Law Relating To Child

NOTES ON
LAW
RELATING TO
CHILD
General Elective Course in Law
CALICUT UNIVERSITY
By
NIHAL KOTTALATH
HISTORICAL DEVELOPMENT OF SPECIAL TREATMENT OF CHILDREN
In the earlier times children were considered as small adults and the idea of special rights to children
was unheard of. It was in the 1840s that the idea of special protection to children emerged in France. Laws
were enacted in France since 1841 to protect children in their workplace and to grant them the right to be
educated. It was only after the 1stWorld War that the world began to recognize the need for special rights to
children. On 28 February 1924, the International Save the Children Union ratified the Declaration of the Rights
of the Child during its fifth general assembly. This document was sent to the League of Nations, which adopted
„Geneva Declaration‟ on 26 September 1924, proclaiming that “Humanity has to do its best for the child”.
(The League of Nations later became the United Nations). The document, in five chapters, discussed the well-
being of children and recognized their right to development, assistance, relief and protection and
responsibilities of adults.
The Geneva Declaration is a historic document that recognized and affirmed for the first time the
existence of rights specific to children and the responsibility of adults towards children. The first international
Human Rights document in history to specifically address children’s rights is the „Geneva Declaration‟, which
is based on the work of Polish physician Janusz Korczak.
Important Landmarks in the Evolution of Child Rights

No. Landmarks in the Evolution of Child Rights Year
1 Laws were enacted in France since 1841 to protect children in their 1841
workplace and to grant them the right to be educated
2 The first piece of law in India which made a modest attempt to cater to 1850
the special needs of children within the criminal justice apparatus was the
Apprentice Act of 1850.
3 The Reformatories Schools Act, 1897 separated, for the first time in India, 1897
children from adults in the criminal justice system.
4 Following the recommendations of the Indian Jails Committee 1919-1920, 1920
the Madras Children Act 1920 was introduced.
5 The International Save the Children Union ratified the Declaration of the 1924
Rights of the Child during its fifth general assembly on 28 February 1924.
6 The League of Nations, which adopted „Geneva Declaration‟ on 26 1924
September 1924, proclaiming that “Humanity has to do its best for the
child”. (The League of Nations later became the United Nations).
7 The Child Marriage Restraint Act, 1929. (It was amended in 1978). 1929
8 The United Nations created a special fund called the „UN Fund for Urgency 1947
for the Children‟. This later became the UNICEF.
9 UNICEF began its work in India. 1949
10 The UNICEF was granted the status of a permanent international 1953
organization.
11 The United Nations General Assembly adopted the Declaration of the 1959
Rights of the Child (DRC).
NIHAL KOTTALATH | Law Relating to Child

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12 The Government of India enacted the Children’s Act 1960‟, which was 1960
applicable in Union Territories.
13 India formulated its first „National Policy for Children (NPC)‟ 1974
14 The year 1979 is declared as „International Year of the Child‟ by the UN. 1979
15 The Juvenile Justice Act, enacted in 1986, was the first juvenile law in India 1986
which was uniformly applicable across the country.
16 The Child Labour (Prohibition and Regulation) Act, 1986. 1986
17 The United Nations Convention on Child Rights (UNCRC) was unanimously 1989
adopted by the UN General Assembly on 20th November 1989.
18 At the World Summit for Children in 1990, India adopted the World 1990
Declaration for Survival, Protection and Development of children. 1990
19 India ratified the UNCRC on 11thDecember, 1992. 1992
20 National Human Rights Commission, which is an autonomous statutory 1993
body, was established on 12th October, 1993, under the provisions of The
Protection of Human Rights Act, 1993.
21 The Government of India enacted the „Pre-Conception and Pre-natal 1994
Diagnostic Technique (Prohibition of Sex Selection) Act, 1994‟.
22 The Child Rights Information Network (CRIN) is launched by UNICEF, 1995
linking UN agencies, academic institutions and NGOs to gather
information on child rights activities globally.
23 The Government of India submitted its first Country Report on the 1997
Convention of the Rights of the Child in February 1997.
24 In order to comply with the provisions of UNCRC, the Juvenile Justice Act 2000
1986 was amended and reenacted as the Juvenile Justice (Care and
Protection of Children) Act in 2000.
25 The Government of India appointed an Expert Committee under the 2000
chairmanship on Justice V R Krishna Iyer for drafting the „National
Commission for Children Bill 2000‟
26 The Supreme Court of India banned corporal punishment for children on 2000
December 1, 2000.
27 In May 2000, the optional protocol to the International Charter of the 2000
Child Rights regarding the participation of children in armed conflicts is
ratified. It entered into force in 2002. This text prohibits minors taking part
in armed conflicts.
28 The „National Charter for Children-2003‟ was adopted and notified in the 2004
Gazette of India on 9th February, 2004.
29 In early 2006 the Department of Women and Child Development became 2006
a full-fledged Ministry and child protection matters were transferred to
this new Ministry.
30 The J J Act was further amended in 2006 as the Juvenile Justice (Care and 2006
Protection of Children) Amendment Act, 2006 and in 2011.
31 Government enacted the „Commissions for Protection of Child Rights Act, 2006
2005‟, which was notified in the Gazette of India on 20th January, 2006.
32 National Commission for Protection of Child Rights (NCPCR) was 2006
constituted on 31st July, 2006.
33 To overcome the shortcomings of Child Marriage Restraint Act, the 2007
Government of India enacted the Prohibition of Child Marriages Act, 2006
(PCMA), which came into effect from 1stNovember, 2007.

