Child

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Introduction
A precise understanding of who is a “child” is foundational across Indian law: criminal liability, protective welfare measures, family disputes, education, labour regulation and inheritance all turn on age. Unlike a single universal definition, Indian law adopts multiple, context-specific definitions calibrated to policy goals—protection, rehabilitation, capacity and consent. Mastery of these statutory definitions, evidentiary standards for proving age, and the procedural routes (Juvenile Justice Boards, child welfare committees, family courts, POCSO courts) is essential for effective litigation and client counselling.

Core Legal Framework
– Juvenile Justice (Care and Protection of Children) Act, 2015
– Definition: Section 2(12) — “child” means a person who has not completed eighteen years of age.
– Consequence: governs children in conflict with law and children in need of care and protection; prescribes Juvenile Justice Boards and Child Welfare Committees.

  • Protection of Children from Sexual Offences Act, 2012 (POCSO)
  • Definition: Section 2(d) — “child” means any person below eighteen years of age.

  • Consequence: strict liability offences, mandatory reporting, child-friendly procedures and trial in a special court.

  • Indian Majority Act, 1875

  • Section 3 — prescribes that a person domiciled in India attains majority on completion of eighteen years of age (subject to limited exceptions).

  • Consequence: determines contractual capacity, guardianship, competence to sue and marry (in some contexts).

  • Prohibition of Child Marriage Act, 2006 (PCMA)

  • Definition: Section 2(a) — “child” means a male who has not completed twenty-one years of age and a female who has not completed eighteen years of age.

  • Consequence: civil remedies (annulment/voidability), offences for coercion/abetment, and special provisions for relief and maintenance.

  • Indian Penal Code, 1860

  • Section 82 — “Act of a child under seven years of age” (incapacity to commit an offence).
  • Section 83 — deals with persons of unsound mind (distinct but relevant to capacity).

  • Consequence: limited criminal responsibility thresholds; where statutory juvenility applies, offender handling shifts to JJ framework.

  • Right of Children to Free and Compulsory Education Act, 2009 (RTE)

  • Definition for schooling policy: Section 2(d) — often operationally treats a “child” in the 6–14 age bracket for elementary education entitlements.

  • Child Labour (Prohibition & Regulation) regime (1986 Act and subsequent amendments)

  • Policy definition: the Act and subsequent amendments distinguish “child” (generally under 14) and “adolescent” (14–18); legislative changes post‑2016 strengthened prohibition on employment of children below 14 and regulated adolescents’ employment.
  • Consequence: occupations prohibited, rehabilitation obligations, penal provisions.

Practical Application and Nuances
1. Multiple, context-specific ages — litigate to the forum you need
– The “age” that matters depends on the legal issue:
– Criminal/juvenile justice & POCSO: under 18 is a child.
– Child marriage law: female < 18 and male < 21.
– Majority/contract: completion of 18 years.
– Child labour: under 14 (with protective regulation for 14–18).
– Practical consequence: the same person can be a “child” under POCSO (17 years) but not be a “child” for marriage law if a male has turned 21.

  1. Age determination — evidence, admissibility, and court approach
  2. Primary documentary evidence (best): certified birth certificate, school records (admission + annual progress reports), vaccination/birth-register entries, Anganwadi records, Aadhaar (not conclusive but persuasive), passport.
  3. Secondary / medical evidence: radiological ossification (wrist, clavicle), dental age (orthopantomogram), skeletal maturity tests. Strengths: useful where documents absent; limitations: ranges of error, ethnic and nutritional heterogeneity, and medico-legal experts give ranges not exact dates.
  4. Court practice: courts prefer documentary evidence. Where documents are unreliable or absent, courts admit medical age estimation but treat it with caution and allow cross-examination of the medical expert. Wherever possible, courts triangulate multiple entries (school + vaccination + community register) and treat single uncorroborated documents with skepticism.
  5. Burden of proof: No uniform rule in all contexts. Practically:
    • In criminal prosecutions under POCSO/JJ Act, prosecution must establish elements of offence; age is often a material fact and courts expect objective proof of victim/accused’s age.
    • When accused asserts juvenile status, courts usually direct production of school/birth certificates or medical tests; benefit of reasonable doubt on age often goes in favour of the accused (principle of liberal protective approach for children).

  6. Procedure in practice: File applications for age determination early; move for production of official records; seek court-ordered medical examination only if documentary evidence is absent or contested.

  7. Children in conflict with law: juvenile vs adult treatment

  8. JJ Act 2015 framework: persons below 18 are juveniles; proceedings are before Juvenile Justice Board (JJB). For heinous offences committed by a child aged 16–18, JJB must conduct a preliminary assessment (of mental and physical capacity, ability to understand consequences) before determining whether to try as an adult; if so, they are tried by regular criminal court subject to the process mandated.

