICEF that apart from doing a significant
work In the area of health, food and nutrition of children,
it has also played a noteworthy role in elimination of
child labour. It buys about $400 million in supplies from
industrialized and developing countries each year. It has
adopted a policy that it would not procure supplies from
the companies that do not comply with the conditions
relating to elimination of child labour as stated by
Convention on the Rights of Child. By virtue of this policy
it entered into an understating with Bangladesh Garment
Manufacturers and Exporters Association (BGMEA), ILO
and Government of Bangladesh to abolish the
employment of children under 15 years of age in
garment factories. The working children were to be laid
off from the respective companies and were to be
admitted in the schools jointly funded by UNICEF and
BGMEA. To help the parents of the children laid off as
such to mitigate the financial loss suffered by them,
stipends up to 300 taka ($ 7.50) per month are to be
given to the children from the funds of BGMEA and ILO.
Since the stipend is too less than actual earnings of the
children, it has further been agreed to give employment
to qualified adults from the families whose children are
^ United Nations, United Nations Action in the Field of Human Rights, 1983 p. 207
283
laid off. It is well known fact that in India large number
of child labour is to be found in carpet and some other
industries. Therefore, UNICEF as a step towards
achievement of its noble goal of eradication of child
labour, has participated In promotion of 'Rugmark'
programme. The hand-woven rugs exported with
Rugmark certify that children were not involved in its
manufacturing. I t may not be out of place to mention
here that more than 100 carpet manufacturers have
applied to use the Rugmark lable on their products.^ This
may prove to be a significant step towards elimination of
child labour in Indian carpet industry. If such initiatives
continue on large scale, the day is not far away when we
would be able to eradicate this evil of child labour from
our society.
Further, the General Assembly proclaimed a Declaration

on the promotion among Young of the ideals of Peace
with the following six principles;
(i) young people shall be brought up in the spirit of

peace, freedom, mutual respect and
understanding;
' Singh Dolly, Xhild Rights And Social Wrongs - 1'^ Ed. 2001; Kanishka Publishers Child Rights
284
(ii) all forms of education fostering peace, humanity,
international solidarity, liberty;
(iii) young people shall be shall be brought up in the

knowledge of dignity and against all sort of
discrimination;
(iv) promotion of exchanges, travel, meetings> study

of foreign languages, twining of institutions etc.;
(v) encouraging establishments of national and

international associations of young persons, and
(vi) promotion of higher moral qualities for furthering

peace, dignity, equality and liberty^.
21^* December, 1976, was a Red-latter day as on this

day the General Assembly of United Nations passed a
Resolution declaring 1979 as International Year of the
Child (lYC). This was to create a general awareness
among the people as to the rights and needs of the
children in the fields of health, nutrition, education and
recreation.
On 16^" May, 1974 the General Assembly of UNO

proclaimed the Declaration on the protection of women
and children in emergency and armed, conflict. The
Declaration prohibits all forms of repression and cruel
^ Resolution No. 2037(XX), on 7*^ December, 1965
285
and inhuman treatnnent of women and children as well as
torture and degrading treatrr\ent.^
However, the most important document on protection and

promotion of rights of the children was UN's Convention on
the Rights of the Child, 1989. By the year 1996, almost all
countries ratified the said Convention making It most widely
ratified treaty in the human right history. The Convention
contained many basic and fundamental principles relating to
human rights of children. It has come out to be a document
which has produced a substantial change in the attitude of
State Parties towards their child citizens. Though the
Convention recognized that all governments may not have
sufficient resources to give immediate effect to its
provisions, still it has, in a way, imposed a duty on the
State parties to keep the principles laid down in the
Convention on their priority list. Preamble to the said
Convention states that "the child, for the full and
harmonious development of his or her personality, should
grow up in a family environment, in the atmosphere of
happiness, love and understanding." This Convention was
adopted, bearing in mind that the need to extend particular
care to the child has been stated In the Geneva Declaration
of the Rights of the Child of 1924 and in the Declaration of
' Mitra, N.L. "Law's Concern on Children", a seminar paper on the Rights of the Child, N.L.S.I.U.
Bangalore, 7-8 Sep. 1990
286
the Rights of the Child adopted by the General Assembly on
20 November 1959 and recognized in the Universal
Declaration of Human Rights, in the International Covenant
on Civil and Political Rights (in particular in Articles 23 and
24), in the International Covenant on Economic, Social and
Cultural Rights (in particular in Article 10) and in the
statutes and relevant instruments of specialized agencies
and international organizations concerned with the welfare
of children.^ It was emphasized In the Convention that the
child, by reason of his physical and mental Immaturity,
needs special safeguards and care, including appropriate
legal protection, before as well as after birth.
The Convention recognized that, in all countries in the

world, there are children living in exceptionally difficult
conditions, and that such children need special
consideration. The Convention also took into account the
importance of the traditions and cultural values of each
people for the protection and harmonious development of
the child.
For the purposes of the Convention, a child means every

human being below the age of eighteen years unless under
the law applicable to the child, majority is attained earlier.^
^ Preamble to Convention on the Rights of the Child, 1989

^ Article 1 of Convention on the Rights of the Child, 1989
287
Besides other important provisions, the convention made
some specific provisions for prevention of exploitation of
working children as under.
• States Parties recognize the right of the child to be

protected from economic exploitation and from
performing any work that is likely to be hazardous or
to Interfere with the child's education, or to be
harmful to the child's health or physical, mental,
spiritual, moral or social development^.
• States Parties shall take legislative, administrative,

social and educational measures to ensure the
implementation of the present article. To this end, and
having regard to the relevant provisions of other
international instruments. States Parties shall in
particular:
(a) Provide for a minimum age or minimum ages for
admission to employment^
(b) Provide for appropriate regulation of the hours
and conditions of employment;
' Article 32(1) ibid
288
(c) Provide for appropriate penalties or other
sanctions to ensure the effective enforcement of
the present article.^
• States Parties recognize the right of the child to rest

and leisure, to engage in play and recreational
activities appropriate to the age of the child and to
participate freely in cultural life and the arts^.
• States Parties shall respect and promote the right of

the child to participate fully in cultural and artistic life
and shall encourage the provision of appropriate and
equal opportunities for cultural, artistic, recreational
and leisure activity^.
For the purpose of examining the progress made by States

Parties in achieving the realization of the obligations
undertaken in the said Convention, it requires the States
parties to a Committee on the Rights of the Child, which
shall carry out the functions mentioned in the Convention
elaborately.
It further provides that the States Parties undertake to

submit to the Committee, through the Secretary-General of
^ Article 32(2) Convention on the Rights of the Child, 1989

289
the United Nations, reports on the measures they have
adopted which give effect to the rights recognized herein
and on the progress made on the enjoyment of those
rights:
(a) Within two years of the entry into force of the
Convention for the State Party concerned;
(b) Thereafter every five years.
Reports shall indicate factors and difficulties, if any,

affecting the degree of fulfillment of the obligations under
the Convention. Reports shall also contain sufficient
information to provide the Committee with a comprehensive
understanding of the implementation of the Convention in
the country concerned.
A State Party which has submitted a comprehensive initial

report to the Committee need not, in its subsequent reports
submitted in accordance with paragraph 1 (b) of the article,
repeat basic information previously provided.
The Committee may request from States Parties further

Information relevant to the implementation of the
Convention.
290
The Committee shall submit to the Genera! Assembly,
through the Economic and Social Council, every two years,
reports on its activities.
States Parties shall make their reports widely available to

the public in their own countries.
To ensure further the effective implementation of the

Convention additional provisions have been made as under-
Articie 4 5 of the Convention provides t h a t :
In order to foster the effective implementation of the

Convention and to encourage international co-operation in
the field covered by the Convention:
(a) The specialized agencies, the United Nations
Children's Fund, and other United Nations organs shall
be entitled to be represented at the consideration of
the implementation of such provisions of the present
Convention as fall within the scope of their mandate.
The Committee may invite the specialized agencies,
the United Nations Children's Fund and other
competent bodies as it may consider appropriate to
provide expert advice on the implementation of the
Convention in areas falling within the scope of their
respective mandates. The Committee may invite the
specialized agencies, the United Nations Children's
Fund, and other United Nations organs to submit
291
reports on the implementation of the Convention in
areas falling within the scope of their activities;
(b) The Committee shall transmit, as it may consider
appropriate, to the specialized agencies, the United
Nations Children's Fund and other competent bodies,
any reports from States Parties that contain a request,
or indicate a need, for technical advice or assistance,
along with the Committee's observations and
suggestions, if any, on these requests or indications;
(c) The Committee may recommend to the General
Assembly to request the Secretary-General to
undertake on its behalf studies on specific issues
relating to the rights of the child;
(d) The Committee may make suggestions and general
recommendations based on information received
pursuant to Articles 44 and 45 of the present
Convention. Such suggestions and general
recommendations shall be transmitted to any State
Party concerned and reported to the General
Assembly, together with comments, if any, from
States Parties.
India has also accepted the Convention on Rights of the

Child, 1989. Instrument of accession to the said Convention
was deposited on 11*" December, 1992 with UN's
292
Secretary-General. The extract of the declaration^ has been
produced herein for our ready reference :
"While fully subscribing to the objectives and purposes of

the Convention, realising that certain of the rights of the
child, namely, those pertaining to the economic, social and
cultural rights can only be progressively implemented in the
developing countries, subject to the extent of available
resources and within the framework of international co-
operation; recognizing that the child has to be protected
from exploitation of all forms including economic
exploitation; noting that for several reasons children of
different age do work in India having prescribed minimum
ages for employment in hazardous occupations and in
certain other areas; having made regulatory provisions
regarding hours and conditions of employment; and being
aware that it is not practical immediately to prescribe
minimum ages for admission to each and every are of
employment In India. The Government of India undertakes
to the measures to progressively implement the provisions
of Article 32, particularly paragraph 2(a), in accordance
with its national legislation and relevant international
instruments to which it is a State Party,"
' cited by Choudhary R. N., Law Relating to Juvenile Justice In India, 2005
293
Thus, India has ratified the international Conventions and
other documents which are specifically nrêant for protection
and promotion of interests of children. In the preceding
paragraphs, we have elaborately discussed the various
provisions incorporated in various international documents
relating to child labour or say to protect the children from
economic exploitation. Now, it would be pertinent to note
here the various provisions made for prevention and
elimination of child labour and protection of children from
economic exploitation as incorporated in Indian Constitution
as well as municipal laws i.e. Indian laws.
6-4 Child Labour : Domestic Scenario
6 . 4 . 1 The Indian Constitution
India is a Welfare State. The ' S t a t e ' is defined to be an

independent political entity, having control over a defined
territory. India emerged on the world-map as an
independent political entity on 14*^^ August, 1947.
The Constitution declared India to be a SOVEREIGN

SOCIALIST SECULAR DEMOCRATIC REPUBLIC. The Indian
Constitution of one of the lengthiest constitutions of the
world. It makes detailed provisions in respect of all matters
relating to governance of the country. The preamble of our
Constitution sets out various noble alms and objects to be
294
achieved by the nation. The objectives stated in preamble
are construed to be the basic structure of our Constitution.
It aims at securing to all its citizens :-
JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of the individual and the
unity and integrity of the Nation.
The Indian Constitution has guaranteed to its citizens all

fundamental human rights that are essential for overall
development of a human personality. The Constitution
guarantees certain Fundamental Rights under Part I I I ,
which are enforceable in the courts of law. The violation of
such rights can be redressed by directly moving Supreme
Court under Article 32. Part IV contains certain basic
principles, which, though not justiciable, are still considered
to be fundamental in the governance of the country. Many
of the provisions contained in Part IV have now been read
as fundamental rights by broader interpretation of Article
21 by Judiciary.
The miserable plight of children engaged in various

employments needs to be cured with like legislations. It has
295
been correctly said that like disease like the medicine. Since
the problem of Child Labour is fundamental, the remedy
has also to be incorporated in the Fundamental Law of the
nation. Our Constitution framers were very well aware of
this predicament. They have shown great foresight in
making various Constitutional provisions. Therefore, a
' paediatric conscience' is reflected in some of our
Constitutional provisions.
The Indian Constitution has envisaged the Welfare State

policy and accords justice and equal rights to all citizens.
Our Constitution aims at securing the dignity of the citizens
in various ways. Not only because the children form a large
portion of our population but also that they are future of
this nation, their welfare has been a first priority of the
nation. Keeping in view this noble objective, Indian
Constitution has made several provisions for the protection
and promotion of welfare of the children. It may not be out
of place to mention here that all Fundamental Rights
guaranteed under Part I I I of Constitution are available to a
child. Besides this, several provisions are to be found in
Part I I I and IV of Constitution which are specifically directed
towards attainment of welfare of children. FOr Instance,
Articles 15(3), 21A, 23 and 24 in Part I I I ; and Articles
39(e), 39(f), 4 1 and 45 in Part IV of our Constitution make
296
specific constitutional provisions in respect of welfare and
protection and promotion of interests of the children.
Since the Constitution is regarded as grundnornn i.e. it Is a

basic and fundamental law from which the validity of all
other legislation flows, it is absolutely essential to examine
the position of a child under Constitution of India. The same
has been done hereunder by reading, interpreting and
analyzing various constitutional provisions In light of
landmark judgements pronounced by the Hon'ble Supreme
Court and various High Courts.
India has unequivocally expressed its commitment towards

the cause of children vide various specific Constitutional
provisions. Following are some of the specific provisions in
Indian Constitution that have been directed towards
protection and welfare of children.
The protections extended under Part I I I , Fundamental

Rights, which are generally applicable to all, irrespective of
age, apply to a child also. The principle of equality states
"The state shall not deny to any person equality before the
law or the equal protection of the law within the territory of
India."^ The particular application of this general principle of
^ Article 14, Indian Constitution
297
equality is to be found under Articles 15 to 18 of the
Constitution.
Article 15 prohibits discrimination on the grounds of

religion, race, caste, sex or place or birth. It is in the
admonition against the State and states that the State shall
not discriminate against any person on any of these
grounds. Similarly, Article 15(2) applies as against
individuals also. However, Article 15(3) carves out an
exception to the rule contained in Article 15(1) and (2) and
declares that "Nothing in this article shall prevent the State
from making any specific provision for women and
children." To give effect to Article 15(3) several provisions
have been incorporated in labour legislations protecting the
interest of the children. Thus it allows any reasonable
discrimination by the State in favour of women and
children.
By Constitution (Eighty-sixth Amendment) Act, 2002, a new

article was added after Art.21 In the form of Art. 21A. It
provides that;
The State shall provide free and compulsory education
to all children of the age of six to fourteen years in
such manner as the State may, by law, determine.
298
Prohibition of traffic in human beings and force
labour :
(1) Traffic in human beings and beggar and other
similar forms of forced labour are prohibited and
any contravention of this provision shall be an
offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State

from imposing compulsory service for public
purposes, and in imposing such service the State
shall not make any discrimination on ground only
of religion, race, caste or class or any of them^.
Prohibition of employment of children in factories,

etc. : No child below the age of fourteen years shall be
employed to work in any factory or mine or engaged in any
other hazardous employment^.
Certain Principles of policy to be followed by the

State : The State shall in particular, direct its policy
towards securing -
e. that the health and strength of workers, men and
women, and the tender age of children are not abused
^ Article 23 of Indian Constitution

^ Article 24 ibid
299
and that citizens are not forced by economic necessity
to enter avocations unsuited to their age or strength;
f. that children are given opportunities and facilities to
develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are
protected against exploitation and against moral and
material abandonment^.
Provision for early childhood care and education to

children below the age of six years : The State shall
endeavour to provide early childhood care and education for
all children until they complete the age of six years. 2
Fundamental duties : It shall be the duty of every citizen

of India -
k. who is a parent or guardian to provide opportunities
for education of his child or, as the case may be, ward
between the age of six and fourteen years.^
Among the aforementioned provisions Articles 14, 15, 21-A,

23 and 24 are Fundamental Rights which have been there
since the very beginning of our Constitution. Others are
Directive Principles of State Policy and / or Fundamental
' Article 39 ibid

^ Article 45 Subs. By the Constitution (Eighty-sixty Amendment) Act, 2002
^ Article 51A of Indian Constitution. Clause (k) has been inserted vide Constitution (Eighty-sixty
Amendment) Act, 2002
300
Duties of the citizens. Thus, we can see that Indian
Constitution has made nnany important provisions for
protection of children's rights and for the betterment and
welfare of children. Indian Judiciary has also pronounced its
decisions in the same spirit while interpreting the different
provisions relating to children in our Constitution and other
legislations. At the same time, legislature has also made
elaborate provisions pertaining to children in different
legislations, on the basis of Constitutional provisions. To
give effect to Constitutional mandate, legislature has
passed many specific enactments which deal with rights of
children only. After examining the provisions relating to
child in Indian Constitution, it would be profitable to note
some important provisions in different specific legislations
relating to elimination of child labour In India.
6,4.2 Child Labour : Legislative Framework
To give effect to the Constitutional commitment as reflected

in abovementioned provisions, as on today there are
following provisions on statute books specifically directed
towards prohibition of child labour. These provisions
primarily deal with prescribing minimum age for
employment of children and some of the provisions are for
regulating the working conditions of minors. It can be seen
that there is no uniformity as to ' w h o is child/minor?' in
301
Indian labour laws. Different legislations provide for
different age limit. This is perhaps due to reason that these
enactnnents deal with different industries and the nature of
work varies from industry to industry.
1) Factories Act, 1948
Prohibition of employment of youngciiildren - No child

who has not connpleted his fourteenth year shall be required
or allowed to work in any factory^.
Non-aduit worlcers to carry tolcens. -A child who has

completed his fourteenth year or an adolescent shall not be
required or allowed to work In any factory unless-
(a) A certificate of fitness granted with reference to
him under Sec. 69 is in the custody of the
manager of the factory, and
(b) Such child or adolescent carries while he is at

work a token giving a reference to such
certificate^.
^ Section 67 of Factories Act, 1948