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34 Integrated Child Protection Scheme (ICPS) was launched by the Ministry 2009
of Women and Child Development, Government of India on 26thFebruary,
2009.
35 The Right of Children to Free and Compulsory Education (RTE) Act, 2009, 2010
came into force with effect from 1st April, 2010.
36 Guidelines governing adoption of Children in India were formulated in 2011

2011.
37 The Protection of Children from Sexual Offences Act, 2012. 2012
38 The Union Cabinet of India on 18thApril, 2013 approved the National 2013
Policy for Children, 2012.
39 The Union Government introduced proposals for the amendment of the 2014
Juvenile Justice Act.
CONCEPT OF CHILDHOOD
Children are defined in the CRC as all those below the age of 18 years. Childhood refers to much more
than just the space between birth and adulthood. It is recognized in the Universal Declaration of Human Rights
(1948) as a period where one is entitled to special care and assistance. Childhood is the time for children to be
in school and at play and to grow strong and confident with the love and encouragement of their family and
an extended community of caring adults. It is a precious time in which children should live free from fear and
protected from violence, abuse and exploitation.
Similarly, adolescents up to 18 years old are also holders of all the rights enshrined in the CRC. They are
entitled to special protection measures and, according to their evolving capacities, can progressively exercise
their rights. Investing in adolescent development is imperative to fully realize the rights of all children.
INTERNATIONAL CONCERN FOR CHILD
The earliest concern of any world body for the protection of children was of the International Labour
Organization. Some of the earliest ILO regulations protecting the interest of the children are:
(a) Prohibition of industrial exploitation / fixing working age

In one of the earliest Convention in 1919 ILO prescribed minimum age of employment in any in-
dustrial undertakings to be fourteen years. Exceptions to this prescription, as provided in the Convention were
only two

