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 Hon’ble Supreme Court in Sheela Burse v. U.O.I and others had declared that child is a national asset.
The word ‘child’ has not been defined either in the constitution or in the General Clauses Act. Although the word cannot be said to be identical with the word ‘minor’.
1. Children under Constitution of India
The articles under the Constitution of India stipulate that the tender age of children should not be abused and they should be provided with opportunities of development in a healthy manner and in conditions of freedom and dignity.
• Article 15 (3) : Enables the state to make special legislation for woman and children.
This article simply extends the doctrine of equality as enshrined in Article 14. This clause is an exception to the rule against discrimination provided by clause (1) & (2) of article 15.
• Article 21 : This article guarantees the right to life and personal liberty.
Case Law : Unni Krishnan v. State of Andhra Pradesh
In this case, the right to education has been held to be implicit in the right to life as enshrined in Article 21 of the constitution of India
• Article 23 : This article prohibits traffic in human beings and beggar and other similar forms of forced labour.
In this article slavery is not expressly mentioned but inclusive under the expression ‘traffic in human beings’. Also means traffic in women and children.
• Article 24 : Prohibits employment of children in factory, mines, or engagement in any other hazardous employment.
• Article 39(c) & (f) : This article enacts certain provisions with regards to the welfare of children.
• Article 45 : It provides for free and compulsory education for all children until they complete the age of 14 years.
• Article 51A (k) : This article imposes a fundamental duty upon every parent / guardian to provide opportunities for education to his child or as the case maybe ward between the age of 6 and 14 years.
2. Children under Criminal Procedure Code (CR.PC)
• Maintenance under Section 125 The expression ‘Maintenance’ would obviously include provision for food, clothing, residence, education of children and medical attendance or treatment.
There is no doubt that the parents are under an obligation to maintain their minor children. This is a moral liability apart from a statutory liability. It is a statutory liability on account of section 20 of the Hindu Adoptions and Maintenance Act, 1956.
This section provides maintenance to wife, children and parents. When it comes to maintenance of children of Hindu parents there is provisions for the same also for legitimate children the law provides maintenance but in the below mentioned cases the courts have clarified whether they are entitled to maintenance or not.
▪ In case of Illegitimate Children
Case : Savitaben Somabhai Bhatiya v. State of Gujarat & Others AIR 2005 SC 1809
The Supreme Court held that wherein a woman was not lawfully married she is not entitled to maintenance but illegitimate child is entitled to get maintenance. The court observed that the legislature considered it necessary to include within the scope of the provision an illegitimate child.
▪︎ Children of Muslim Parents
Case : Noor Saba Khatoon v. Mohd. Quasim 1997 (6) Supreme 523
The Supreme Court held that the children of Muslim parents are entitled to maintenance under section 125 of Cr.PC. It was observed that the right of such children are not disturbed by section 3(1) (b) of the Muslim Women (Protection on Rights of Divorce) Act, 1986.
3. Children under Indian Penal Code (IPC)
• Infancy - (Section 82 & 83) : Child below the age of 7 years is totally exempted from criminal liability. Criminal liability of a child between the age of 8 to 12 years is subject to proof of mens rea.
Section 82 provides complete exemption to a child below the age of 7 years. Infancy is a defect of the understanding and infants under the age of discretion ought not to be prosecuted under any criminal prosecution.
4. Children under Indian Contract Act
• Contractual Capacity of Minor
▪︎ Section 11 – According to section 11 of this act a minor is not competent to contract. Generally agreement of minors is voidable and not void in India.
▪︎ Principle of Estoppel - It is well settled that principle of estoppel cannot apply against the minor to prevent him from raising a plea against infancy.
▪︎ Doctrine of Restitution – A minor can restore his property or goods by misrepresenting his age provided that it is traceable in the possession of the minor.
However, if it is not traceable or has been sold or converted to his own use by the minor, he cannot be held liable to repay the value of it because it would amount to the enforcement of a void agreement.
• Children not Liable under Tort Arising out of Contract
Case : Johnson v. Pye (1665) 1 Sid. 258 : 82 E.R 1091
It was held in this case that a minor could not be sued in tort for deceit when the loan has been obtained by him by misrepresenting age as else all the infants would be ruined. A contract cannot be converted into tort for suing a minor.
5. The Juvenile Justice (Care and Protection of Children) Act, 2000
This act aims to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection by providing care, protection and treatment. Ultimately it aims to rehabilitate through various institutions established under this act by adopting a child friendly approach and catering their development needs.