302
Effect of certificate of fitness granted to adolescent. -
(1) An adolescent who has been granted a certificate
of fitness to work in a factory as an adult under
CI. (b) of sub-section (2) of Sec. 69, and who
while at work in a factory carries a token giving
reference to the certificate, shall be deemed to
be an adult for all the purposes of Chapters VI
and V I I I .
(1-A) No female adolescent or a male adolescent who

has not attained the age of seventeen years but
who has been granted a certificate of fitness to
work in a factory as an aduit, shall be required
or allowed to work in any factory except between
6 a.m. and 7 p.m.:
Provided that the State Government may, by

notification in the official Gazette, in respect of
any factory or group or class or description of
factories, -
(1) Vary the limits laid down in the sub-section

so, however, that no such section shall
authorise the employment of any female
adolescent between 10 p.m. and 5 a.m.;
303
(ii) Grant exemption from the provisions of this
sub-section in case of serious emergency
where national interest is involved.]
(2) An adolescent who has not been granted a

certificate of fitness to work In a factory as an
adult under the aforesaid CI. (b) shall
notwithstanding his age, be deemed to be a child
for all the purposes of this Act^.
Working hours for children. -

(i) No child shall be employed or permitted to work,
in any factory
(a) For more than four and a half hours in any
day;
(b) During the night.
Expianation-For the purpose of this sub-section

"night" shall mean a period of at least twelve
consecutive hours, which shall include the interval
between 10 p.m. and 6 a.m.].
(2) The period of work of all children employed in a

factory shall be limited to two shifts which shall
not overlap or spread over more than five hours
304
each and each child shall be employed In only
one of the relays which shall not, except with the
previous permission in writing of Chief Inspector
be changed more frequently than once in period
of thirty days.
(3) The provisions of Sec. 52 shall apply also to child

workers and no exemption from the provisions of
that section may be granted in respect of any
child.
(4) No child shall be required or allowed to work in

any factory on any day on been working in
another factory.
(5) No female child shall be required or allowed to
work in any factory except between 8 a.m. and 7
p.m^
Notice of periods of woric for ciiiidren. -

(1) There shall be displayed and correctly
maintained In every factory in which children are
employed, in accordance with the provisions of
sub-section (2) of Section 108 a notice of
periods of work for children, showing clearly for
' Section 71 of Factories Act, 1948

305
every day the periods during which children may
be required or allowed to work.
(2) The periods shown in the notice required by sub-

section (1) shall be fixed before hand in
accordance with the method laid down for adult
workers in Section 6 1 , and shall be such that
children working for those periods would not be
working in contravention of any of the provisions
of Section 7 1 .
(3) The provisions of sub-sections (8), (9) and (10)

of Section 61 shall apply also to the notice
required by sub-section (1) of this section^.
Register of child workers.-
(1) The manager of every factory in which children

are employed shall maintain a register of child
workers, to be available to the Inspector at ail
times as during working hours or when any work
is being carried on a factory, showing-
(a) The name of each child worker in the

factory;
306
(b) The nature of his work;
(c) The group, if any, in which he is included;
(d) Where his group worl<s on shifts, the relay
to which he is allotted, and
(e) The number of his certificate of fitness
granted under Section 69.
(1-A) No child worker shall be required or allowed to

work In any factory unless his name and other
particulars have been entered in the register of
child workers.
(2) The State Government may Prescribe the form of

the register of child workers, the manner in
which it shall be maintained and the period for
which it shall be preserved^.
Hours of work to correspond with notice under

Section 7 2 and register under Section 7 3 . -No child
shall be employed in any factory otherwise than in
accordance with the notice of periods of work for children
displayed in the factory and the entries made before hand
against his name in the register of child workers of the
factory^.

^ Section 74 ibid
307
Power to require medical examination. -
Where an Inspector is of opinion (a) That any person
working in a factory without a certificate of fitness is a
young person, or (b) That a young Person working in a
factory with a certificate of fitness Is no longer fit to work in
the capacity stated therein, the may serve on the manager
of the factory a notice requiring that such person or young
person, as the case may be, shall be examined by a
certifying surgeon, and such person, or young person shall
not, if the Inspector so directs be employed or permitted to
work, in any factory until he has been granted a certificate
of fitness or a fresh certificate of fitness the case may be,
under Section 69, or has been surgeon examining him not
to be a young Person^.
Power to maice rules. -The State Government may make

rules,-
(a) Prescribing the forms of certificates of fitness to

be granted under Section 69, providing for the
grant of duplicates in the event of loss of the
original certificates, and filing the fees which
may be charged for such certificates and
renewals thereof and such duplicates;
' Section 75 ibid
308
(b) Prescribing the Physical standards to be attained
by children and adolescents working in factories;
(c) Regulating the Procedure of certifying surgeons

under this chapter;
(d) Specifying other duties which certifying surgeons

may be required to perform in connection with
the employment of young persons In factories,
and filing the fees which may be charged for
such duties and the persons by whom they shall
be payable^
Certain other provisions of iaw-not barred.-The

Provisions of this Chapter shall be in addition to and not in
derogation of the provisions of Employment of Children Act,
1938 (XXVI of 1938)^.
2) Plantations Labour Act, 1 9 5 1

Night woric for w o m e n and children - Except with the
permission of the State Government, no woman or child
worker shall, be employed in any plantation otherwise than
between the hours of 6 a.m. and 7 p.m. Provided that

^ Section 77 ibid
309
nothing in this section shall be deemed to apply to
midwives and nurses employed as such in any plantation^.
Non-adult workers to carry tokens. -No child and no

adolescent shall be required or allowed to work In any
plantation unless (a) A certificate of fitness granted with the
reference to him under Section 27 is in the custody of the
employer; and (b) Such child or adolescent carries with him
while he is at work a token giving a reference to such
certificate^.
Certificate of fitness -
A certifying surgeon shall, on the application of any young
person or his parent or guardian accompanied by a
document signed by the employer or any, other person on
his behalf at such person will be employed in the plantation
if certified to be fit for work, or on the application of the
employer or any other person on his behalf with reference -
to any young person intending to work, "amine such person
and ascertain his fitness for work either as a child or as an
adolescent^. A certificate of fitness granted under this
section shall be valid for a period of twelve months from the
date thereof, but may be renewed"^. Any fee payable for a
' Section 25 of Plantations Labour Act, 1951

2 Section 26 ibid
^ Section 27(1) ibid
^ Section 27(2) of Plantations Labour Act, 1951
310
certificate under this section sliall be paid by the ennployer
and shall not be recoverable from the young person, his
parents or guardian^.
Power to require medical examination - An inspector

may if he thinks necessary so to do, cause any young
person employed in, a plantation to be examined by a
certifying surgeon^.
3) The Mines Act, 1 9 5 2 :

Employment of persons below eighteen year of age. - After
the Commencement of the Mines (Amendment) Act, 1983,
no person below eighteen, years of age shall be allowed to
work in any mine or part thereof^. Notwithstanding
anything contained in sub-section (1) apprentices and other
trainees, not below sixteen years of age, may be allowed to
work, under proper supervision, in a mine or part thereof
by the manager. Provided that in the case of trainees, other
than apprentices, prior approval of the Chief Inspector or an
Inspector shall be obtained before they are all' owed to
work. In this section and in Sec. 43 "apprentice" means an
apprentice as defined in CI. (a) of Section 2 of the
Apprentices Act, 1961 (52 of 1961)'^.

^ Section 27 ibid
^Section 40(1) of The Mines Act, 1952
311
Power to require medical examination. ~
Where an Inspector is of opinion tiiat an [person employed
in a mine otherwise than as an apprentice or other trainee
is not an adult or that an person employed in a mine as an
apprentice or other trainee Is either below sixteen years of
age is no longer fit to work, the Inspector may serve on the
manager of the mine a notice requiring that such person
shall be examined by a certifying surgeon and such person
shall not. If the Inspector so directs, be employed or
permitted to worl< in any mine until he has been so
examined and has been certified that he is an adult or, if
such person is an apprentice or trainee, that he is not below
sixteen years of age and is fit to work^. Every certificate
granted by a certifying, surgeon on a reference under
subsection (1) shall, for the purpose of this Act, be
conclusive evidence of the matters referred therein^.
Prohibition of the presence of persons below

eighteen years of age in a mine - Subject to the
provisions of sub-section (2) Section 40 after such as the
Central Government may, by notification in the official
Gazette, appoint in this behalf no person below -eighteen
years of age shall be allowed to be present In any part of a
' Section 43(1) of The Mines Act, 1952

312
mine above ground where any operation connected with or
incidental t o , any mining operation is being carried on^,
4) Merchant Shipping Act, 1 9 5 8 :

No person under fifteen years of age shall be engaged or
carried to sea to work in any capacity in any ship, except
(a) in a school ship, or training ship, in accordance with the
conditions; or (b) in ship in which all persons employed are
members of one family; or (c) in a home-trade ship of less
than two hundred tons gross; or (d) where such person is
to be employed on nominal wages and will be in the charge
of his father or other adult near male relatives^.
5) The Children (Pledging Of Labour) Act, 1 9 3 3 :

For the purpose of application of this act, "An agreement to
pledge the labour of a child" means in agreement, written
or oral, express or implied, whereby the parent or guardian
of a child, in return for any payment or benefit received or
to be received by him, undertakes to cause or allow the
services of the child to be utilized in any employment.
Provided that an agreement made without detriment to a
child, and not made in consideration of any benefit other
than reasonable wages to be paid for the child's services,
and terminable at not more than a week's notice, is not an
^ Section 45 ibid
^ Section 109 Merchant Shipping Act, 1958
313
agreement within tine meaning of tiiis definition. Further the
Act defines "child" as a person who is under the age of
fifteen years; and "Guardian" includes any person having
legal custody of or control over a child^.
Agreement contrary to the Act to be void - An

agreement to pledge the labour of a child shall be void^.
Penalty for parent or guardian making agreement t o

pledge the labour of a child - Whoever, being the parent
or guardian of a child, makes an agreement to pledge the
labour of that child, shall be punished with fine which may
extend to fifty rupees^.
Penalty for making with a parent or guardian

agreement to pledge t h e labour of a child - Whoever
makes vîth the parent or guard'ân of a child an agreement
whereby such parent or guardian pledges the labour of the
child shall be punished with fine which may extend to two
hundred rupees'*.
Penalty for employing a child whose labour has been

pledged - Whoever, knowing or having reason to believe
that an agreement has been made to pledge the labour of a
^ Section 2 ofThe Children (Pledging Of Labour) Act, 1933

^ Section 3 ibid
^ Section 4 of The Children (Pledging Of Labour) Act, 1933
* Section 5 ibid
314
child, in furtherance of such agreement employs such child,
or permits such child to be employed in any premises or
place under his control, shall be punishable with fine which
may extend to two hundred rupees^.
6) The Motor Transport Workers Act. 1 9 6 1 :

For the purpose of application of this Act, the term "Child
has been defined to mean a person who has not completed
his fifteenth year^.
Prohibition of employment of children. -No child shall

be required or allowed to work in any capacity in any motor
transport under-taking^.
Adolescents employed as motor transport workers to

carry tokens. -No adolescent shall be required or allowed
to work as a motor transport worker in any motor transport
under-taking unless- (a) A certificate of fitness granted
with reference to him under Section 23 Is in the custody of
the employer; and (b) Such adolescent carries with him
while he is at work a token giving a reference to such
certificate"*.
^ Section 6 ibid
^ Section 2(c) of The Motor Transport Workers Act, 1961
^ Section 21 of The Motor Transport Workers Act, 1961
"* Section 22 ibid
315
Certificate of fitness. - A certifying surgeon shall, on the
application of any adolescent or his parent or guardian
accompanied by a document signed by the employer or any
other person on his behalf that such person will be
employed as a motor transport worker in a motor transport
undertaking if certified to be fit for that work, or on the
application of such employer or any other person on his
behalf with reference to any adolescent intending to work,
examine such person and ascertain his fitness for work as a
motor transport worker. A certificate of fitness granted
under this section shall be valid for a period of twelve
months from the date thereof, but may be renewed. Any
fee payable for a certificate under this section shall be paid
by the employer and shall not be recoverable from the
adolescent, his parent or guardian^.
Power to require medical examination. -Where an

Inspector is of opinion that a motor transport worker
working m av\y motor transport undertaking without a
certificate of fitness is an adolescent the Inspector relay
may serve on the employer a notice requiring that such
adolescent motor transport worker shall be examined by a
certifying surgeon and such adolescent motor transport
worker shall not. If the Inspector so directs, be employed or
permitted to work In any motor transport undertaking until
Section 23 ibid
316
he has been so examined and has been granted a
certificate of fitness under Section 2 3 ^
7) The Apprentices Act, 1 9 6 1 :
Qualification for being engaged as an apprentice. -A

person shall not be qualified for being engaged as an
apprentice to undergo apprenticeship training in any
designated trade, unless he (a) Is not less than fourteen
years of age; and (b) Satisfies such standards or education
and physical fitness as may be prescribed. Provided that
different standards may be prescribed in relation to
apprenticeship training in, different designated trades and
for different categories of apprentices^.
8) The Beedi And Ciaar Worlcers fConditions Of

Employment'^ Act. 1 9 6 6 :
Prohibition of employment of children - No child shall
be required or allowed to work in any industrial premises^.
Prohibition of employment of women or young

persons during certain hours - No woman or young
person shall be required or allowed to work in any industrial
premises except between 6 a.m. and 7 p.m"*.
' Section 24 of The Motor Transport Workers Act, 1961

^ Section 3 of The Apprentices Act, 1961
^ Section 24 of The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
* Section 25 of The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
317
9) Minimum Wages Act, 1 9 4 8 :
The appropriate Government shall fix or revise the wages
for different scheduled employments, different classes of
work in the same scheduled employment, adults,
adolescents, children and apprentices and for different
localities.^
1 0 ) Shops and Establishment Acts :

This area has been largely governed by State laws.
Different States have separate enactments in this field,
which provides for prohibition on employment of children;
the age limit varies from 12 to 14 years. These enactments
also provide for prohibition on employment of young
persons during night hours. Besides this, they also provide
for regulation of working conditions of the young persons
etc.
Thus, the provisions contained in the above stated labour

laws indicate the concern shown by legislature for
prohibition of child labour and protection of children's
economic exploitation. The above provisions are of labour
laws only. Besides these provisions, there are hundreds of
other legislations - civil as well as criminal that relate to the
protection of children's interests in one or other way.
* Section 3(3) of Minimum Wages Act, 1948
318
However, those provisions siiall be discussed (as far as
possible) at the relevant places in this study.
The above stated provisions are scattered finding place in

different labour laws. However, the most comprehensive
piece of legislation relating to prohibition of child labour is
Child Labour (Regulation & Prohibition) Act, 1986.
Therefore, it is pertinent to discuss the provisions of this Act
In detail.
1 1 ) Child Labour fRegulation & Prohibition! Act,

1986
The Employment of Children Act, 1938 was passed to
accorrimodate and implement the ILO Convention of 1937.
The salient features of that Act were that it prohibited
employment of children under 15 years in occupations
relating to transport of goods, passengers, mails on
railways besides providing for requirement of certificate of
age. The Act was further amended in 1978 to prohibit
employment of children below 15 years of age In
occupations in railway premises such as cinder-packing or
cleaning of ash pit, In catering establishment and in any
other work which Is carried on in close proximity to or
between the railway lines. Finally, the Child Labour
(Regulation & Prohibition) Act, 1986 came into force on 23''^
December, 1986, repealing Employment of Children Act,
319
1938. The said Act is to prohibit the engagement of children
in certain employments and to regulate the conditions of
work of children in certain other employhnents. The Act
contains Four Parts and Two Schedules. First Part deals with
preliminary provisions including definitions. Second Part
deals with "Prohibition of employment of children in certain
occupations and processes". Third Part of the Act deals with
regulation of child labour in establishments in which none of
the occupations or processes referred to in Section 3 of the
Act is carried on. Fourth Part contains miscellaneous
provisions and makes provisions for penalties, procedure
relating to offences, appointment of inspectors, power to
make rules, rules and notifications to be laid before
Parliament and State Legislature, repeal and savings etc.
This Act amended the definition of child as given in four
legislations viz. Minimum Wages Act, 1948, Plantation Act,
1951, Merchant Shipping Act, 1959 and Motor Transport
Workers Act, 1961.
There are a number of acts which prohibit the employment

of children below 14 years and 15 years in certain specified
employments. However, there is no procedure laid down in
any law for deciding in which employments, occupations or
processes the employment of children should be banned.
There is also no law to regulate the working conditions of
children in most of the employments where they are not
320
prohibited from working and are worl<ing under exploitative
conditions.^
The Act intends to -