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(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.
In the same year ILO legislated upon another Convention, prohibiting children and young persons
below the age of 18 to be employed during the night shift. In 1920 ILO has also prescribed minimum age for
admission of children to employment at sea. In 1921, however, ILO prescribed the minimum age for agricul-
tural activities prescribing that children under the age of fourteen years may not be employed or work in any
public or private agriculture undertakings. In between 1926 to 1948 a lot of things did happen in the World
History including the first nuclear war. But ILO's work in this area continued consistently throughout with the
legislation of six more conventions and two Recommendations. All these Conventions were primarily con-
cerned with minimum age fixation for employment, prohibition of employment in the night shift and medical
examinations. Besides within the same time Convention of 1920 on Minimum Age for Admission of Children
to Employment at Sea, was amended.
(b) Human rights for children
Early in 1926 the Assembly of League of Nations adopted a Declaration on the right of children.
This Declaration is known as Geneva Declaration on the Right of the Child which sets the temper of the
International policy on the right of the child. In 1948, however, General Assembly of UNO adopted and pro-
claimed a Code commonly known as Universal Declaration of Human Rights which called on members- states
to pledge themselves to achieve, inter alia, and promote 'special
Protective care and assistance to children. Subsequently the Social Commission in 1950 adopted a draft of
'Declaration on the Rights of the Child' on the lines of Geneva Declaration and forwarded the same to
ECOSOC with recommendations that the opinion of the Commission on Human Rights be taken on the draft
by the ECOSOC. ECOSOC got the opinion of the Commission and finally revised the Draft and sent it to the
General Assembly in 1959. The General Assembly adopted and proclaimed the Declaration of the Right to
the Child on 2011 November, 1959
This Declaration contains the International policy of the UNO on the growth and development of
children and the connected responsibilities and it contains 10 Articles known as ten principles adopting 10
values of human right as internationally accepted policy norms and guidelines. Those principles are:
PRINCIPLE 1 : right against discrimination in the enjoyment of rights prescribed in the Declaration;
PRINCIPLE 2 : right to facilities and opportunities for development, physically, mentally, morally, spiritually
and socially;
PRINCIPLE 3 : right to social endurance by birth

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PRINCIPLE 4 : right to social security for protective care and basic needs;
PRINCIPLE 5 : right to special treatment and education for physically and mentally retarded children;
PRINCIPLE 6 : right to full and harmonious treatment and development in loving care of responsive parents
and in the absence of the State;
PRINCIPLE 7 : right to free compulsory primary education in furtherence of general culture and ability to
become a responsive citizen of tomorrow
PRINCIPLE 8 : right to protection and relief;
PRINCIPLE 9 : right to protection against neglect, cruelty and exploitation; and
PRINCIPLE 10: right to protection against racial, religious and other form of discrimination.
the General Assembly constituted and established the United Nations International Children's Emer-
gency Fund (UNICER in 1946.12 The fund was to be utilized for the benefit of children and adolescents of
countries which 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.
The basic function of UNICEF is to help the Governments of developing countries to improve the
quality of life of their children.
UNICEF assists programmes for children in more than 100 countries in Africa, the America, Asia
and the Eastern Mediterranean, with a combined population which includes approximately 960 million chil-
dren.
NATIONAL CONCERN ABOUT THE CHILD
The discussion on the international attempts for the protection of the rights of the child brings
about the question of application of the principles in the municipal sphere, especially when India is a party
to the international resolve to protect the rights of the child.
(i) Constitutional Protection

Fundamental Rights
The judicial interpretation of part III of the Constitution paved way to the assurance of protection of rights
of children.
 Article 14 guarantees equality before law and equal protection of law to all persons within the territory
of India.
 Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, class, and place of birth
or any of them.

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 Article 15(3) empowers the State to make special provisions for children as and when it is necessary for
the well being of children.
 The right to life in Article 21 encompasses all sections of the society including women and children. And
this right to live with human dignity is available to a child also. In Vikram Deo Singh Tomar v. State of
Bihar, the Supreme Court has taken note of the pitiable conditions prevailing in care homes maintained
by the State of Bihar for women and children and has directed the State to improve matters in these
homes and provide at least the minimum living conditions ensuring human dignity The court empha-
sised that India is a welfare state and the protection in the Constitution of India lays special emphasis
on the protection of the weaker sections of the society including women and children
 Article 21A makes the State duty bound to provide free and compulsory education to all children below
the age of fourteen years, incorporating the dictum delivered by the apex judiciary in
Unnikrishnan v. State of A.P
 Article 23 speaks of the prohibition of all forms of traffic in human beings and beggar and other forms
of forced labour.
 Article 24 specifically prohibits employment of children below the age of 14 years in any factory, mine
or in any other hazardous employment.
Directive Principles of State Policy

 Article 39(a), (e) and (f) specifically provide certain policies to be followed by the State for the welfare
of the children. Article 39(f) provides that children are given opportunities and facilities to develop in a
healthy manner and in condition of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.
 Article 41 asserts the responsibility of the State to make effective provisions for securing the right to
education and to public assistance in cases of. …sickness and disablement and in other cases of unde-
served want, within the limits of its economic capacity and development.
 Article 45 in explicit terms directs the State to endeavour to provide free and compulsory education for
all children until they complete the age of 14 years, within a period of 10 years from the commencement
of the constitution.
 Article 46 stands for the promotion of the educational and economical interests of the weaker sections
of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes and for their protec-
tion from social injustice and all forms of exploitation.
 Article 47 castes upon the State the duty to raise the level of nutrition and the standard of living and to
improve public health.