This act also provides for the constitution of children home established under section 34 , shelter homes established under section 37 and special homes under section 9 for the care and protection of children.
• Section 23 – This section makes provision for punishment for cruelty to juvenile. It punishes a person who assaults, abandons, exposes or wilfully neglects the juvenile or causes mental or physical suffering to such juvenile.
• Section 29 – It makes provisions for the constitution of the Child Welfare Committee. Such Committee shall provide for basic needs and Protection of human rights of the children.
• Section 40 – It deals with rehabilitation and social Integration of children through adoption, foster care, sponsorship and sending the child to an after care organization.
6. The Child Labour (Prohibition and Regulation) Act, 1986
• Section 3 – This section prohibits the employment of children in certain occupations as provided under Part A and B of the schedule.
• The Match Industry in the State of Tamil Nadu
Case : M.C Mehta v. State of Tamil Nadu AIR 1997 SC 699
A case was filed in relation to the employment of children in matchstick factory. The children were directly involved in the manufacturing process of matchsticks and fireworks creating a hazard for children that were employed.
The Supreme court held that children could be employed only in the process of packing and such packing has to be carried out in an area far from the manufacturing process. Also the offending employer was directed to pay compensation of ₹20,000 for every child employed in prohibited employment.
• The Carpet Industry in the State of Uttar Pradesh
Case : Bandhua Mukti Morcha v. U.O.I and others AIR 1997 SC 2218
The employment of children was challenged under being violative of Article 24 of Indian Constitution.
The court observed that it is the duty of the state to provide facilities and opportunities to children driven to child labour, to develop their personality and to eradicate child labour. Ban should be imposed regarding intolerable activities like slavery, bonded labour, trafficking, prostitution, pornography.
• Section 7 – It deals with definite hours of work. No child is allowed to work for more than 3 hours at a stretch and not more than 6 hours at a stretch.
• According to section 7(4) , no child shall be allowed to work between 7 p.m. and 8 a.m. Thus a child shall not be permitted to work at night.
• Section 7(5) & 7(6) – According to this section no child shall work overtime in any establishment.
• Section 13 – It deals with the health and safety measures of the child employed in occupations or in processes.
• Recently in 2016, The Child Labour Amendment Act, 2016 came into force in order to amend certain provisions of the above act.
7. The Child Marriage Restraint Act, 1929
As per this act a minor is a person who has not attained 18 years of age
• Section 3 – According to this section it punishes a male who is above 18 years but below 21 years of age and contacts a child marriage.
• Section 4 – According to this section it punishes a male who is above 21 years of age and contacts child marriage.
Case : William Rebello v. Jose Angelo Vas AIR (1996) Bombay. 204
The Bombay High Court had held in this case that the marriage performed in contravention of this act is not an invalid marriage but the marriage performed in violation of this act is unlawful marriage.
• Section 6(1) – This section punishes the parent or guardian whether lawful or unlawful who contracted the child marriage and is in charge of such child. However there is a legal presumption wherein the court can presume that the person in charge of the minor negligently failed to prevent such marriage unless contrary is proved as per section 6(2) of this act.
8. The Hindu Adoption and Maintenance Act, 1956
After the passing of this act sons and daughters are treated equally in the matter of Succession. This act also provides for adoption. According to this act a woman can also adopt for herself in her own right.
▪︎ Section 7 and 9 of this act provides the requisites for a male Hindu and a female Hindu respectively to adopt a child.
▪︎ There is provisions for an abandoned child which is deemed to be in guardianship of the Juvenile Justice Board.
▪︎ It also restricts the adoptive father and mother to cancel any adoption which was validly made nor can the adopted child renounce his or her status as such and return to the family of his or her birth.
▪︎ Section 20(2) & 20(3) - These sections allows daughters to claim maintenance whether legitimate or illegitimate but the section specifies that the obligation to maintain the daughter is only when she is unable to maintain herself and is unmarried or if she becomes a widow.
9. The Young Persons Harmful Publications Act, 1956
This act intends to prevent the dissemination of certain publications harmful for to young persons.
This act basically focuses on the publications which are considered obscene and to penalize for sale of such publications which can stir sexual impulses and can lead to sexual and impure thoughts which tends to corrupt the minds of the youth.