(i) ban the employment of children. I.e., those who have
not completed their fourteenth year, in specified
occupations and processes;
(II) lay down a procedure to decide modifications to the
Schedule of banned occupations or processes;
(III) regulate the conditions of work of children In
employments where they are not prohibited from
working;
(iv) lay down enhanced penalties for employment of
children in violation of the provisions of this act, and
other acts which forbid the employment of children;
(v) to obtain uniformity in the definition of "child" in the
related laws.
Section 3 of the Act provides that -

"No child shall be employed or permitted to work in
any of the occupations set forth in Part A of the or in
any workshop wherein any of the processes set forth
in Part B of the Schedule is carried on;
' Statement of Objects and Reasons - Child Labour (Prohibition and Regulation) Act, 1986
321
Provided that nothing in this section shall apply to any
workshop wherein any process is carried on by the
occupier with the aid of his family or to any school
established by, or receiving assistance or recognition
from Government."
This provision raises an issue that whether hazardous

employment becomes safe or less hazardous when
workshop or process is carried on by the family or any
school establishment and run by receiving assistance or
recognition from Government. That means there is
statutory recognition of child labour; and this is contrary to
Constitutional mandate and various international
documents/covenants to which India is a State Party.
However, we cannot overlook some other important

provisions of the said Act, including the one which provides
for setting up of ^ Child Labour Technical Advisory
Committee'^.
The Act also provides that whoever employs any child or

permits any child to work in contravention of the provisions
of Section 3 shall be punishable with imprisonment for a
term which shall not be less than three months but which
may extend to one year or with fine which shall not be less
^ Section 5 of Child Labour (Prohibition and Regulation) Act, 1986
322
than ten thousand rupees but which may extend to twenty
thousand rupees or with b o t h \ For the repetition of the
same offence the punishment provided is imprisonment for
a term which shall not be less than six months but which
may extend to two years^.
There are two Schedules appended to this Act viz. Schedule

A and Schedule B. Schedule A contains a list of
' occupaUons' and Schedule B corvtains Ust of ' processes' in
which child labour is prohibited.
Schedule A lists outs the following 'occupations' :

(1) Transport of passengers, goods or mails by railway;
(2) Cinder picking, clearing of an ash pit or building
operation in the railway premises;
(3) Work in a catering establishment at a railway station,
involving the movement of a vendor or any other
employee of the establishment from one platform to
another or into or out of a moving train;
(4) Work relating to the construction of a railway station
or with any other work where such work is done in
close proximity or between the railway lines;
(5) A port authority within the limits of any port.
(6) Work relating to selling of crackers and fireworks.*
(7) Abattoirs/Slaughter houses.**
' Section 14(1) ibid

323
Schedule B lists out the follo>wing ' processes' :
(1) Beedi-making.
(2) Carpet-weaving.
(3) Cement manufacture, including bagging of cement.
(4) Cloth printing, dyeing and weaving.
(5) lânufacture of matches, explosives and fireworks.
(6) lîca-cutting and splitting.
(7) Shellac manufacture.
(8) Soap manufacture.
(9) Tanning.
(10) Wool-cleaning.
(11) Building and construction industry.
(12) Manufacture of slate pencils (including packing)*
(13) Manufacture of products from agate.*
(14) Manufacturing processes using toxic metals and
substances such as lead, mercury, manganese,
chromium, cadmium, benzene, pesticides and
asbestos.*
(15) "Hazardous processes" as defined In section 2(cb) and
/dangerous operations' as notified in rules made
under section 87 of the Factories Act, 1948 (63 of
1948).**
(16) Printing as defined in section 2(k) (iv) of the Factories
Act, 1948 (63 of 1 9 4 8 ) . * *
(17) Cashew and cashewnut desalting and processing.**
324
(18) Soldering processes in electronic industries.**
* Inserted by notification No. SO. 404 (E) dated 5th

June, 1989 published * in the Gazette of India,
Extraordinary.
**Inserted by notification No. SO.263 (E) dated 29th
March, 1994 published in Gazette of India,
Extraordinary.
6.5 Child Labour : Causes and Factors
Though child labour is prohibited and it has been made a

punishable offence, yet we find the large number of children
employed in various sectors. Some of the worl<s where
these little angles are found working are absolutely
unsuited to their age and physical & mental capacity. But
still they are working. They have no alternative. There Is no
way out. Sometimes they work till scars appear on their
soft palms. They are hurt. They (and their future) is ruined.
But they don't argue, they don't stop, they just work. But
what for? Yes, only and only for few rupees which they earn
at the end of the day. Legislature make the laws but its
implementation to fullest extent is sometimes found
impossible. One of such area where law has found itself in
helpless situation is Child Labour. This is the area where
there are more than 300 central and State legislations that
325
prohibit employment of children in various employments.
But all in vein. Our laws have miserably failed in eradicating
the evil of child labour. Therefore, we need to go to the root
cause of the matter and try to find out the reason cause of
the problem and search for Its permanent solution. The
study of the child labour shows that its main causes are -
1. Poverty and
2. Lack of education
India is a highly populous country. Actually manpower is an

asset, but when it are not properly utilized, it become
liability. The problem with our country is that it is a very
large country having population of more than 100 crores.
We are a developing country. Crores of people in our nation
live below poverty line. One of the reasons of poverty is
unemployment. We are facing an acute problem of
unemployment. This unemployment leads to many social
evils including theft, burglary, dacoity, prostitution and child
labour. When the people do not have two time meals they
cannot possibly think,of sending their children to schools.
On the other hand they encourage their children to join one
or other employment so that their children can fetch them
some money. In India, most of the child labourers heel
from very poor families. They are working to give financial
support to their families. Sometimes, when they don't find
326
any work they start begging on the roadsides. It is also
seen that in poor families their children are not at all
burden for them. This is because more the children more
will be the hands and consecutively more will be the family
income. When this is the plight of the poor in India,
sometimes it is feit that strict enforcement of laws relating
to Child Labour would worsen the situation.
Second Important reason of child labour is illiteracy or lack

of education. 8 0 % of the child labourers belong to Dalits
(including SC and STs). Some of these are people are
totally illiterate and most of them are not property
educated. Since they themselves are uneducated, they do
not understand the importance of education in human life.
Therefore, they prefer not to send their children to schools;
rather they make them join one or another employment.
This results in widespread illiteracy. I t is, therefore, very
important and necessary to educate parents and the
children. It is only education that can bring about some
change In the situation. If the parents are property
educated they would never prefer to make their children
work at the cost of education. Our Government Is also
aware of this situation and therefore It Is taking steps to
promote education. Article 45 (which is a part of Directive
Principles of State Policy) provides that primary education
should be compulsory. However, the free and compulsory
327
primary education for the children between the age group
of 6 to 14 has now been made a fundamental rights But
what about the children above 14 years? The question
remains un-replled. If proper education facility is made
available to children, we can at least expect to eliminate
this social evil of child labour in future era.

Needless to say that judicial interpretation plays a very vital
role In giving the maximum effect to the legal provisions. In
every welfare State the function of legislature is to make
laws for the welfare and betterment of the society.
However, ultimately it Is judiciary who has to interpret that
law made by legislature and to ensure that the provisions of
such laws are Interpreted in Its true latter and spirit. In
India, judiciary is often referred to as the custodian of the
fundamental rights of the people. However, this stands true
for other legal rights also. So far as the Constitutional rights
of the children are concerned, Indian courts have come out
with overwhelming response in the matter. While
understanding the real value of children, they have shown
deep concern for protection and promotion of interests of
the children. It is therefore worth noting some of the
important judicial pronouncements on the aforementioned
' Article 21A of Indian Constitution
328
Constitutional and statutory provisions relating to
prohibition / eyimmation of child labour.
In Vikram Deo Singh Tomar V. State of B i h a r \ while

pointing out the significance of Constitutional provisions
relating to women and children, Hon'ble Supreme Court
observed that, "India is a welfare State governed by a
Constitution which holds the pride of place in the hearts of
its citizens. It lays special emphasis on the protection and
well-being of Its weaker sections of society and seeks to
improve their economic and social status on the basis of
constitutional guarantees spelled out in its provisions. I t
shows a particular regard for women and children, and not
withstanding the pervasive ethos of the doctrine of equality
it contemplates special provisions being made for them by
law And so, in the discharge of its responsibilities to
the people, the State recognizes the need for maintaining
establishments for the care of those unfortunates, both
women and children, who are the castaways of an Imperfect
social order and for whom, therefore, of necessity,
provisions must be made for their protection and welfare.
Both common humanity and consideration of law and order
require the State to do so."
' AIR 1988 SC1782

329
Sheela Barse V. UOI^ was a case filed in the form of a
Public Interest Litigation. It related to the detention of
children in jails in various States. This case shall be
discussed in detail later on but here, it is pertinent to note a
vary important observation of court relating to child. The
Hon'ble Supreme Court in the present case observed, "If a
child Is a national asset it is the duty of the State to look
after the child with a view to ensuring full development of
its personality."
Showing deep concern for protection of children's rights,

Hon'ble Supreme Court, in the case of Supreme Court
Legal Aid Committee V- UOI^, observed that, "Children
require the protective umbrella of society for better growth
and development as they are not in a position to claim their
entitlement to attention, growing up, food, education and
the like. It is responsibility of the society and one of the
paramount obligations of those who are in charge of
governance of the country today to attend to the children to
make them appropriate citizens of tomorrow."
In case of People's Union for Democratic Rights V.

Union of India^, the Hon'ble Supreme Court held that
'construction work' is hazardous employment and therefore
1 AIR 1988 SC 2211

^ AIR 1989 SC 1273
^ AIR 1983 SC 1473
330
under Art. 24 no child below the age of 14 years can be
employed in the construction work even if construction
industry is not specified in the Schedule to the Employment
of Children Act, 1938. The Court further directed the State
Government to take immediate actions for including the
'construction work' in the Schedule to the Act and to
ensure that constitutional mandate as contained in Article
24 of the Constitution is not violated in any part of this
country.
Labourers Working on Salal Hydro-project V. State of

Jammu and Kashmir^ - In this case Hon'ble Supreme
Court dealt with the problem of child labour elaborately.
The Hon'ble Court discussed the ambit of Article 24 of
Indian Constitution in following words;
"We are aware that the problem of child labour Is a
difficult problem and it is purely on account of
economic reasons that parents often want their
children to be employed in order to be able to make
two ends meet. The possibility of augmenting their
meagre earnings through employment of children is
very often the reason why parent do not send their
children to schools and there are large drop-outs from
the schools. This Is an economic problem and it cannot
be solved mer-ely by legislation. So long as there Is
AIR 1984 SC 177
331
poverty and destitution in this country, it will be
difficult to eradicate ciiild labour. But even so an
attempt has to be made to reduce, if not eliminate the
incidence of child labour, because it is absolutely
essential that a child should be able to receive proper
education with a view to equipping itself to become a
useful member of the society and to play a
constructive role in the socio-economic development
of the country. We must concede that having regard
to the prevailing socio-economic conditions, it is not
possible to prohibit child laboui" altogether and in fact,
any such move may not be socially or economically
acceptable to the large masses of people. That is why
Art. 24 limits the prohibition against employment of
child labour only to factories, mines or other
hazardous employments and no child below the age of
14 years can therefore be allowed to be employed in
construction work by reason of the prohibition enacted
In Article 24 and this constitutional prohibition must
be enforced by the Central Government. The Central
Government would do well to persuade the workmen
to send their children to a nearby school and arrange
not only for the school fees to be paid but also provide
free of charge, books and other facilities such as
transportation. We would suggest that whenever the
Central Government undertakes a construction project
332
which is lilcely to last for some time, the Central
Government should provide that children of
construction workers who are living at or near the
project site should be given facrllties for schooling and
this may be done either by the Central Government
itself or if the Central Government entrusts the project
work to any part thereof to the contractor, necessary
provision to this effect may be made in the contract
with the contractor."
This judgement perhaps Is a big leap made by the judiciary

by showing deep concern for elimination of child labour. In
this judgement. Supreme Court has rightly observed t h a t
economic conditions of the poor in our country does not or
may not permit us to Impose blanket ban on child labour in
our country, and hence provision made in Art. 24 has
confined its scope to hazardous employments only. I t is
true that when a child is employed in hazardous
employment it is not only exposed to health hazards but its
overall development is also blocked. But doesn't It stand
true for children employed In un-organized sectors, or say
in the children employed in domestic work? When, for
example, a child Is employed even in domestic work, then
also It is deprived of education and other amenities which
otherwise it deserves. Doesn't it block its progress then? It
does. And therefore we need to see that gradually we
333
eliminate this problem of child labour from every section of
the society, be it organized sector or un-organized one.
Justice Bhagawati, while deciding a case of bonded labour

system^, observed that, ''It is not enough merely to identify
and release bonded labourers but it is equally, perhaps
more, important that after identification and release, they
must be rehabilitated, because without rehabilitation, they
would be driven by poverty, helplessness and despair into
serfdom once again. Poverty and destitution are almost
perennial features of Indian rural life for large numbers of
unfortunate ill-starred humans in this country and it would
be nothing short of cruelty and heartlessness to identify and
release bonded labourers merely to throw them at the
mercy of the existing social and economic system which
denies to them even the basic necessities of life such as
food, shelter and clothing. It is obvious that poverty is a
curse inflicted on large masses of people by our
malfunctioning socio-economic structure and it has the
disastrous effect of corroding the soul and sapping the
moral fibre of a human being by robbing him of all basic
human dignity and destroying in him the higher values and
the finer susceptibilities which go to make up this wonderful
creation of God upon earth namely, man. It does not mean
mere inability to buy the basic necessities of life but it goes
' Neeraja Chaudhary v. State of MP, AIR 1984 SC 1099

334
much deeper, it deprives a man of all opportunities of
education and advancement and increases a thousand fold
his vulnerability to misfortunes which come to him all too
often and which he is not able to withstand on account of
lack of social and material resources. We, who have not
experienced poverty and hunger, want and destitution, talk
platitudinously of freedom and liberty but these words have
no meaning for a person who has not even a square meal
per day, hardly piece of cloth to cover his shame. What use
are 'Identification' and 'release' to bonded labourers if
after attaining their so-called freedom from bondage to a
master they are consigned to a life of another bondage,
namely, bondage of hunger and starvation where they have
nothing to hope for - and they do not know whether they
will be able to secure even a morsel of food to fill the
hungry stomachs of their starving children. What would
they prize more : freedom and liberty with hunger and
destitution starring them in the face or some food to satisfy
their hunger and the hunger of their near and dear ones,
even at the cost of freedom and liberty. It is therefore,
imperative that neither the Government nor the court
should be content with merely securing Identification and
release of bonded labourers but every effort must be made
by them to see that the freed bonded labourers are
properly and suitably rehabilitated after identification and
release."
335
M. C. Mehta V. State of Tamil N a d u ^ was another case
in which existence of child labour was brought to the notice
of the Hon'ble Court. In the present case a petition was
fifed under Art. 32 of the Constitution by way of Pubfic
Interest Litigation connected with the problem of
employment of children in lâtch factories of Sivakasi in
Kamaraj District of Tamil Nadu State. The manufacturing
process of matches and fireworks is hazardous one. The
Hon'ble Supreme Court observed that, "working conditions
in the match factories are such that they involve health
hazards in normal course and apart from the special risk
involved in the process of manufacturing, the adverse effect
on health is a serious problem. Exposure of tender aged to
these hazards requires special attention". " employment
of children within the match factories directly connected
with the manufacturing process upto final production of
match sticks or fireworks should not at all be permitted."
The Court further observed that, "The spirit of the