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Writ Jurisdiction & Directive Principles
The Supreme Court of India in Mohini Jain v. State of Karnataka has incorporated the directive
principle in Article 45 into Article 21 so that writ jurisdiction can be invoked for the enforcement of the same.
It was held that the ‘right to education’ being concomitant to the fundamental right to life, the State is under
a constitutional mandate to provide educational institutions at all levels for the benefit of the children. Again
in the famous case of Unnikrishnan, the apex court reiterated the same right; but limited the liability of state
obligation in Article 45 incorporated by judicial interpretation into Article 21, towards every citizen until he
completes the age of 14 years and beyond that stage, the state obligation to provide education is subject to
the limits of the economic capacity and development of the state.
The National Policy for Children

For furthering the objects laid down in the Constitution and also keeping the needs of the children in mind,
the Government of India came out in the year 1974 with a National Policy for Children aimed at the welfare of the
children. The policy was formulated on the understanding that ‘the nation’s children are a supremely important asset.
The multifarious developments and changes occurred after 1974 made it inevitable to restructure the governmental
policies, which in turn gave birth to the Draft National Policy and Charter for Children 2001 and the later National
Policy for Children 2003.
CONVENTION ON THE RIGHTS OF THE CHILD
In 1989 something incredible happened. Against the backdrop of a changing world order world leaders
came together and made a historic commitment to the world’s children. They made a promise to every child
to protect and fulfil their rights, by adopting an international legal framework – the United Nations Convention
on the Rights of the Child.
Contained in this treaty is a profound idea:
That children are not just objects who belong to their parents and for whom decisions are made, or
adults in training. Rather, they are human beings and individuals with their own rights. The Convention says
childhood is separate from adulthood, and lasts until 18; it is a special, protected time, in which children must
be allowed to grow, learn, play, develop and flourish with dignity. The Convention went on to become the
most widely ratified human rights treaty in history and has helped transform children’s lives.

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What has the Convention achieved?
The Convention is the most widely ratified human rights treaty in history. It has inspired governments to
change laws and policies and make investments so that more children finally get the health care and nutrition
they need to survive and develop, and there are stronger safeguards in place to protect children from violence
and exploitation. It has also enabled more children to have their voices heard and participate in their societies.
United Nations Convention on the Rights of the Child (UNCRC)
In 1959 the United Nations General Assembly adopted the Declaration of the Rights of the Child
(DRC). The DRC describes children’s rights in 10 principles. However, this document was not signed by all
the countries. Therefore these ten principles only provided an indicative value. The DRC paved the way to the
Universal Declaration of Children Rights, which is popularly known as the United Nations Convention on the
Rights of the Child(UNCRC).The UNCRC was unanimously adopted by the UN General Assembly on
20thNovember 1989.
This became the first internationally binding instrument which recognized all the fundamental rights
of the child. The UNCRC gave legal expression to the notion that children have independent human rights –
and that those rights would be at the heart of all political, economic and social decision making. Its 54 articles
describe the economic, social and cultural rights of the children. It enshrines the general principles of non-
discrimination, best interests of the child, right to life, survival and development and respect for the views of
child. It then elaborates the specific rights of civil rights and freedoms; family environment and alternative
care; basic health and welfare; education, leisure and cultural activities; and special protection measures.
India ratified the UNCRC in December 1992, therefore the Government of India is obligated to
implement the rights contained in the UNCRC. As of 2011, the International Charter of the Child Rights has
been signed by 191countries out of 193, thus giving it wide acceptance and recognition.
Only two nations, Somalia and the United States of America did not ratify the UNCRC. (Somalia does
not currently have an internationally recognized government, so ratification is impossible, and the United
States, which was one of the original signatories of the convention, has failed to ratify the treaty because of
concerns about its potential impact on national sovereignty and the parent-child relationship.
The Government of India submitted its first Country Report on the Convention of the Rights of the
Child in February 1997.