Under Section 4 of this act it gives the State government the power to declare harmful publications as fortified and under Section 6(1) the power to a police officer to destroy the same.
10. The Prohibition of Child Marriage Act, 2006
This act came into force to restrain the solemnisation of Child marriages through an act called The Child Marriage Restraint Act, 1929. However amended 2 times in 1949 and 1978 to raise the age limit of males and females for the purpose of marriage.
Though this act restrains the act of child marriage and punishes the offender however it does not declare them to be void or invalid.
▪︎ Under this act such Child marriages can be declared to be void only at the option of the contracting parties.
▪︎ But in certain circumstances the court can declare the child marriage as void.
▪︎ It also makes provisions for custody and Maintenance of children born out of such child marriages.
▪︎ It also punishes a male adult who marries a child with rigorous imprisonment.
11. The Commission for Protection of Child Rights Act, 2005
On the outset of the constitutional provisions and international commitment, the Central Government formulated the legislative scheme accordingly through the parliamentary system and decided to set up the National Commission for Protection of Child Rights for better protection of their rights.
Article 13 of this act that the Commission shall perform the following functions namely – to examine the measures taken under any law for protection of child rights, power to conduct enquiry, presentation of reports to central government upon the working of those safeguards, undertake research, recommend appropriate measures, etc.
12. The Protection of Children from Sexual Offences Act, 2012 (POSCO)
This is a special law to protect all children and is gender neutral. As this act also recognizes sexual violence against boys. The POSCO Act comes into picture when acts of sexual violence or rape of minors are committed against them.
This act provides protection to children under the age of 18 years from sexual abuse. It also intends to protect the children through all stages of judicial process and gives paramount interest to the concept of ‘Best Interest of the Child'.
• Section 3 – 10 – These sections recognizes and expands the definition of sexual assault to include non penetrative sexual assault. It also punishes persons in positions of trust and authority.
• Section 11 & 12 – These sections recognizes sexual harassment against children, stalking and involves touch and exposing them inappropriately.
• Section 13 – 15 : Punishes a person to expose children to child pornography.
13. Children under International Laws and Conventions
• Convention On The Rights of the Child
This Convention applies to all state parties and shall respect and ensure that the rights set forth in this Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s / his or her parents / legal guardian’s, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
This Convention also calls for the state parties to take appropriate measures to ensure that the child is protected against all forms of discrimination of punishment on the basis of the status, activities, expressed opinion or beliefs of the child’s parents, legal guardians or family members.
This Convention discusses and ensures the right to life and development of child, the rights to name and nationality, prevention of child’s identity, combating illicit transfer of child abroad. Also the child shall have freedom of expression and right to information amongst other rights.
• Declaration Of The Rights of the Child
This declaration allows a child to enjoy all the rights without any distinction or discrimination. In enacting such laws the best interests of the child shall be of paramount importance.
It also ensures in its principles that the child shall enjoy special protection and shall be given opportunities and facilities by law and by other means so as to enable the child to develop mentally, physically, morally, spiritually and socially in a normal manner and in conditions of freedom and dignity.
This declaration also specifies about children who are physically, mentally or socially handicapped shall be given the special treatment, education and care required as per his or her particular condition. Also in all circumstances the child should be among the first to receive protection and relief.
• Child United Nations Standard Minimum Rules For the Administration of Juvenile Justice
• It is called as the ‘Beijing Rules’, these rules carves out the definition of Juvenile also the aims that the Juvenile Justice system shall emphasize at the well being of the juvenile.
• It also aims to protect the right to privacy of the Juvenile in order to avoid any harm being caused due to undue publicity. Other than this, such Juveniles shall get all the rights such as the right to counsel, right to cross examine, right to remain silent, etc. During the stages of proceedings.
• Police Officers should be trained who deal expressly in handling juveniles and special police units should be established for this purpose.
• International Labour Organization (ILO)
This International organization has been instrumental in eradication of child labour and to safeguard child from industrial exploitation. Till now 18 Conventions and 16 recommendations have been adopted by the International Labour Organization (ILO) in the interest of working children all over the world.
In a civilized society the importance of child welfare cannot be over emphasized because the welfare of the entire community, its growth and development depends on the health and well being of the children.
It is also true that the state of children is not as rosy as painted. In India, child exploitation and neglect is a result of social environment, broken families, poverty, lack of proper care, love and attention, ignorance of family planning. A child is considered as a national asset and future of a nation and the future well being depends on how children grow and develop.
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