Constitution perhaps is that children should not be
employed in factories as childhood is the formative period
and in terms of Article 45 they are meant to be subjected to
free and compulsory education until they complete the age
of 14 years. The provision of Article 45 in the Directive
AIR 1991 SC417
336
Principles of State Policy has still remained a far cry and
tliough according to this provision all children up to the age
of 14 years are supposed to be in school, economic
necessity forces grown up children to seek employment."
In the present case. Court permitted employment of

children In the process of packing, but with a condition that,
"packing should be done in an area away from the place of
manufacture to avoid exposure to accident."
The Hon'ble Supreme Court in the present case, issued /

made several important directions / recommendations as
under :-
1. Minimum wages for child labour should be fixed. In

consideration of their special adaptability at least
6 0 % of the prescribed minimum wage for an adult
employee in the factories doing the same job
should be given to them, (para 7)
2. I t is necessary that special facilities for providing
the quality of life of children should be provided.
This would require facility for education, scope for
recreation as also providing opportunity for
socialization. Facility for general education as also
job oriented education should be available and the
337
school time should be so adjusted that employment
Is not affected, (para 8)
3. (The Court directed) that the State of Tamil Nadu
shall take appropriate steps in the matter of
creating the welfare fund and finalizing the method
of contribution and collection thereof so that the
welfare fund (for children) may be set up by 1 ^
January 1991. The matching contribution by the
State can be put into the fund by the end of
fmav^da^ v^s^ 1990-1991 so that the consoUciat^d
money would be available for implementing welfare
scheme, (para 9)
4. Under the Factories Act there is a statutory
requirement for providing facilities for recreation
and medical attention. The State of Tamil Nadu is
directed to enforce these two aspects so that the
basic requirements are attended to Attention
may be given to ensure provision of a basic diet
during the working period and medical care with a
view to ensuring sound physical growth, (para 10)
5. Compulsory insurance scheme should be provided
for both adult and children employees taking into
consideration the hazardous nature of employment.
...... The premium for the group insurance policy
shall be the liability of the employer to meet as a
cond\t\on of service, (para 11)
338
6. There shall be a committee to oversee all directions
given by the court and it shall consist of the District
Judge of the area, the District Magistrate of
Kamaraj District, a public activist operating in the
area, a representative of the employees and local
labour officer.
Some time after the decision of the court in the above said
judgement, an accident took place at Sivakasi which
revived the case of M.C. Mehta decided and reported in
1991. The decision of the case came out in the year 1996
under the title M. C Mehta V. State of Tamil Nadu^. In
this matter, Hon'ble Supreme Court dealt with the problem
of child labour in detail and delivered the judgement by
dividing it under following heads :-
a. Magnitude of problem
b. Constitutional call
c. International commitment
d. Statutory provisions
e. Failure : causes and
f. What to do?
In the present case, Hon'ble supreme Court issued following

noteworthy directions to the concerned States :-
' AIR 1997 SC 699 also reported in 1996 (6) SCC 756
339
(1) A survey would be made of the aforesaid type of
child labour which would be completed within six
months from today.
(2) To start with, worl< could be taken up regarding
those employments which have been mentioned In
Article 24, which may be regarded as core sector to
determine which hazardous aspect of the
employment would be taken as criterion. The most
hazardous empôv^^rkt mav ^^^^ ^^^^^ ^^ prioritv, t o
be followed by comparatively less hazardous and so
on. It may be mentioned here that the National
Child Labour Policy as announced by the
Government of India has already identified some
industries for priority action and the industries
identified are as below :
a. The match industry in Sivakasi, TN

b. The diamond polishing industry, Surat, Guj.
c. The precious stone polishing industry in Jaipur,
Raj.
d. The glass industry in Firozabad, UP
e. The brass-ware industry in Moradabad, UP
f. The handmade carpet Industry in Mirzapur, UP
g. The lock-making industry in Aligarh, UP
h. The slate industry in Markapur, AP
\. The s\ate \nt\ustry m Mandasaur, MP
340
(3) The empioyment to be given as per our direction
could be dovetailed to other assured employment.
On this being done, it is apparent that our direction
would not require generation of* much additional
employment.
(4) The employment so given could as well be the
industry where the child is employed, a public
undertaking and would be manual in nature in as
much as the child In question must be engaged in
doing manual work. The undertaking chosen of
employment shall be one which is nearest to the
place of residence of the family.
(5) In those cases where alternative employment
would not be made available as aforesaid, the
parent/guardian of the child concerned would be
paid the income which would be.earned on the
corpus, which would be a sum of Rs. 25000 for
each child every month. The employment gfven or
payment made would cease to be operative if the
child would not be sent by the parent / guardian for
education.
(6) On discontinuation of the employment of the child,
his education would be assured in suitable
institution with a view to make him a better citizen.
It may be pointed out that Art. 45 mandates
compulsory education for all children until they
341
complete the age of 14 years; it is also required to
be free. I t would be the duty of the inspectors to
see that this call of the Constitution is carried out.
(7) A district could be the unit of collection so that the '
executive head of the district keeps a watchful eye
on the work of the Inspectors. Further, in view of
the magnitude of the task, a separate cell In the
Labour Department of the appropriate government
would be created. Monitoring of the scheme would
also be necessary and the Secretary of the
Department could perhaps do this work. Overall
monitoring by the Ministry of Labour, government
of India, would be beneficial and worthwhile.
(8) The Secretary tp the Ministry of Labour,

government of India would appraise this Court
within one year from today about the compliance of
aforesaid directions. If the petitioner would need
any further order in the light of the compliance
report. It would be open to him to do so.
(9) We should also like to observe that once the
directions given being carried out, penal provision
contained in the aforementioned 1986 Act would be
used where employment of child labour, prohibited
by the Act, would be found.
(10) In so far as the non-hazardous jobs are concerned,
the Inspector shall have to see that the working
342
hours of the child are not more than four to six
hours a day and he/ she receives education at ieast
for two hours each day. I t would also be seen that
the entire cost of education is borne by the
employer.
Thus/in the above mentioned case, Hon'ble Supreme Court

showed a great concern by making extensive guidelines to
given effect to the Constitutional mandate and to give
optimum effect to the other statutory provisions contained
in various statutes relating to prohibition of Child Labour.
Conclusion :
The Committee on Child Labour^, which was constituted to

examine the problem of child labour In India, submitted its
report in December, 1979. In its report It observed, "labour
becomes an absolute evil in the case of the child when he Is
required to work beyond his physical capacity, when hours
of employment interfere with his education, recreation and
rest, when his wages are not commensurate with the
quantum of work done, and when the occupation he is
engaged In endangers his health and safety I.e. when he Is
exploited."
Gurupadaswamy Committee on Child Labour
343
The child labour is sometimes considered to be a necessary
evil In India. Such statements are made with reference to
the population explosion and resultant unemployment,
poverty and lack of education. But does that mean we
should tolerate such evils? Labour or doing work in itself is
not wrong. But it becomes wrong when such labour or work
is taken by exploiting the economic position of the person
putting in that labour. Children do work even in so-called
advanced western countries too. In those countries also
there is craze of "earning with learning'. But the children
there do not work at the cost of education, health and
safety. In India (even in the south Asia) the situation Is
somewhat different.
The India has shown its concern for the welfare of the child
and Its commitment towards eradication of evil of child
labour. In the preceding paragraphs we discussed In detail
the International Concern, Constitutional Perspective,
Legislative Framework and Judicial Response. The above
detailed discussion made It dear that there has been a
wide-spread campaign against child labour. In India,
besides Constitutional provisions, a bulk of other specific
provisions in different enactments read with some specific
legislations have been directed towards this direction. The
NGOs and non-governmental agencies are doing their job.
Since the evil Is mingled up with socio-economic factors, it
344
would not be possible to get rid of it over-night by making
statutory provisions. It Is therefore noted here that we need
to patiently deal with the situation. Generating awareness
In the people with help in the matter. The ultimate solution
lies in eradicating poverty and unemployment of adults. The
parents who are living below poverty line cannot think of
children's welfare in this fashion. We, therefore, need to
help them come out of steel clutches of poverty. Taxation
policies and ulitization of revenue should be directed in such
a manner whereby poor people are benefited more.
Leaning from whatever has happened in past, we now

should wake up and join our hands for this social cause.
Playing with statistical data will not help much. Objective
efforts are the call of the day.
'Our task now is not to fix the blame for the past,
but fix t h e course for the f u t u r e . "
- John F. Kennedy
345
Chapter - 7
SEXUAL ABUSE OF CHILDREN AND
LEGAL IMPLICATIONS
7.1 Prelude
7.2 Incestuous Sexual Abuse
7.3 Consequences of Incestuous Sexual Abuse
7.4 Remedies
7.5 Child Trafficking and Prostitution
7.6 International Concern
7.7 Constitution of India
7.8 Legislative Response
7.9 The Immoral Traffic (Prevention) Act, 1956
7.11 Child-rape
7.12 Relevance of consent of child
7.13 Absence of injuries on male organ
7.14 No need of corroboration of victim's accusation
7.15 Reliability of evidence of medical professional
7.16 Child Sexual Abuse vis-a-vis Information Technology
346
Chapter - 7
SEXUAL ABUSE OF CHILDREN AND
LEGAL IMPLICATIONS
7-1 Prelude
Sex has always been a matter of controversy in every
human society. Still the fact remains that it occupies an
essential and integral part of human life. Sex has different
notions - religious, social and legal. Some of the religious
sects look down upon sex and preach brahmacharya. Some
call it as a religious obligation that a man must perform to
secure linage. Some call it only a mode of procreation of
children. Whereas, for some it is a matter of innate
pleasure. Law has no specific theory of sex in India. It takes
it on case to case basis. Law recognizes sex between legally
wedded couple as a legal and authorized act. It forbids, in
India, extra-marital sexual acts. I n India homosexuality and
lesbian relationships are prohibited and are offences under
Indian Penal Code. But sexual pleasure, in case of legally
wedded husband and wife, can be claimed as a matter of
right.
As per medical science sex is an important and essential

activity for human beings. It is a natural desire and
necessary physical activity for living creatures including
347
human beings. Basically sex is not an evil in itseif. It is
necessary for procreation, mental satisfaction as also
physical fitness. Gratification of sexual desires through
suitable modes prevents perversion of human minds. No
specific training is required for gratification of sexual
desires. It grows with age and growth of human body.
But the sexuality has many facets. Though sexual desire is

normal for all human beings, still very often it gives rise to
complicated social and legal issues. One of which is sexual
abuse of the children.
ChUd Sexual Abuse (hereinafter referred to as CSA) \s an

international phenomena and it Is not restricted to one
region, country or continent only. Further It takes many
forms ~ some are mild and some are more aggravated.
Facts and figures of CSA are stunning. Though Indian laws
may not have sufficient provisions to cover all sexual
abuses of the children still courts have shown remarkable
concern for the issue. There has been a chain of judicial
pronouncements in which courts have taken vary serious
note of CSA. It is heartening to note t h a t the courts have
shown willingness to keep aside all technicalities in legal
proceedings and have given due weightage to the
complaints regarding CSA. Still it appears that in India, the
348
law relating to CSA is not fully developed. There needs to
be nnore social sensitization of this issue.
In the present study, an attempt has been made to analyse

the causes and consequences of CSA and t o recommend
some suitable measures to curb the social stigma caused by
the brain storming consequences of CSA.
Since the CSA takes many forms the study has been
divided into various heads to cover all possible forms of
CSA.
7.2 Incestuous Sexual Abuse

The term 'incest' means sexual intercourse within near
Icindred^ Prof. N. V. Paranjape^ describes it as sexual
relation or intercourse between persons so related by
kindred affinity that legal marriage cannot take place
between them. In many countries there are specific laws
dealing with this situation. For instance in England Incest
Act, 1908 and in Scotland Incest Act, 1887 renders
incestuous behaviour an offence punishable by law. In.
India, however, there is no such corresponding specific
legislation. Incest is prohibited in Hindu Law. However, it is
without legal sanction. Even Indian Penal Code does not
' Gala's Universal Combined Dictionary

^ Criminology & Penology - by Prof. N V Paranjape, 12* Ed. 2000
349
have any provision whicii provide incest to be an offence.
Therefore, in India, incest Is not per se a crinne. However, it
can come under the provisions of IPC only if it amounts to
'child rape' when an intercourse takes place with a girl
below the age of 16 or 'adultery' when the willing female
partner to incestuous sexual intercourse is married to some
one^.
One horrific instance of incestuous sexual abuse has been

reported in a local daily very recently. As per news report,
an old man of 60 years allegedly committed repeated rapes
on his 18 year old daughter. He used to commit this
heinous act forcefully against the will of his own daughter.
Ultimately she became pregnant and delivered a baby.
Since the parties were Muslims, matter went to maulana,
but even he refused to admit that a 60 years old religious
looking man can commit such woeful thing. When the
matter went to the court, for the very first time in the
history of UP, the paternity of the newborn was decided on
the basis of DNA report. The old man came out with frantic
excuses at various stages o f litigation. At one point of time
he contended that the act was consensual. Then he
contended that the daughter never belonged to him
therefore he did not commit any wrong thing, at the same
time he also contended that the newborn was not his baby.
Criminology & Penology - by Prof. N V Paranjape, 12"^ Ed. 2000
350
Lastly he contended that on account of old-age he has
become sexually Incapable of doing such act and hence he
disowns the baby. But after receipt of DNA report, which
confirmed that the old man was father of the child, court
rejected all the contentions of the father (old man)"*.
Here, incestuous behaviour has been discussed in a broader

perspective. In relation to a child such behaviour means
and includes any sexual act done by any adult person who
is in custody or contact of the child. He is very often a
trusted person. He may or may not be a parent. He may be
a near relative or any other known person.
Incest is somewhat different from other sexual offences. For

instance, it differs from rape in a way that a rapist may be
a stranger but Incest is very often inflicted by a trusted
person. There is trusted relationship between the victim and
perpetrator. Such relationship, however, need not be
biological / family relationship. It extends also to anyone
who is known to the victim e.g. a family friend, neighbour,
servant, private tutor etc. Such person takes advantage of
innocence, ignorance and vulnerability of the child to gratify
his sexual desires. Such act may not be actual sexual
intercourse. It includes touching private parts of the victim,
hugging or caressing him, making child victim to touch
* See ^Sandesh' dated 11.11.2005, Baroda Edition

351
private parts of the perpetrator, dressing or undressing in
front of victim or mal<ing victim to dress or undress in
presence of perpetrator. In sfiort, it includes any kind of
sexual perversion on the part of perpetrator committed as
against the child victim.
There has been an increasing reports of instances relating

to such pervert acts. The Law Commission of India, in its
172"^ Report of the year 2000, therefore recommended
inclusion of incest as an offence under IPC. The Law
Commission's observation was as under :-
""If the sexual assault is committed by a person in a

position of trust or authority towards the person
assaulted he / she shall be punished with RI for a
may extend to life imprisonment and shall also be
liable to fine."^
This is a welcome move but it Is Important to note here that

above recommendation does not include consensual
incestuous act between the consenting parties. I t covers
only the case where one of the parties is Inflicting sexual
assault on the other party against its will by taking undue
advantage of his superior position. It is doubtful that where
as cited in Griminology & Penology - by Prof. N V Paranjape, 12"" Ed. 2000
352
a vulnerability / innocence of child victim is exploited then
whether such act would fall within the meaning of above
recommendation or not.
Incestuous sexual behaviour might have been in practice in

our country for a long time, but awareness about such
things has taken place in past few years. May be before
that such instances went unnoticed or unreported. But
nowadays on account of sensitization of the society to some
extent, such instances have started coming to the light.
Thanks to the social organizations. NGOs and such other
social work institutions have played a significant role in this
area. Still it can safely be said that large number of persons
are unaware of such things.
The study conducted by some organizations In this regard

reveals mind-blowing data^
Sr. Name of the Year Remarks

No. organization of
study
1 Sakshi Violence 1997 conducted a study on school-
Intervention going girls in New Delhi. The
Centre study covered 350 girls. The
study reveals that 6 3 % girls had
been sexually abused by family
members. Whereas, 25% girls
had either been raped, forced to
^ The data is excerpts from The Children We Sacrifice: A Resource Book, edited by Grace Poore,
Silver Spring and is available on internet
353
masturbate tine perpetrator, or
forced to perform oral sex.
2 Tata Institute 1994- carried out a study o n l 5 0 minor-
of Social 95 age girls in Bombay. The report
Sciences reveals that about 58 of the girls
had been sexually abused before
age 10. Out of 150 gfrls, 50 girls
had been victimized by a family
member or a family friend.
3 Ralii 1997 Study covered 1000 English-
speaking middle and upper class
women living in Delhi, Bombay,
Madras, Calcutta and Goa. 7 6 %
of women admitted that they had
been sexually abused as children.
7 1 % had been abused either by
relatives or someone they knew
and truted.
4 Samvada 1996 Study covered high school
students. 4 7 % of respondents
reported that they had been
sexually abused out of which
6 2 % had been raped once and
3 8 % had suffered repeated
violations.
The above study revealed that the perpetrators included

relatives, family members, family friends, the persons
trusted by or known to the victims, Victimization included
rape, forced masturbation and oral sex. Some of the victims
fell pray to even multiple perpetrators.
Incestuous behaviour on the part of perpetrators is a

complex psychological problem. In most of the cases, it is
regarded as pervert act by a person suffering sexual
abnormalities. They are named as Pedophile. However, it is
354
not correct to say that they are psychic and ill-minded
persons suffering from mental disorders. Many of them are,
on the other hand, are absolutely normal. Their move is
conscious, intelligent, pre-determined and cunning. So,
most of them are opportunistic who take disadvantage of
vulnerability of innocent children.
7.3 Consequences of Incestuous Sexual