  9. Practice tip: Seek early assessment reports, involve social workers, produce schooling and family background to argue for welfare-oriented measures and rehabilitation rather than transfer for adult trial.

  10. POCSO and special procedural protections

  11. Mandatory reporting, child-friendly recording of testimony, in-camera proceedings, and special courts. Age determines jurisdiction and offence classification (consent is not a defence for persons under 18).

  12. Practical counsel: Ensure compliance with mandatory reporting; preserve child-friendly procedure violations as ground for appeal/nullification of evidence.

  13. Family law and guardianship: “best interest of the child”

  14. In custody, guardianship and adoption disputes, courts place paramountcy on the child’s welfare and developmental needs rather than rigid age categories. Age is relevant for custody determination and maturity-based exceptions (e.g., preference for older child’s choice in custody disputes).

  15. Practical tool: Use school, medical and psychological assessments to show child’s needs and maturity.

  16. Marriage law interactions

  17. Given the differing age definitions, court will treat marriage between minors as voidable/void under PCMA and provide relief — the married minor can seek annulment, maintenance, custody, and protection (PCMA offences) irrespective of social recognition.
  18. Independent Thought v. Union of India (2017) (see below) tightened protection for minor wives, with substantive impact on consent and marital exceptions.

Landmark Judgments
– Independent Thought v. Union of India, (2017) 10 SCC 800
– Principle: The Supreme Court struck down Exception 2 to Exception (a) of Section 375 IPC insofar as it allowed sexual intercourse by a man with his wife, even if she is below 15 (now read in light of 18 under POCSO). The Court emphasized that marital status cannot be a defence to sexual intercourse with a minor and stressed child-centric protective norms.
– Practical import: Heightened protection for girl children; statutory and constitutional rights of children to protection override marital customs.

  • Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
  • Principle: The Court read fundamental rights (Articles 21 and 23) to require state action against bonded labour, including children; established that socio-economic rights of children attract constitutional protection and proactive state measures.

  • Practical import: Influences rehabilitation, government obligations in cases of child labour and trafficking.

  • Gaurav Jain v. Union of India (Bachpan Bachao Andolan matters), (1997) 8 SCC 114

  • Principle: The Supreme Court issued directives for rehabilitation and education of rescued child labourers and street children; recognized right to education and state duty for in situ rehabilitation.
  • Practical import: Strengthens remedies and reliefs available to child victims and emphasizes non-punitive, welfare-oriented remedies.

Strategic Considerations for Practitioners
1. Always assemble a layered evidentiary strategy for age
– Start with documentary anchors (birth certificate, school records, hospital records). If absent, procure municipal records and affidavits supported by community leaders.
– If medical tests are necessary, instruct experts early, request contemporaneous reports, and prepare to cross-examine limitations and error margins.

  1. Choose the forum and cause of action wisely
  2. If child status opens a welfare route (JJB, CWC, adoption, maintenance under PCMA), pursue those forums aggressively—these processes yield protective relief and rehabilitation rather than punitive outcomes.

  3. Conversely, where a client’s interest is to avoid juvenile treatment (e.g., victim who is 17 and accused in disciplinary proceedings), be prepared to challenge remedial measures or invoke adult jurisdiction carefully.

  4. Use procedural reliefs available for children

  5. In criminal matters under POCSO: insist on child-friendly procedures, seek in-camera proceedings, court-appointed counsel/social workers and avoid unnecessary confrontation in court.

  6. For children in conflict with law: apply for bail before the JJB, produce rehabilitation plans, school enrolment proof, and seek diversion wherever appropriate.

  7. Beware of common pitfalls

  8. Relying solely on medical evidence without documentary support — courts will discount isolated radiological estimates.
  9. Treating “minor” and “child” as interchangeable without reference to the relevant statute — leads to wrong forum or ineffective remedies.

  10. Failing to invoke mandatory reporting or protective procedures under POCSO/JJ Act — non-compliance can vitiate proceedings and attract penalties.

  11. Documentation and client counselling

  12. Advise clients—parents, guardians, institutions—to maintain birth and school records rigorously (birth registration, admission registers, transfer certificates).
  13. In cross-border or undocumented births, secure affidavits plus corroborative community records and early medical records.

Conclusion
The legal identity of a “child” in India is context-sensitive: different statutes draw the line at 14, 18 or 21 depending on whether the law seeks protection, capacity, or prohibition. Practitioners must (a) identify which statutory definition controls the dispute, (b) assemble multi-layered documentary and, if needed, medical evidence to establish age, (c) use the statutory machinery (JJB, CWC, POCSO courts, family courts) suited to the child’s best interest, and (d) deploy welfare-oriented arguments while guarding procedural technicalities. Mastery of both the statutory mosaic and practical evidentiary strategies will determine success in litigating issues where age—and hence the status of “child”—is the pivotal fact.