Abuse
Incestuous Sexual Abuse of children is ruthless and
rampant. It causes serious psychological problems to the
children. CSA has great devastating effect on the child
psychology. The survivors of sex abuse develop different
symptoms depending upon their own nature and
upbringing. Some of the victims develop following amongst
other, problems;
• becoming introvert,
• becoming more aggressive,
• developing serious feeling of unnecessary irritation,
• ' l o s i n g trust and confidence on their near and dear
ones,
• lack of confidence,
• low self esteem,
• feeling of guilt,
• suppressed feeling of revenge,
355
• inability to express feelings,
• becoming addicted to drugs and alcohol,
• developing indifference towards sex and sexual
activities.
7.4 Remedies
Since it is a technical and complex problem there is no
overnight remedy for such wrongs. Once the wrong is done,
it cannot be undone. However, some corrective or
reformative steps can certainly be taken. The rule that
' prevention is better than cure' applies to such cases with
full force. I t is better to prevent the occurrence, and in case
when such incidence has already taken place then to
prevent its reoccurrence. One of the most important hurdle
is that since such wrongs are done only secretly, it Is
difficult to identify its happenstance. Further our social
system adds fuel to the problem. In our society, discussing
sex is considered to be a bad thing. Therefore, parents do
not discuss sex with their children to educate them about
sex or such heinous sexual offences / assaults. This results
in children developing false and superstitious feelings about
the sexuality. In our society sex is confined only between
the four corners of wedlock and discussing it with any other
person is a matter of public shame. On account of this
orthodox culture, victims of such wrongs cannot share such
things even with their parents or family members. Further,
356
sometimes, hesitant complaints of the victims go unnoticed.
I t is therefore necessary to talce proper steps to prevent
such l<ind of sexual abuse of the children by family
members or trusted persons. Iâny authors, researchers,
social activists have suggested many things which might be
of some use. After tai<ing into account the gravity of the
matter, it is felt that following amongst other measures
would be of some help :
> Foundational education relating to sex must be

provided to the child.
> They must be made aware that they can be sexually
abused by anyone. However, in doing so, it must be
born in mind that the matter should be put up in such
a way that they do not conceive feeling that all their
family members and known persons are sexual
assaulters. They must be gently taught that this can
happen to them so ' be cautious'.
> Parents should be on friendly terms with the children
so that they can share their personal feelings with
parents.
> Children must be educated about sexual assaults and
they should be trained that if they sense any such
abuse from anybody they immediately intimate their
parents about such incidence.
357
> Whenever any such unfortunate incidence tal<es place
with a child, such child should never be blamed for it
as if he is a co-wrongdoer. It must be kept in mind
that children of very tender age can never be treated
to be an accomplice of such heinous acts even though
they did not object to it at the relevant point of time.
At such tender age, children know very little about
the sex, therefore they have great curiosity to know
sexual details during pre-puberty age and sometimes
even after attaining puberty.
> Children are by very nature shy and lack expression
ability. Therefore, they should not be embarrassed by
bombarding questions. They, in case of discovering
such instance, should be dealt with gently to know
the details.
> A single Isolated conversation with the child relating
to sex or sexual abuse is not enough. Children cannot
be expected to remember the whole conversation in
its true latter and spirit. Therefore, occasional
conversation would be required.
> The conversation should be in simplified and lucid
manner so that a child of tender age can understand
It correctly and properly.
> Very often a direct talk on this topic is not possible
with children. Therefore, such things can be taught to
them In the form of stories etc. As a part of moral of
358
the story they can be taught that how to identify such
' bad touch' and such other sexual abuses.
> Last but not least, it is not only the part of education
to the children. In fact, in our society, even many
adults are unaware of such things in true sense.
Therefore, proper education to adults in regard is also
of vital importance. Parents must be educated of this
aspect first. If parents are aware then only they can
help their children.
Besides above suggestions and recommendations, one

thing goes without say that overall social sensitization of
this issue is inevitable. This can be done by way of articles,
write-ups, seminars, gatherings etc.
It may not be out of place to mention here that United

Nations Convention on the Rights of the Child, 1989
specifically makes a provision in this behalf in the following
words.
"Article 19
1. States Parties shall take all appropriate
legislative, administrative, socialand educational
measures to protect the child from all forms of
physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the-^
359
care of parent(s), legal guardian(s) or any other
person who has the care of the child.
2. Such protective measures should, as
appropriate, include effective procedures for the
establishment of social programmes to provide
necessary support for the child and for those
who have the care of the child, as well as for
other forms of prevention and for identification,
reporting, referral, investigation, treatment and
follow-up of instances of child maltreatment
described heretofore, and, as appropriate, for
judicial involvement."
However, still the law, as observed earlier, is inadequate in

India about this issue. This perhaps is a novel concept for
Indian society. Therefore, legislature has to play its role
now by enacting a suitable comprehensive legislation to
protect our children with are often referred to as future of
this nation. It is concluded with a hope that our legislature
will make suitable amendment in IPC to accommodate the
provisions relating to above menace in tune with the
recommendations made by Law Commission of India in the
year 2000.
360
7.5 Child Trafficking and Prostitution
'Trafficking' means selling or buying human beings lilce

goods. Prostitution has been defined to mean "the sexual
exploitation or abuse of persons for commercial purposes"^.
The child prostitution refers to situations in which children
engage in regular sexual activity for material benefits for
themselves and their families^. These are institutionalized
arrangements - sustained, patterned social structures - in
which children are used sexually for profit^.
Trafficking and prostitution are full fledged industries. They

are spread the world over. Further trafficking is third largest
industry in the world after drugs and arms. The trafficking
of women, young girls and children at international level
continues to be a global problem which is generating seven
billion dollars business every year^°. Dr. Manik Chakrabarty
observes, "Trafficking of women and children for the flesh
trade has emerged as one of the most profitable trades in
the world today. Each year, an estimated seven million
people, mostly women and girls, are trafficked Into local
and international sex industries. The commercial sexual
exploitation of children is a very serious violation of
7 The Immoral Traffic (Prevention) Act, 1956 - S.2(f)

8 Law and Child - N K Chakrabarti. l^* Ed., pp. 152
9 Rights of Children - B. Gopalkrishnan, l^t Ed. 2004
'° Criminology and Penology - By N.V- Paranjape, 12* Ed. 2005
361
children's right, it implies not only that the child is sexually
abused by the adult, but also that there may be
remuneration In cash or kind. The child is thus treated not
only as a sexual object, but also as a commercial
commodity."^^ Thus the problem of child trafficking and
child prostitution has emerged as a global problem. All most
all countries have shown great concern for this social
stigma. I t is not so that this evil exists only in third world
countries, but in fact it has its roots in almost every country
of the world. I t exists also in developed countries like
England and America. It may partially be true that the
children are supplied in most of the cases from poor
countries where there is very low per capita income. The
problem is increasing day by day. Asian region Is at focal
point. The children are trafficked from India, Nepal,
Pakistan and Bangladesh. As per one estimate, every year
nearly 200000 women and girls are trafficked from Nepal to
work as prostitutes worldwide. Out of this nearly 12000 are
trafficked to India each year. After these young girls are
trafficked, they are sold into Indian brothels and
immediately forced into submission by being gang raped,
starved, locked in Isolation, beaten, and forced to use
drugs. If the girls resist, they are beaten further and often
bound and gagged during initial rape. After months of
^^ International Law on Trafficking in Child for Prostitution : The Indian Experience - cited in
Law and Child - by Dr. N. K. Chakrabarti, l" Ed.2004
362
physical and emotional torture, isolation, and rape the girls
break down and fully submit to their new life^^.
Why only Nepal and Bangladesh, even in India child

prostitution of local people is flourishing in full swing. To
bring about social awareness or otherwise, many Bollywood
films have focused the theme of their film on child
prostitution and sexual abuse of children. For instance the
Meera Nair's Hindi film Mansoon Wedding depicted the
instance of child sexual abuse. The another Bombay based
film 'Split Wide Open' depicted the miserable plight of
Bombay's poor children who sell flowers on the crossroads.
Such children are picked up by pedophiles and sexually
abused. Many of such poor children are kidnapped and sold
to the brothel houses, whereafter they ultimately fall in the
steel clutches of prostitution. It's a one-way. No one can
turn back once entered or thrown into it.
The Hon'ble Supreme Court in Vishal Jeet V. UOI^^ dealt

with the problem of child prostitution in detail. The
observation of the Court, which is reproduced hereunder, is
self explanatory and eye-opening. The Court observed -
^2 see site www.asiaobserver.coin

13 1990(3)SCC 3 1 8
363
"Many unfortunate teenaged female children and girls in full
bloom are being sold in various parts of the country, for
paltry sum even by their parents finding themselves unable
to maintain their children on account of acute poverty and
unbearable miseries and hoping that their children would be
engaged only in household duties or manual labour. But
those who are acting as pimps or brokers in the 'flesh
trade' and those brothel keepers who hunt for these
teenaged children and young girls to make money either
purchase or kidnap them by deceitful means and unjustly
and forcibly inveigle them Into 'flesh trade'. Once the
unfortunate victims are taken to the dens of prostitutes and
sold to brothel keepers, they are shockingly and brutally
treated and confined in complete seclusion in a tiny
claustrophobic room for several days without food until they
succumb to the vicious desires of the brothel keepers and
enter into the unethical and squalid business of prostitution.
These victims though unwilling to lead this obnoxious way
of life have no other way except to surrender themselves
retreating into silence and submitting their bodies to all the
dirty customers including even sexagenarians with plastic
smile."
" I t is highly deplorable that many poverty stricken children

and girls in the prime of youth are taken to 'flesh trade'
which is being carried on in utter violation of all canons of
364
morality, decency and dignity of humanlcind. There cannot
be two opinions - indeed tliere is none - that this
obnoxious and abominable crime committed with all kinds
of unthinkable vulgarity should be eradicated at all levels by
drastic steps."
The Court, before issuing directions, further observed,

" this malignity cannot be eradicated either by banishing,
branding, scourging or inflicting severe punishment on
these helpless and hapless victims most of whom are
unwilling participants and involuntary victims of compelled
circumstances and who, finding no way to escape, are
weeping or wailing throughout. This devastating malady can
be suppressed and eradicated only if the law enforcing
authorities in that regard take very severe and speedy legal
action against all the erring persons such as pimps, brokers
and brothel keepers. The courts in such cases have to
always take a serious view of this matter and inflict condign
punishment on proof of such offences. Apart from legal
action, both the Central and State Governments who have
got an obligation to safeguard the interest and welfare of
the children and girls of this country have to evaluate
various measures and implement them in the right
direction."
365
Here Supreme Court's observation in Gaurav Jain V.
UOI^"^, relating to prostitutes and their children is worth
noting. The court observed, "The prostitute has always
been an object and was never seen as a complete human
being; As if she had no need and aspirations of her own
Individually or collectively. When they make attempts either
to resist the prostitution or to relieve themselves from the
trap, they succumb to the violent treatment and resultantly
many a one settles for prostitution. A prostitute is equally a
human being. Despite that trap, she is confronted with the
problems to bear and rear children. The limitations of the
trade confront them in bringing up their children, be it male
or female. Their children are equally subjected to inhuman
treatment by the managers of brothels and are subjected to
discrimination and social isolation; they are deprived of
their right to live a normal life for no fault of their own. In
recent times, however, there has been a growing body of
opinion, by certain enlightened sections of the society
advocating the need to no longer treat the fallen women as
criminals or as objects of shocking sexual abuse; they are
victims of circumstances and hence should be treated as
human beings like others, so as to bring them into the
mainstream of the social order without any stigma
attached. Equally, they realize the need to keep their
children away from the red-light area, particularly girl
^4 1997(8) s e c 114
366
children and have them inducted into respectable and
meaningful avocations and / or self-employment schemes.
In no circumstances, they should continue to be in the trap
of flesh trade for commercial exploitation. They need to be
treated with humanity and compassion so as to integrate
them into the social mainstream. If given equal
opportunity, they would be able to play their own part for
peaceful rehabilitation, live a life culturally, socially and
economically with equality of status and dignity of person.
These constitutional and human rights to the victims of
fallen track of flesh trade need care and consideration of
the society. This case calls upon us to resolve that human
problem with caress and purposeful guidelines, lend help to
ameliorate their socio-economic conditions, eradicate social
stigma and to make available to them equal opportunities
for the social order.
Equally, the right of the child is the concern of the society

so that fallen women surpass trafficking of their person
from exploitation; contribute to bring up their children; live
a life with dignity; and not to continue in the foul social
environment. Equally, the children have the right to
equality of opportunity, dignity and care, protection and
rehabilitation by the society with both hands open to bring
them Into the main stream of social life without pre-stigma
affixed on them for ho fault of her/his."
367
The court rightly observed that, "it is necessary to
remember that the arms of the law are long enough to
mould the law to operate on an even level. The coercive
power with the law-enforcement agency to rescue the child
prostitute or the neglected juvenile, may not necessarily
end-up as a successful means. It would be the last resort
when all avenues fall. On the other hand, involvement of
the non-governmental organizations, in particular women's
organizations which are more resourceful for counseling and
cautioning, would make a deep dent into the thinking mould
of the fallen victims and would be a source of success for
their retrieval from prostitution or sending the neglected
juvenile to the juvenile homes for initial treatment,
psychologically and mentally, and will yield place to
voluntarily surrendering guardianship of the child prostitute
or neglected juvenile to the Welfare Board or the NGOs to
take custody of a child prostitute or the neglected for care,
protection and rehabilitation."
7.6 International Concern

Since the matter is of global concern many international
documents contain provisions in this behalf. The preamble
to the Declaration of the Right of the Child, 1959 provides
that the child by reason of his or her physical and mental
368
immaturity needs special safeguards and care Including
appropriate legal protection before as well as after birth.
Principle (9) of Declaration of the Right of the Child, 1959

reads as under:-
"The child shall be protected against all forms of neglect,

cruelty and exploitation. He shall not be subject of traffic, in
any form."
United Nations Convention on the Rights of the Child, 1989

in Art. 34 provides that -
"States Parties undertake to protect the child from all
forms of sexual exploitation and sexual abuse. For
these purposes. States Parties shall in particular take
all appropriate national, bilateral and multilateral
measures to prevent:
(a) The inducement or coercion of a child to engage
in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or
other unlawful sexual practices;
(c) The exploitative use of children in pornographic
performances and materials."
Besides these main provisions, large number of other

international resolutions, conventions and other documents
369
contain provisions specifically directed towards
safeguarding and promoting the interests of the children.
7.7 Constitution of India

Constitution is considered to be fundamental law of the
nation. Therefore, let us examine what provisions are there
in Indian Constitution that can be of any help in this matter.
Article 2 1 of the Constitution guarantees right to life and
personal liberty as a fundamental right. 'Right to life' is of
wider import which means and includes right to live with
human dignity. Article 23 further specifically prohibits
trafficking in human beings. Traffic in human beings
includes traffic in women and children for immoral
purposes^^. The prohibition on trafficking and prostitution
as imposed under this article has overriding effect on
Articles 19 and 21 of Indian Constitution.
Article 39(e) provides that the State should, in particular,

direct its policy towards securing that the tender age of
children are not abused. Article 39(f) provides that the
State, in particular, direct its policy securing that childhood
and youth are protected against exploitation and against
moral and material abandonment. These objectives reflect
the great anxiety of the Constitution makers to protect and
safeguard the interests and welfare of the children of our
'^ AIR 1953 Cal. 522; AIR 1990 SC 1412
370
country. The Government of India has also, in pursuance of
these constitutiona} provisions of clause (e) an (f) of Article
39, evolved a national policy for the welfare of the
children^^.
7.8 Legislative Response

Prostitution is one of the oldest trade known to the human
society. Some are of the view that if prostitution is
completely banned then it will have many adverse effects
on the society. One of such most feared consequence is
that It will result in drastic rise in rate of rapes as the
sexually starving persons will have no alternative to satisfy
their lust. Prostitution is a soclo-legal problem and
therefore, law only cannot effectively curb this age-old
practice. Still it is not so that there are no legal provisions
to check the practice. Some provisions are under IPC will
can be utilized in this directions. These provisions of IPC are
as under.
3 6 1 . Kidnapping from lawful guardianship: - Whoever

takes or entices any minor under sixteen years of age
if a male, or under eighteen years of age if a female,
or any person of unsound mind^ out of the keeping of
the lawful guardian of such minor or person of
unsound mind, without the consent of such guardian.
16 See Vishal Jeet v. UOI, 1990 (3) SCC 318

371
is said to kidnap such minor or person from lawful
guardianship.
Explanation: - The words "lawful guardian" in this

section include any person lawfully entrusted with the
care of custody of such minor or other person.
Exception: - This section does not extend to the act of

any person who in good faith believes himself to be
the father of an illegitimate child, or who in good faith
believes himself to be entitled to lawful custody of
such child, unless such act is committed for an
immoral or unlawful purpose.
3 6 2 . Abduction: - Whoever by force compels, or by any
deceitful means induces, any person to go from any
place, is said to abduct that person.
3 6 3 . Punishment for Icidnapping: - Whoever kidnaps
any person from India or from lawful guardianship,
description for a term which may extend to seven
years, and shall also be liable to fine. -
3 6 5 . Kidnapping or abducting w i t i i intent secretly and
wrongfully to confine person: - Whoever kidnaps
or abducts any person with Intent to cause that person
to be secretly and wrongfully confined, shall be
punished with imprisonment of either description for a
372
term which may extend to seven years, and shall also
be liable to fine.
366A. Procuration of minor girl: -Whoever, by any
means whatsoever, induces any minor girl under the
age of eighteen years to go from any place or to do
any act with intent that such girl may be, or knowing
that it is likely that she will be, forced or seduced to
illicit intercourse with another person shall be
punishable with imprisonment which may extend to
ten years, and shall also be liable to fine.
366B. I m p o r t a t i o n of girl from foreign country. -
Whoever imports into India from any country outside
India or from the State of Jammu and Kashmir any
girl under the age of twenty-one years with intent that
she may be, or knowing it to be likely that she will be,
forced or seduced to illicit Intercourse with another
person, shall be punishable with imprisonment which
may extend to ten years and shall also be liable to
fine.
3 6 8 . Wrongfully concealing or keeping in
confinement, kidnapped or abducted person: -
Whoever, knowing that any person has been
kidnapped or has been abducted, wrongfully conceals
or confines such person, shall be punished in the same
manner as if he dad kidnapped or abducted such
person with the same intention or knowledge, or for
373
the same purpose as that with or for which he
conceals or detains such person in confinement.
3 7 0 i Buying or disposing of any person as slave: -
Whoever imports, export, removes, buys, sells or
disposes of any person as a slave, or accepts, receives
or detains against his will any person as slave, shall
be punished with imprisonment of either description
for a term which may extend to seven years and shall
also be liable to fine.
3 7 1 . Habitual dealing in slave: - Whoever habitually
imports, exports, removes, buys, sells, traffics or
deals, shall be punished with imprisonment for life' or
with imprisonment of either description for a term not
exceeding the years, and shall also be liable to fine.
372.Selling minor for purposes of prostitution, e t c -
Whoever sells, lets to hire, or otherwise disposes of
any person under the age of eighteen years with
intent that such person shall at any age be employed
or used for the purpose of prostitution or illicit
intercourse with any person or for any unlawful and
immoral purpose, or knowing it to be likely that such
person will at any age be employed or used for any
such purpose, shall be punished with imprisonment of
years, and shall be liable to fine.
374
Explanation I: - When a female under the age of
eighteen years sold, let for hire, or otherwise disposed
of to a prostitute or to any person who l<eeps or
manages a brothel, the so disposing of such female
shall, until the contrary is proved, be presumed to
have disposed of her with the intent that she shall be
used for the purpose of prostitution.
Explanation I I : - For the purposes of this section "illicit

intercourse" means sexual intercourse between
persons not united by marriage or by any union or tie
which, though not amounting to a marriage, is
recognised by the personal law or custom of the
community to which they belong or, where they
belong to different communities, of both such
communities, as constituting between them a quasi -
marital relation.
3 7 3 . Buying minor for purposes of prostitution, e t c -

Whoever buys, hires or otherwise obtains possession
of any person under the age of eighteen years with
intent that such person shall at any age be employed
or used for the purpose of prostitution or illicit
intercourse with any person or for any unlawful and
Immoral purpose, of knowing it to be lilcely that such
person will at any age be employed or used for any
375
purpose, shall be punished with imprisonment of
Explanation I- Any prostitute or any person keeping or

managing a brothel, who buys or otherwise obtains
possession of a female under the age of eighteen
years shall, until the contrary is proved, be presumed
to have obtained possession of such female with the
intent that she shall be used for the purpose of
prostitution.
Explanation I I - "Illicit intercourse" has the same

meaning as in section 372.
3 7 7 . Unnatural offences- -Whoever voluntarily has carnal

intercourse against the order of nature with any man,
woman or animal, shall be punished with
imprisonment for life, or with imprisonment of either
description for term which may extend to ten years,
and shall also be liable to fine.
Explanation. -Penetration is sufficient to constitute the

carnal intercourse necessary to the offence described
in this section.
376
7.9 The I m m o r a l Traffic (Prevention) Act,
1956
Taking into account tiie serious problems that might be
caused by immoral traffic in women and girls and also In
pursuance of Newyork Convention held in 1950 In this
behalf, in the year 1956, Suppression of Immoral Traffic in
Women and Girls Act, was enacted. Looking to the
unsatisfactory working of the Act, it was further extensively
amended in the year 1978. But still, it also did not work.
Therefore, in the year 1986 a major amendment was
introduced in the Act. 'The Statement of Objects and
Reasons' clause of the said amended read as under:-
"The Suppression of Immoral Traffic in Women and Girls

Act, 1986 was enacted in pursuance of the international
Convention for the Suppression of the traffic in persons and
of the Exploitation of the Prostitution of Others signed at
New York on 9*^ May, 1950. It was amended in 1978 to
make good some inadequacies in the implementation of the
Act in the light of experience gained in its implementation.
Despite the amendments of the Act in 1978, It has been felt
that enforcement of the Act has not been effective enough
to deal witVi the problem of immoral traffic in all its
dimensions. Suggestions have been made to Government
by voluntary organizations working for women, advocacy
377
groups and various individuals urging the enlargement of
the scope of the Act, to make pena) provisions more
stringent and to provide for certain nninimum standards for
correctional treatment and rehabilitation of the victims. In
view of the aforementioned suggestions. It is proposed to
widen the scope of the Act to coyer all persons, whether
male or female who are exploited sexually for commercial
purposes and to make further amendments in the Act."
This amendment brought about many important changes in

the provisions of the Act. The name of the Act itself was
changed to Immoral Traffic Prevention Act (hereinafter
referred to as ITPA). Further the words 'women and girls'
were substituted with 'person' so as to bring within the
ambit not only female but also male prostitutes. The Act
does not prohibit prostitution but it aims at controlling the
prostitution activities by making several stringent
provisions. Thus, a prostitute himself/herself is not per se
liable to punishment under the Act. As on today, this Act is
the only specific legislation dealing with the problem of
prostitution.
But ITPA also has serious problems. First of all it does not
define trafficking. It distinguishes child and a minor even
when the definition of a girl child when the amendment
came into force (1986), was a child upto the age of 18
378
years under the 1986 Juvenile Justice Act As far as
cinildren are concerned, tiie Act except in the beginning
where it defines a child and a minor, mai<es no distinction.
So it can be argued that a child who is soliciting, or carrying
on the activity of commercial sex can be punished. In fact
they are being punished. Strangely, the same section
provides for a lesser sentence for a man without assigning
any reason^^.
In case of Gaurav J a i n V- UOI^®, the Hon'ble Supreme

Court emphasized that for effective implementation of ITPA,
three Cs viz. counseling, cajoling and coercion are
necessary. The court further pressed need on rehabilitation
of rescued prostitutes and children from the red-light area.
The court observed that merely legislative measures would
not be sufficient to eradicate this menace but a great social
concern and response is needed to combat this problem
and therefore, court appealed to NGOs to come forward and
join hands to eradicate this social evil.
7.10 Judicial Response .

Whenever any matter is of legal or soclo-legal importance,
the judicial interpretation or judicial response play a pivotal
role in the matter. This is because it is the judiciary which is
" Supreme Court on Children, 1«^ Ed. 2005 pp. 431

18 Ibid
379
the custodian of our fundamental rights. In the matters of
child trafficking and prostitution too judiciary has shown
great concern. The judicial response for eradication of this
social menace becomes evident from two Important
judgements of Hon'ble Supreme Court viz. Vishai Jeet V.
UOI^^ and Gaurav Jain V- UOI^°.
In the year 1990 in Vishal Jeet's case, after analyzing the

problem of trafficking of women and children for sexual
abuse, the Hon'ble Court gave extensive guidelines as
under :-
"(1) All the State Governments and the Governments of

Union territories should direct their concerned
enforcing authorities go take appropriate and speedy
action under the existing laws in eradicating the child
prostitution and without giving room for any complaint
of remissness or culpable indifference.
(2) The State Governments and the Governments of

Union territories should set up a separate Advisory
Committee within their respective zones consisting of
the Secretary of the Social Welfare Department,
sociologists, criminologists, members of the women's
19 Ibid
20 1997(8)SCC 114
380
organizations, members of the Indian Council of Child
Welfare and Indian Couneil of Social Welfare as well
the members of various voluntary social organizations
and associations etc., the main objects of the Advisory
Committee being to make suggestion of;
(a) the measures to be taken In eradicating the child

prostitution, and
(b) the social welfare programmes to be implemented
for the care, protection, treatment, development
and rehabilitation of the young fallen victims
namely the children and girls rescued either from
the brothel houses or from the vices of prostitution.
(3) All the State Governments and the Governments of

the Union territories should take steps in providing
adequate and rehabilitative homes manned by well-
qualified traineid social workers, psychiatrists and
doctors,
(4) The Union Government should set up a committee of
its own in the line, we have suggested under direction
No.2 the main object of which is to evolve welfare
programmes to be implemented on the national level
for the care, protection, rehabilitation etc. of the
young fallen victims namely the children and girls and
to make suggestions for amendments to the existing
381
laws for enactment of any new law, if so warranted for
the prevention of sexual exploitation of chUdren.
(5) The Central Government and the Governments of
States and Union territories should devise a machinery
of its own for ensuring the proper implementation of
the suggestions that would be made by the
representative committees.
(6) The Advisory Committee can also go deep into
DevadasI system and Jogin tradition and give their
valuable advice and suggestions as to what best the
government could do in that regard."
In case of Gaurav Jain V. UOI^^, which more particularly

related to the problems of children of prostitutes, the
Hon'ble Court pressed need to remove children of the
prostitutes from red-light area and rehabilitate them
suitably. I t also issued extensive guidelines and directions
to various authorities. The court while doing so placed
heavy reliance on the report of V. C. Mahajan Committee
and other reports and articles published In recognized
journals. After giving directions to the State, the court
observed that "Society is responsible for a wornan
becoming victim of circumstances. The society should make
reparation to prevent trafficking in women, rescue them
from red-light areas and other areas in which the women
21 Ibid
382
are driven or trapped in prostitution. Their rehabilitation by
socio-economic empowerment and justic^^ is the
constitutional duty of the State. Their economic
empowerment and social justice with dignity of person, are
the fundamental rights and the court and the Government
should positively endeavour to ensure them."
Thus, In these two noteworthy judgements, the Supreme

Court has shown its concern for this noble cause of
protecting the childhood of victims of prostitution. I t is pity
that even after all such legislative provisions and directions
by the Apex court of the nation from time to time, the
position is not Improving, rather sometimes it is felt that it
is worsening. Again, the causes here are - vast territorial
area, uncontrolled population, extreme poverty, low level of
education and so some extent Indifference of the society.
Hope in the time to come, the Government and social
organizations would do something substantial to prevent
this horrific abuse of the children.
7-11 Child-rape
Rape is a wrong not only against the body but also against
the soul of the victims. This is more true in case where the
victim is a child. Child-rape is one of the most heinous
wrongs against the child rights. It must be strongly
condemned and greatest possible punishment should be
383
inflicted on the persons who commit such inhuman
distressful acts.
Indian Penal Code, which is a substantive crlminallaw, does

not make separate classification for offences against
children. However, at the relevant places, some provisions
have been made with special reference to the children. In
the same way, there is no separate independent provision
for child-rape in Indian Perral Code. But the provisions
relating to rape contain the provision relating to child rape
too. S. 375 of IPC which deals with offence of rape, reads
as under :-
375. Rape: - A man is said to commit '"rape" who, except

in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling
under any of the six following descriptions: -
First: - Against her will.
Secondly: -without her consent
Thirdly: - With her consent, when her consent has
been obtained hy putting her or any person in whom
she Is Interested in fear of death or of hurt.
Fourthly: -With her consent, when the man knows
that he is not her husband, and that her consent Is
given because she believes that he Is another man to
whom she Is of believes herself to be lawfully married,
384
Fifthly: - With her consent, when, at the time of
giving such consent, by reason of unsoundness of
mind or into)(ication or the administration by him
personally or through another of any stupefying or
unwholesome substance, she is unable to understand
the nature and consequences of that to which she
gives consent.
Sixthly: - With or without her consent, when she is
under sixteen years of age.
Explanation: - Penetration is sufficient to constitute

the sexual intercourse necessary to the offence of
rape.
Exception: -Sexual intercourse by a man with his wife,

the wife not being under fifteen years of age. Is not
rape.
376, Punishment for rape: -

(1) Whoever, except In the cases provided for by
sub-section (2), commits rape shall be punished
with imprisonment of either description for a
term which shall not be less than seven years
but which may be for life or for a term which
may extend to ten years and shall also be liable
to fine unless the woman raped is his own wife
385
and is not under twelve years of age, in which
cases, he shall be punished with imprisonment of
either description for a term which may extend
to two years or with fine or with both:
Provided that the court may, for adequate and

special reasons to be mentioned in the
Judgment, impose a sentence of imprisonment
for a term of less than seven years.
(2) Whoever: -
(a) Being a police officer commits rape—
(i) Within the limits of the police station
to which he is appointed; or
(ii) In the premises of any station house
whether or not situated in the police
station to which he is appointed; or
(Hi) On a woman is his custody or in the
custody of a police officer subordinate
to him; or
(b) Being a public servant, takes advantage of
his official position and commits rape on a
woman is custody as such public servant or
in the custody of a public servant
subordinate to him; or
(c) Being on the management or on the staff
of a jail, remand home or other place of,
386
custody established by or under any law for
the time being in force or of a woman's or
children's institution takes advantage of his
official position and commits rape on any
inmate of such jail, remand home, place or
institution; or
(d) Being on the management or on the staff
of a hospital, takes advantage of his official
position and commits rape on a woman in
that hospital; or
(e) Commits rape on a woman knowing her to
be pregnant; or
(f) Commits rape when she is under twelve
years of age; or
(g) Commits gang rape.
Shall be punished with rigorous imprisonment for a
may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special

reasons to be_ mentioned in the Judgment, impose a
sentence of imprisonment of either description for a
term of less than ten years.
Explanation 1 - Where a woman is raped by one or

more in a group of persons acting in furtherance of
387
their common intention, each of the persO^^ s/7a// be
deemed to have committed gang rape within the
meaning of this sub-section.
Explanation 2- "Women's or children's institution''

means an institution, whether called an ofpbanage of
a home for neglected women or children df a widows'
home or by any other name, which is established and
maintained for the reception and care of women or
children.
Explanation: 3. - ''Hospital" means the prePnets of the

hospital and includes the precincts of any institution
for the reception and treatment of persons during
convalescence or of persons requiriPQ niedical
attention or rehabilitation.
As mentioned above, the rape is most heinous crime

against the human dignity. However, on account of very
nature of these provisions^ it becomes clear that ' r a p e ' can
be committed only on female and not on mafe. So the
protection under these provisions is guaranteed only to
female.
388
7.12 Relevance of consent of child
Rape is a sexual intercourse witli a female without her
consent and will. Thus the consent is a vitiating element in
an offence of rape. If it is proved that prosecutrix consented
to the act, her case would go outside the purview of this
provision. However, here we are concerned with child-rape
only and therefore further discussion would be in that
context only.
As per Section 90 of the IPC, unless the contrary appears

from the context, if a person who is under twelve years of
age of child gives the consent, such consent is no consent.
Moreover, Section 375 clause 6 makes it clear that when
the sexual Intercourse is had with a girl below 16 years of
age, the consent is irrelevant factor. The prosecutrix In such
case even though consented to the act, it does not help the
accused in any way- Further, when the consent Is obtained
by Intoxication or putting the victim under fear of death or
hurt then also such consent becomes null.
Likewise, by virtue of clauses (4) and (5) of Section 37-5,

there shall be no valid consent when it is obtained by fraud.
Further for sexual intercourse by husband consent of wife Is

not necessary. A husband can, as a matter of right, have
sexual intercourse with his wife, even against her will o r
389
consent. However, if the wife is below 15 years of age, the
case would again fall within the ambit of Section 375. It is
difficult to appreciate why legislature has kept the
difference of one year in above said two cases. Further, it
may not be out of place to mention here that even now JJ
Act has raised the age limit of girl child upto 18 years, then
why no such corresponding amendment has been
introduced in IPC.
7.13 Absence of injuries on male organ

While dealing with the question, whether absence of injuries
on male organ is sufficient to negative the prosecution case,
the Hon'ble Supreme Court in State of Himachal Pradesh
V. Raghubir Singh^^, held, ''Inferences have to be drawn
in every case from the given set of facts and circumstances.
There is not inflexible axiom of law which lays down that
the absence of Injuries on the accused would always be
fatal to the prosecution case and would discredit the
evidence of the prosecutrix, other found to be reliable. The
presence of injuries on the male organ may lend support to
the prosecution case, but their absence is not always fatal."
22 1993(2)SCC 622
390
7.14 No need of corroboration of victim's
accusation
The another important question in case of a rap^ (especially
a rape on a child) is that whether evidence of the victim of
sex offence alone is admissible without corrobc?ration? The
Hon'ble Supreme Court answered in afflrniative. The
justification given by the court is of full length ^nd of great
legal and social Importance and hence, it has been
reproduced hereunder. The court in Bharwada
Bhoginbhai Hirjibhai V. State of Gujarat^^ r^led :-
"In the Indian setting, refusal to act on the testimony of a
victim of sexual assault in the absence of corroboration as a
rule, is adding insult to injury. Why should the evidence of
the girl or the women who complains of rape or sexual
molestation be viewed with the aid of spectacles fitted with
lenses tinged with doubt, disbelief and suspicion? To do so
is to justify the charge of male chauvinism in a male
dominated society. We must not be svvept off the

feet by the approach made in the western world which has
its own social milieu, its own social mores, its pwn code of
life. Corroboration may be considered to establish a sexual
offence in the backdrop of the social ecology of the western
world. I t is wholly unnecessary to import the âid concept
on the turnkey basis and to transplant it on t h ^ Indian soil
23 1983(3) s e c 217
391
regardless of the altogether different atmpsphere, attitudes,
moves, re.spo'^ses of the ladlaa socletv, aad Its i^rofile/'
After dealing with the difference between western culture

and Indian social system, the court further dealt with the
question why the statement of the rape victims should be
admitted even without corroboration. The court's view was
that in view of typical Indian social system or structure, it is
next to impossible to conceive that a girl may nrial<e false
accusations of the rape against any other person-
In its concluding paragraphs, the court again observed,

"just as a witness who has sustained an injury (which is not
shown or believed to be self-inflicted) is the best witness in
the sense that he is least iilcely to exculpate the real
offender, the evidence of a victim of a seX offence is
entitled to great weight, absence of corroboration
notwithstanding. And while corroboration in the form of
eyewitness account of an independent witness nnay often be
forthcoming in physical assault cases, such evidence cannot
be expected in sex offences, having regard to the vary
nature of the offence. J t would therefore, be adding insult
to injury to insist on corroboration drawing inspiration from
the rules devised by the courts in the western world."
392
7.15 Reliability of evidence of medical
professional
It is not novel in legal proceedings that in many cases, the
experts of respective fields are called-upon to give their
expert opinions. This helps courts to come to more accurate
findings. However, such expert evidences, though entitled
to great weightage, are not final and conclusive for legal
proceedings. Similar view was taken by the Supreme Court
in Madan Gopal Kakkad V. Naval Dubey and Another^"^.
In support of this, the court cited various judicial decisions
and opinions of authors of some authenticated books as
under.
Nariman J. in Qiieeii V. Ahmed Ally observed - The

evidence of a medical man or other skilled witness,
however, eminent, as to what he thinks may or may not
have taken place under particular combination of
circumstances, however, confidently, he may speak, is
ordinarily a matter of mere opinion.
FazalAli, J. in Pratap MIsra V. State of Orissa observed -

.... Iêdical jurisprudence is not an exact science and it is
indeed difficult for any Doctor to say with precision and
exactitude as to when a particular injury was caused.... As
24 1992(3) s e c 204
393
to the exact time when the appellants may have had sexual
inter-course with the prosecutrix.
A book on ' Medical Juriprudence and Toxicology - by Modi

(21^^ Ed.) pp. 369 - Rape is a crime and not a medical
condition. Rape is a legal term and not a diagnosis to be
made by the medical officer treating the victim. The only
statement that can be made by the medical officer is that
there is evidence of recent sexual activity. Whether the
rape has occurred or not is a legal conclusion, not a medical
one.
Besides the above references, the Explanation attached to

Section 375 makes it clear that penetration is sufficient to
constitute the sexual intercourse necessary to the offence
of rape. Further it may also be noted here that such
penetration may even be the slightest one and need not be
complete insertion of the whole penis coupled with
ejaculation of semen. Thus it is submitted that in case of
child-rape the only requirement would be that whether
some injuries are found on the private parts of the victims
to lead the inference that the accused might have tried to
insert the penis in the vagina.
394
7.16 Child Sexual Abuse vis-a-vis
Information Technology
Very recently, the first case of cyber crime was reported in
Baroda. The brief facts of the case were that a school going
boy had reasonably good command over computer
operation and he had somewhat technical knowledge of
photo-editing on computers. Apparently he was friendly
with a giri studying with him in the same school and same
class. He somehow procured a group photograph wherein a
giri was also there. The boy downloaded a nude female
photograph from the internet and on the face of that nude
photograph, with the help of computer, he fixed the face of
the giri in question. Thus after such editing, the nude
photograph appeared to be that of the same giri studying
with him in his school. Then he emailed that photo to one of
the female friend of that giri. The giri to whom the
photograph was sent immediately intimated the receipt of
that vulgar photograph to the concerned giri and her
parents. The matter was reported to the police and the
police raided the house of the accused boy and found from
his house the computer which was used for this cyber
crime. He was arrested and further proceedings were
initiated against him^^. I t is pertinent to note here that
when a face is fixed on the body of some other person with
25 reported in Divya Bhaskar, Gujarat Samachar on 8^^ April, 2006

395
the help of computer software it is called masking. When
the fact of a person is fixed on the body of some animal,
bird etc. it is called morphing. However, in morphing facial
expressions of a person can also be changed. Such things
can very easily be done in some available software relating
to photo editing such case Photoshop, Corel-draw etc.
Thus, the computer which is the gift of technological

development, sometimes proves to be a curse for children.
In this fast-changing world, everyday new software are put
in the market which offer various incredible facilities. The
Internet and Its wide usage has also not remained
uncommon even for a layman. The facility of internet is now
available at so cheap rates that even children can have
access to this facility by just spending few coins out of their
pocket money. Further, since various informative websites
are available on internet, even parent make this internet
facility available to their children at home. Sometimes, the
unbound and uncontrolled freedom entices children to have
access to pornographic websites. There are thousands of
websites which offer porn material free of cost. The visual
material published on these sites is not only vulgar but also
pervert. The access to these sites by children leads to
permanent psychological harm to the children. So much so
that continuous access to such materials is also likely to
make the child sex maniac. Such children either become
396
victims of sexual abuse or after they are grown up, they
resort to sexual abuse of others.
The problem of this internet nuisance is not limited to

vulgar websites which are accessed by the children. The
problem is rather more dangerous than It appear. Now a
days, the new trend has started of making pornographic
movies and photographs of even children. Such material Is
also placed on Internet on paid sites.
It is difficult to combat this problem at domestic level. The

reason being that most of the porn sites have their source
place beyond the territories of India. Further in some of the
Western countries, the pornography is even legally
recognized and the copyrights are also granted to such
pornographic movies. The pornographic sites available on
internet are duly registered and having their domain.
Further, on account of some technical reasons, it is also not
possible to completely prohibit the view of these sites in
India.
It is submitted that there is no specific law relating to cyber

crimes in India, the field being very new to India scenario.
However, in India, we have Information Technology Act,
which has some provisions which if properly Invoked can
regulate the things. Thus the viewing of pornographic sites
397
have been prohibited in cyber cafes. However, it Is again
important to note that though viewing such sites in cyber
cafes is prohibited and made punishable offences, still
viewing such sites by one in his own private premises is not
prohibited by law. There the jurisdiction of the Act does not
apply. Further masking and morphing as mentioned in the
beginning of this topic is also made punishable under the
Act.
Conclusion :
The sexual abuse or exploitation of a child is not only a
moral wrong but also a crime. The tender age of the child
requires that they should be well nourished; they should be
kept away from all the evils of the society; they should be
educated property; they should be taught to abjure
violence, respect others and inculcate the spirit of
brotherhood amongst them. If a child becomes victim of
sexual abuse. It almost loses its childhood - its innocence.
The horrific consequences of the CSA have already been
discussed In detail in preceding paragraphs.
Now the question arises what to do with wrong-doers? The

fact remains that if the wrongdoer is merely punished for
imprisonment for few years, ultimately he is going to come
back in the society and may commit such wrongs again.
Further, in our legal system, we don't have any provision
398
whereby we can permanently get rid of such persons.
Thereforef the on}y alternatJve Is not on}y to bunlsh them
but also apply some reformative techniques SQ that such
persons may be prevented from doing such things again.
Here also it may be remembered that some pehsons can be
reformed, some cannot be. Further, we cannot depart from
provisions of punishment. The reason it punishment does
have some deterrent effect on the mind-êts of the
wrongdoers.
At last, it is concluded with a suggestion (even at the cost

of repetition) that wherever we do not have specific penal
provisions for some offences discussed above - for instance
incestuous sexual abuse, cyber crimes etc. it is high time to
introduce stringent provisions in that behalf in the interest
of the society in general and for the welfare anct betterment
of the children in particular.
399
Chapter - 8
CONCLUSION & SUGGESTIONS

Chapter - 8
CONCLUSION AND SUGGESTIONS
For every nation^ children are one the most important

assets. They are the future of the nation. They can make or
mar the fate of the nation. The future of the country heavily
depends on how it grows and develops the children. It is,
therefore, first and fundamental responsibility of the every
citizen individually and the nation as a whole, to protect and
promote the interest of the children. The children form
weaker and vulnerable section of the society and hence
they are susceptible and are exposed to many threats.
These threats are not only limited to physical security but
also bear an adverse impact on their socio-economic
conditions. For overall development of human personality
and to be a responsible citizen in future, children need
protection at all levels and in every respect; from their
parents, from the society at large and the State. As
discussed at length in earlier chapters, the legal protection
forms an important part in contributing towards making a
child responsible citizen of tomorrow. The legal protections
for the purpose of this study have been divided in the
suitable Chapters so as to have the correct idea of the
present position of a child under various statutes and
thereby to evaluate whether there is any need to bring an
400
improvement. The preceding Chapters, thus contain the
critical analysis relating to position of child in Civil, Criminal
and Procedural Laws prevailing in India.
Child Labour
The problem of the Child Labour is age-old and is deeply
rooted in India, It is submitted that this issue has its
genesis in socio-economic conditions of Indian people in
general. Poverty and illiteracy of parents is one of the prime
causes of child labour in India. It is, therefore, necessary to
provide free and compulsory basic education to the
children, at the same time the parents are required to be
educated and awareness is to be brought about as to the
evil of child labour. This needs concerted efforts not only on
the part of Government but from all sections of the society.
The government should direct all its economic policies to
eradicate the evil of unemployment, underemployment and
poverty. When the parents are well employed having
suffFcient means of h'vefihood, they woufd never wish their
child to work instead they would send their ward to the
school. The government, through isolated legislations may
not be able to address this problem. Society as a whole
should rise to eradicate the evil of child labour with
consolidate and constructive efforts.
401
Article 21 of the Indian Constitution guarantees Right to Life
as a fundamental right. In its wider connotation, this right
means and includes not only bare survival but to live with
human dignity. Child labour is prima facie inconsistent with
this right to live with human dignity.
India has several Constitutional and statutory provisions to

regulate and to some extent eliminate the child labour. This
provisions have been discussed at length in the preceding
Chapters. But these provisions have led to nowhere in
eradication of child labour. Even the report of
Gurupdswamy Committee (formed in 1979) accepted the
fact that any attempt to eliminate child labour through legal
recourse would not be a practical piroposition. Hence the
Committee suggested to prohibit child labour only In
hazardous employments and to regulate and ameliorate the
conditions of work in other areas. The Government, on the
basis of recommendations made by the said Committee,
came out with Child Labour (Prohibition and Regulation)
Act, 1986. The Act was attached with a list of hazardous
employment and was amended from time to time to include
within its scope more and more industries. Very recently,
on 1 0 * October, 2006, vide an executive circular published
in Official Gazette, child labour has been prohibited in
domestic work and on tea stalls, dhabas and hotel industry
etc. This is a welcome step In the direction of elimination of
402
child labour, as these are the places where we come across
child Jabour the most.
It may further be noted that Article 24 of Indian

Constitution states that "No child below the age of fourteen
years shall be employed to work in any factory or mine or
engaged in any other hazardous employment." This means
that this article imposes a complete prohibition on
employment of children in factories and mines. However, so
far as other non-hazardous employment are concerned, a
child below the age of fourteen can be employed provided
the employment is non-hazardous. This age limit appears to
be too low to protect the tender age of the children. In view
of the discussions made in earlier chapters, there is a need
to keep a blanket ban on employment of children below a
particular limit in any employment. It is, therefore,
suggested that Article 24 should be revised and it should
read as : -
"No child below t h e age of sixteen years shall be

employed to w o r k In any factory, mine or any other
employment."
To eradicate this evil from Its grass-root level, we need to

make such policies and framework so as to bring about
certain concrete and constructive implementable changes.
403
Some practicable and viable suggestions have been made
to mitigate the gravity of this menace under the topic
entitled as "Suggestions" in the present Chapter.
Adoption, Marriage & Maintenance

The legal rights of children under personal laws are peculiar
to the religion they belong to. In codified personal laws of
India one can see a heavy impact of uncodified personal
laws. For example the provisions relating to marriage,
maintenance and adoptions have been codified with minor
changes in uncodified personal laws. It may also be noted
that vide Indian Constitution, India declared itself to be a
secular State. However, in many matters it miserably failed
to bring about legal secularism. Adoption, marriage and
maintenance are some of such matters where legislature
has failed to make uniform law applicable to all religions.
The dearth of uniform adoption law Is adversely affecting
the interest of orphan and destitute children who are
awaiting their adoption by suitable families. It Is therefore
necessary that on priority basis, the legislature to come to
some consensus and make and impfement uniform adoption
law in India,
So far as Hindus are concerned there is codified adoption

law in existence. This law enables and regulates adoptions
in India. Muslim law does not recognize adoption, though It
404
does not specifically prohibit it. Further in codified Law
relating to adoption, there is no provision for International
Adoption. At present, Inter-country adoptions are governed
by the Central Adoption Resource Agency (CARA) which was
estabfished in view of directions given by the Supreme
Court in Laxmikant Pandey V. Union of India^. Hon'ble
Court took notice of the fact that children are treated to be
chattel and are sold and purchased by the adoption
agencies under the guise of adoption. The court gave broad
guidelines for regulating inter-country adoptions, which
became a guiding factor for the subsequent judgements in
this area. CARA, as such, regulates and promotes the inter-
country adoptions from India. The objective of the
Guidelines is to provide a sound basis for inter-country
adoption within the framework of the norms and principles
laid down by the Honourable Supreme Court of India In the
series of Judgments delivered In L-K- Pandey V. Union of
India^ and Others between 1984 and 1991 and various
other court orders from time to time and to take all other
measures necessary for the promotion of in-country
adoption of children as well as welfare of children in
general. The goal is to find a family for as many orphan
children as possible and to safeguard their interests. India
is a signatory to the Hague Convention on Inter-country
' 1984(2) sec 244

Mbid
405
Adoption-1993^ For the purpose of implementation of the
Convention in our country, Ministry of Social Justice &
Empowerment is functioning as the Administrative Ministry
and Central Adoption Resource Authority (CARA) as the
Central Authority.
For a very long time, the child marriage has been as

complicated challenge as child labour is. Even today
thousands of child marriages do take place In different parts
of our country. Though we have laws regulating the child
marriages still those legal sanctions f a i l t o yield the desired
result due to several reasons. Here again, lack of education
and other socio-economic factors are responsible for this
menace. However, there are other legal technicalities
involved In it too. Very recently a Division Bench of Delhi
High Court pronounced a judgement^ in which it was held
that a marriage of a girl above 15 years of age is a valid
marriage. In fact there was nothing new in this judgement
as this judgement was in consistency with several other
judicial decisions by different High Courts on this point.
However, this judgement was wrongly regarded to be
judicial recognition of child marriages by some social
organizations. The point is that, the court, in the said
^ India has signed this Convention on 9* January, 2003 and ratified the same on 6"* June, 2003
^ News published in Divya Bhaskar, Vadodara Edition, 7* Oct. 2005
406
judgement, merely reiterated that the husband is the
natural guardian of a married minor female.
Child marriage is necessarily a social menace and hence law

has felt itself helpless in eradication of this evil. I t is
therefore submitted that it is high time to take up some
firm steps get rid of this problem as merely the law won't
be a proper solution for it.
Maintenance of children is another issue which directly

affect the overall development of a child's personality. We
have scattered provisions for maintenance of children in
different laws. Legitimacy or illegitimacy of children does
not come in way of maintenance of children. Still the fact
remains that children remain ill-maintained in our society.
There is a dearth of a well-defined Social Security System
wherein the children of poor parents can be maintained
properly. It is submitted that we need to have a system
wherein even the children of those parents who cannot
maintain their children, are properly maintained out of the
State funds.
407
Contractual Position of t h e Child
After the decision of Privy Council in Mohiri Biwi V_
Dharmodas Ghosh^, it is now well established that, an
agreennent with a minor is absolutely void. Even Indian
Partnership Act does not allow minor to be a full-fledged
partner. However, Section 30 of Partnership Act, which
allows the admission of a minor as a partner for the benefit
of partnership, carves out to be small exception to it. This
provision contains somewhat mysterious proposition of law
by providing that if a minor after attaining the majority
elects to continue to be the partner of the firm then he
becomes liable for all acts of the firm since the date of his
admission. In other words, he becomes personally liable for
even those acts of the firm which were done during his
minority. On one hand, general principles of contract does
not allow ratification by minor. On the other hand the said
provision is tantamount to the ratification of the acts done
by the firm during his minority. Therefore, this provision
should be amended to the effect that liability of minor starts
only from the date of his election to be a partner and not
from the date since when he was admitted to the
partnership. v
' (1903) 30 lA 114 : 30 Cal. 539 cited by Singh Avtar in Principles of Mercantile Law on pp. 79
408
Child Sexual Abuse
The irresistible human desire for gratification of sexual
urges manifests Itself In different forms. The worst of which
is child sexual abuse. The vulnerability of the children is
most exploited in sexual matters. The incidents of child-
rape and incestuous sexual abuse are reported everyday.
Admittedly, there are provisions in criminal law dealing with
sexual abuse of children. But the fact remains that these
provisions have not played much deterrent role.
Though there have been detailed provisions relating to

kidnapping, still the facts show that law enforcement
agencies have miserably failed in stopping kidnapping
cases. It is, therefore, required to make more stringent
provisions and sensitize law enforcement agencies and
people in general to combat the problem of kidnapping.
Further in many cases of kidnapping, the offence is
committed to use the child kidnapped to throw it in the still
clutches of prostitution. Therefore, more rigorous and
stringent punishment is required to be inflicted on the
offenders of child trafficking. This will have deterrent effect
and will help reduce these offences. I t is also necessary to
provide better opportunities to the children of the
prostitutes. For this purpose, the State Governments may
take help of NGOs and other voluntary associations.
409
Further, in India, there is no specific legislation to deal with
various sexual abuses of children. In particular, incestuous
sexual abuse is yet to be recognized in legal provisions.
Though the matter may fallwithin the relevant provisions of
IPC for indecent assault and child-rape, but still there Is a
great dearth of a specific statute that will cover all kinds of
sexual furtherance against the children.
Juvenile Justice (Care and Protection of

Children) Act, 2000
Juvenile Justice (Care and Protection of Children) Act, 2000,
this new enactment can be said to be the improved version
of the earlier one In many ways. First of all its changed
nomenclature speaks a lot about the enactment. This Act
has given away with the term 'juvenile delinquency' and
has introduced a new concept of 'child in conflict with law'.
The use of any kind of word has a definite Impact on the

psyche of a person. This changed terminology can also be
viewed in this light. It conveys a positive aspect to the child
who has committed some offence. He is not looked at
sternly, but a soft attitude is adopted towards him. So this
shift in the attitude can be said to be a major highlighting
feature of this Act over its predecessors.
410
Further, a detailed definition of 'child in need of care and
protection' is given in the Act. This Is an Important feature
in the attempt to protect the child who is the future of the
nation. The proper implementation of this definition Will
definitely go a long way in converting and transforming the
child into an asset of the country.
The careful examination of earlier decisions of the Apex

court on Juvenile Justice reveals an anomaly as to
determining what date will be applicable for giving, the
benefit of this legislation to the accused person. Some of
the decisions say that date of commission of offence would
be relevant; whereas, some of the decisions make it clear
that relevant date for giving the benefit of the Act to the
child would not be the date of offence. Thus, it shows the
case of clear conflict between the various decisions
pronounced by the Supreme Court.
It Is humbly mention that the rule of ' prospective

application of the law' provides that the provisions of the
criminal laws are to be applied for the acts done after
commencement of the legislation. In other words, if the act
Is not an offence on the date of commission of that act and
if subsequent amendment or change in law makes such act
punishable offence, then the person who has committed
that act prior to the date of commencement of Act would
411
not be treated as wrongdoer and cannot be punished
accordingly. Thus nothing is wrong which was not wrong on
the date of its commission. As such where change in law is
detrimental to the rights of accused, he cannot be
subjected to it. However, in procedural law, if the change is
beneficial to the accused, then he can be given the benefit
of the changed law. Therefore, looking to this position of
the, the male children who were more than 16 years of age
but below 18 years on the date of commission of an offence
and If the trial comes up before the court, the Court should
give them the benefit of the Juvenile Justice (Care and
Protection of Children) Act, 2000.
Right to Education
Today, education is perhaps the most important function of
State and local governments. It is required In the
performance of our most basic responsibilities. It is the very
foundation of good citizenship. Today it is the principal
instrument in awakening the child to cultural values, in
preparing him for later professional training, and In helping
him to adjust normally to his environment. In these days, it
is doubtful that child may reasonably be expected to
succeed in life if he is denied the opportunity of education^
^ Brown v. Board of Education, cited in Unni Krishnan v. State of A.P. 1993(1) SCO 645
412
The word "life" occurring in Article 2 1 has received a broad
and expansive judicial interpretation. The scope of this
article is wide and far-reaching and is not merely limited to
mean that life cannot be extinguished or tal<en ^way except
in accordance with procedure established by law. That Is
only one aspect of the right to life. In real sense, this right
to life comprises right to live with human dignity. And the
fact remains, that one cannot live with hurnan dignity
without having received proper education. Thus the right to
education was already implicit in Indian Constitution.
However, the same has been made" explicit uhder Article
2 1 A \ which provides for free and compulsory Education to
the children between the age group of 6 to 14.
In case of Sheela Barse V. Children Aid Society and

Otliers^, while dealing with Importance of education,
Hon'ble Supreme Court observed that, "childr-en are the
citizens of the future era. On the proper bringing up of
children and giving them the proper education to turn out
to be good citizens depends the future of the country
Every society must devote all attention to i n s u r e that
children are properly cared for and brought up in a proper
atmosphere where they could receive adequate education.
vide Constitutional Amendment in the year 2002

^ AIR 1987 SC 656
413
training and guidance in order tlnat tliey may be able to
have tlieir riglitful place in the society".
This observation of the Supreme Court fixes duty not only

on the parents, but also on the Legislature and Executive to
carry out the Constitutional mandate. To do so we need to
cut short our expenditure in other unnecessary fields.
The Commissions for Protection of Child

Rights Act, 2 0 0 5
In December 2005, Parliament enacted The Commissions
for Protection of Child Rights Act, 2005. The object of the
Act is to provide for constitution of a National Commission
and State Commissions for protection of child rights and
children's courts for providing speedy trial of offences
against or of violation of child rights. The Act conferred
wide powers upon the Commission to examine and review
the safeguards provided by or under any law for the time
being in force for the protection of child rights and
recommend measures for their effective Implementation.
Another important feature of the Act is that Commission Is
empowered to look into the matters relating to children In
need of special care and protection including children In
distress, marginalized and disadvantaged children, children
in conflict with law, juveniles, children without family and
414
children of prisoners and recommend appropriate remedial
measures. The Commission is duty-bound to promote
research in the field of child rights and to spread child rights
literacy among various sections of t h e society and promote
awareness of the safeguards available for protection of
these rights through publications, the media, seminars and
other available means. The Commission has also been given
power to inquire into the complaints of matters relating to
deprivation and violation of child rights.
However, immediately after passing of the said enactment,

it was felt that there is no adequate representation of
women members in the Commission. At the same time, it
was felt that the said enactment needs several changes.
Therefore in the year 2006 again The Commission for
Protection of Child Rights (Amendment) Bill, 2006 was
moved. The object of the Bill was to secure adequate and
desired representation in the scheme of the Commissions.
Further the Act does not prescribe for any experience to
become member of the Commission. Therefore, the Bill
proposed that the members to be appointed to the
Commission must have, at least, ten years experience in
the prescribed field. Section 17 of the Act empowers the
State Government to constitute State Commissions for
protection of child rights. The word used in the said section
is ' m a y ' which gives discretion to the State Governments
415
which may or may not constitute Commissions. Therefore
the Bill proposed the substitution of the word 'may' with
'shall' so as to make it mandatory for the State
Government to constitute a Commission of protection of
child rights. These, are some of the significant propositions
made in the Amendment Bill to The Commissions for
Protection of Child Rights Act, 2005. Since it is a recent
legislation, the worI<ing and effectiveness of the of the same
is not yet known. But the provisions of this legislation are
very encouraging and It is hoped that this would go a long
way in protection of child rights.
At last it is again reiterated that there have been extensive

provisions in Indian laws to afford protection to the children
from various social evils. But there appears to be some
difficulties on the part of law enforcement agencies in giving
fullest possible effect to those legal provisions. It is
therefore hoped that in the time to come, India will direct
its policies towards betterment and welfare of the children
so as to make this country again shine and glow as it used
to in vedic era.
SUGGESTIONS
It is time to establish in law the obligations to children and
youth to ensure a safe and healthy life. Our hope is in our
children. We have a firm basis in law.
416
Legal support is distinct for certain groups of young people.
Suggestions
1. It is very necessary to ensure strict implementation all
the laws pertaining to child labour. Very recently, the
ban on child labour which has come in to force should
not remain a paper direction.
2. If we look at the existing Child Labour (Prohibition and
Regulation) Act or the Constitutional provisions under
Article 24, we find that child labour per se is n o t
prohibited, but child labour in hazardous employment
is what comes within the legal purview. However, the
need of the hour is to eliminate the child labour
completely. And for this we need the proper
implementation of the laws, review of certain laws and
equal co-operation from the citizens of this country.
For the eradication of this menace as stated above,
legal as well as social co-operation is needed.
For effective implementation and to give pragmatic

effect to the existing law, certain changes are required
to address the problem of child labour. The proposed,
changes are hereunder:-
417
A- Review of t h e existing laws
I t is a crying need to review the adequacy of
existing legislation. In particular, tiie following
aspects should be covered :-
1) Definition of child labour should be widened so
as to include the various forms of bondage,
ii) Objective of the legislation always should be
the total abolition of the child labour,
iii) Compensation for victims of child labour shall
be made mandatory,
Iv) Enforcement machinery and juvenile courts
should strive for quick disposal of pending
matters,
v) Enabling provisions shall be incorporated for
the establishment of permanent separate
special courts exclusively meant for child
labour matters,
vi) Adverse publicity of violators shall be made so
as to have a deterrent effect on such wrong
doers,
vii) Reviewing, streamlining and monitoring the
existing rehabilitation schemes.
B- Proper and effective implementation
For proper and effective implementation of the
existing and prospective legislations, it shall be
endeavour of the State -
418
i) to strengthen the judiciary,
ii) to complement legal machinery with public
awareness campaigns and the dissemination
of information,
Hi) to provide information and training for
targeted groups viz. officials of implementing
authorities, the judiciary, the trade unions and
religious groups,
Iv) to provide appropriate penalties to deter
violations,
v) to conduct research and studies,
vi) to sensitize the laws relating to children.
C. Role of the society

For proper implementation of the laws pertaining
to child labour, the citizens as well as the
government machinery has to play an important
role. The researcher has the following practical
suggestions which can lead to the effective and
efficacious Implementation of the existing laws :-
i) Whenever there is an incident of non-observance
of the law and when It comes to the notice of
any citizen or non-governmental organization,
they should proactively take immediately steps
to pursue the observance of the order and bring
it to the notice of the concerned authorities. The
419
citizens should tal<e instances seriously as a part
of their moral obligation.
11) State machinery should respond and take strict
and immediate actions against the officers who
do not fulfill their duties. I t should be done by
imposing legal penalties as well as collective
social actions against the officers who are found
negligent in performance of their duties in this
context. There should be more delegation o f
powers to the monitoring personnel for effective
observance of the ban.
iii) The social rebuke against the violators of child
labour laws would play an important role in
ensuring effective implementation. For fulfilling
this purpose, the society should be sensitized as
to the magnitude of the child labour problem
with the help of social activists, non-
governmental organizations. The social sanctions
can also play an important role.
iv) If at all a child is found to be employed then it
shall be the responsibility of the employer to
ensure the education of the child. A respective
amendment should be carried out in the relevant
legislation making it mandatory to deduct 10%
salary of the employer which shall be utilized for
the education of the child.
420
3. Right to education
Right to education and child labour can be said to be
the two aspects which are wide apart. As long as child
labour prevails the fundamental right to education
remains futile. Although time and again efforts have
been made to ensure the education of the child even
through the National Education Policies, it still has
remained a distant dream. Each and every scheme
has its own flaws and drawbacl<s. Though the
government has, off late, adopted the free mid-day-
meals scheme as an incentive to draw the children to
the schools, the secondary data found by the
researcher shows that such schemes have been
proved as a failure. In this context, the researcher has
the following suggestions to submit :-
i) Each one, teach one :- There are more

than hundreds of Universities in this
country which produce iacs of graduates
every year. Similarly, we have the number
in millions who are illiterate. Every drop
makes an ocean. On this analogy, if each
literate decides to teach one iiliterate, the
evil of illiteracy can be wiped out from the
Indian soil.
421
ii) Imparting vocational training :- A cliange in
tine existing educational pattern is very
necessary as far as tlie co-relating child
labour is concerned. We can adopt different
modes of educational pattern catering to
the needs of the targeted groups. As the
earlier education policy had Introduced the
night schools thereby enabling the children
to work during day time. Presently there is
a need to change the basic education
pattern. The children from the class who
may be subject of child labour should be
imparted certain vocational training apart
from the basic education. That is they do
not study like the other students till
graduation and then become unemployed
graduates. Instead, the right to education
can be best utilized if they are imparted
training in the nature of carpentry work,
dairy work, agriculture, horticulture,
interior designing, poultry farming, animal
husbandry, computer education etc. The
basic education should be such that after
getting that education, if at a later point of
time they want to pursue higher studies,
that should be eligibility criteria in the open
422
Universities. Tiiis will enable the fulfillment
of dual objective of education as well as
earning while learning and thus supporting
the family,
iii) Special schools : The above said suggestion
can be effectively carried out with the
setting up of special schools catering to the
needs of the children. This will ensure the
elimination of child labour to a large extent
and the fulfillment of the right to education.
What Is condemned is the exploitation of
child labour. Basically, working of the child
under healthy conditions is not objected by
anybody as it can be looked as making the
child independent right from the beginning.
The above suggestion will provide a
dignified way of earning to the child who
otherwise may become a victim of child
labour.
4. Though Section 17 of the Hindu Adoption and

Maintenance Act, 1956 specifically prohibits payment
of consideration for adoption and renders the payment
of such consideration as an offense, still sub section
(3) of the Act, weakens the overall effect of Section
17 by providing that the prosecutions shall not be
423
initiated save without prior sanction of the State
Government or an officer authorized by the State
Government in this behalf. It Is, therefore, submitted
that this provision (subsection 3) must be deleted and
effect of Section 17 should be strengthened.
5, Further it would be expedient to make the registration

of adoption compulsory. It is also advisable to have a
judicial check on the adoptions. For this purpose the
law should be amended to provide that order from the
court of competent jurisdiction shall be obtained
before taking a child in adoption. This would help
eliminate the malpractices by unscrupulous persons
who have made the adoption as a profit making
activity.
6. The present law relating to adoption does not have

provision relating to investigation as to economic
condition of adopting parents. The absence of such
provision is like putting the child again In a difficult
predicament. It is therefore humbly submitted that a
provision should be added to investigate the economic
position of adoptive family. Further, there should be
some mechanism whereby a feedback can be
maintained as to the welfare of the adopted child.
424
7. Legislature should take immediate steps to make and
implement uniform adoption law to protect and
promote the interest of destitute and orphan children.
Most of the legislations pertaining to the welfare of the

children are social legislations and hence need to be treated
in a different way. A different type of attitude from the
people is expected when we talk about the implementation
of these laws. For the implementation, the change in the
mindset of the people is required as certain things are
deeply ingrained with the people which can not be changed
without their wishes. Change is the only certain thing In this
world and it should come from within, voluntarily and
without any force of law. However, it becomes the most
difficult thing when it comes to coping up with the change.
Resistance to change is one of the basic human natures.
The day we see a change in the mindset of the people, that
day can be said to be the golden dawn for humanity.
If a clti[d Cives mifi criticistttj

!He learns to concfemm
If a c/aaC fives luitfi FtostiCity,
fKe kams tofyfit
IfacMUCiveszviifiridicukj
. 4 2 5
!He (earns to shy.
If a chiUCives nntfi sfiame,
He (earns tofedguidy.
If a chid (ives with to(era7ice,
He (earns to Be patient
If a cAUd (earns zuitit encouragement,
He (earns confidence.
If a chi(d (ives witH praise,
He (earns to appreciate.
If a cht(d (ives zmtfifairness.
He (earnsjustice.
If a cfU(d (ives witfi security.
He (earns to fuivefaith.
If adti(d (ives zvith approva(.
He (earns to (i((e himse(f
If a chi(d (ives zvith acceptance and friendship.
He (earns tofind(ove inthe'Wor(d^
^ Nolle Dorothy Law, Children Learn What They Live
426
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323
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11
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696
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379.380,
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lU
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182
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SC2295
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Cal. 6 2 6
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622
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2236
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Eq573
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IV
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2002(5) s e c 4 2 2
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Krishna (1883) 6 Mad. 3 7 3 146
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Labourers Working on Salal Hydro-project V. State 331

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LesUe (R) Ltd. V. Shell, (1914) 3 KB 607 96
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13
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417
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699
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248
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1992(3) SCC 2 0 4
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Pat. L.J. 682
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17 (Ker)
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( 1 9 1 2 ) 3 9 C a l . 232 (PC)
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VI
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456
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1
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3 4 6 5 (Raj.)
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154
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Vll
p
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VIU
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IX
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5
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XI
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XIV

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VN

\ THE POSITION OF CHILD IN LAW

I SUBMITTED FOR THE AWARD OF DEGREE I

PROF. Dr. VIKRAM DESAI

2.0 THE POSITION OF CHILD 28

3.0 THE POSITION OF CHILD 88

3.1.3 Contracts entered into for 102

4.0 THE POSITION OF CHILD 140

6.0 CHILD LABOUR AND LEGAL 271

7.0 SEXUAL ABUSE OF CHILDREN 346

1.2 Significance of Study

1.3 Scope of tine Study

1.4 Objectives of the Study

1.5 Hypothesis of the Study,

1.6 Limitations of the present Study

1.7 Research Methodology Adopted

1.8 Scheme of the Study

1.9 Utility of the Study

^Childhood shows the day

Children are pure, innocent and solemn. They don't think

Here following words of Mamie Gene Cole In respect of child

"J am the child.

Much has been written in respect of child and childhood.

Since the law is said to be the means of social engineering,

The lavy is to cater to the needs of the changing society.

In view of above, it was thought necessary to carry out a

Since the topic has been entitled as 'The Position of Child

Definitions and Terms :Their Inconsistency

For the application of S. 363A of Indian Penal Code (which

DUHAIME'S LAW DICTIONARY defines the Minor as "A

1.3 Scope of the study

National Charter for Children, 2003

Published in Extraordinary Gazette of India

However, amongst all this, it is heartening to note that

We are guilty of many errors and many faults,

The scope of the present research is to examine whether

The present study has the following objectives :-

1. To evaluate the existing provisions under various

1.6 Limitations of tlie present Study

1.8 Scheme of the Study

Chapter-1 The first Chapter deals with 'Introduction' of the

Chapter 2 The Second Chapter discusses the ' Position Of

Chapters 'The Position Of Child Under Civil Laws' is

Chapter 4 In the Fourth Chapter of the Study ^The Position

Chapter 5 The Fifth Chapter of the Study deals with ^The

Chapters The Sixth Chapter deals with ^ Child Labour And

Chapter 7 The Seventh Chapter of the Study examines

Chapter 8 The 8*^ Chapter of the Study contains

1.9 Utility of the Study

The above observation of the Hon'ble Supreme Court of

The present research postulates the key-role that has been

^ Gaurav Jain v. UOI, 1997(8) SCC 114

It is humbly submitted that the present research study

THE POSITION OF CHILD UNDER

2.2 Guardianship and Custody

2.4 Child Marriage

THE POSITION OF CHILD UNDER

The child occupies an important position in almost all

Thus the category ' c ' above is residuary category. It