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RIGHTS AND IMMUNITIES OF CHILDREN UNDER CONTRACT
The children who is below the age of 18 years is against the fundamentals of the general contract act.
a child is not able to enter into contract until he/she is not attained the age of majority, 18 years according to
the Section 11 of Indian Contract act 1872.
By virtue of section 3 of the Indian Majority Act, 1875, a minor is person who has not attained
eighteen years of age. If a guardian is appointed by the court for a minor's person or property, he attains
majority only completion of 21 years of age.
The position of a minor as regards his agreements can be summed as under:
(1) An agreement with or by a minor is ab initio (from the very beginning) void.
In England, a minor's contract is only voidable at his instance.
Mohori Bibi V. Dharmadas Bhose (1905)
A minor executed a mortgage for the sum of Rs.20000 in favour of the defendant and out of which the mort-
gagee paid the minor Rs. 8000. Subsequently the minor sued for setting aside the mortgage. The defendant
claimed refund of Rs. 8000/- which he had paid to the minor. The court held that the agreement was void ab
initio band thus he could not recover the amount.
(2) A minor can be a promisee or a beneficiary. A minor cannot be a seller or mortgagee. A minor
cannot be a seller or mortgagor.
Example : M aged 17, agreed to purchase a second hand scooter for Rs. 2000/- from S. M paid Rs. 200 as
advance and agreed to pay the balance the next day and collect the scooter. When M came with the money the
next day, S told him that he had changed his mind and offered to return the advance. S cannot avoid the
contract though M may, if he likes.
Padma Vithoba V. M. Murtani (1963) 3 SCR 229
The Supreme Court held that a minor can be a transferee of property under a sale or mortgage.
Ranga Raju V. M. Basappa (1913) 24 MLJ 363
The Court held that if a minor happens to lend money on a promissory note, he can recover the amount from
the promisor.

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Raghavachariar v. Srinivasa Raghavachariar, 40 Mad. 308 (FB)
A minor lent money to 'B' on a mortgage. It was held that a minor can be a mortgagee and a mortgage in his
favour is enforceable.
(3)Minor cannot ratify the agreement on attaining majority
An agreement entered into by a minor cannot ratify when he attains majority. It is because minors
contracts are void ab initio.
Armugham V. Doraisinga (1914) 37 Mad. 38
M, a minor borrowed Rs. 5000/- from Land executed a promissory note in favour of L. After attain-
ing majority, M executed a fresh promissory note in consideration of the same borrowing. The second prom-
issory note is To Want of consideration. A minor cannot ratify an act which he did during minority on attaining
majority .
(4)A minor can always plead minority
Even if a minor fraudulently representing himself to be of full age and Induced another to lend him
a loan, he can avoid the liability to pay back by Pleading minority. In other words, the doctrine of estoppel is
not applicable to minors. Estoppel is a rule of evidence by which a person is not allowed to go back from his
previous representation
Example : A minor, by fraudulently representing himself to be of full age, induced L to lend him Rs. 10000/-
. He refused to repay it and L sued him for the money. Here, the contract was absolutely void and S was not
liable to repay Rs. 10000/-.
Sadik v. Jaikishore (1928)PC 152
The Privy Council held that there can be no estoppel against a minor. Even when a minor misrepresents that
he is a major and thereby induces another to enter into a contract, it cannot be enforced against him as he is
not estopped from setting up his minority as a defence.
(5) A minor may be directed to restore the property
If some property is obtained by a minor by some fraudulent representation, the court may direct the
minor to restore the property to the other party, if the propery remains in his possession.

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Under English law restitution will not be ordered if the benefit obtained by the minor is money. If
the infant has obtained a loan of money which has borrowed by fraud and subsequently spent, restitution
becomes impossible.
Leslie v. Sheil (1914) 3 KB 607
A minor obtained a loan of 400 pounds by a fraudulent mis-representation of his age. The court held
that a minor could not be compelled to restore the amount. It was held that "restitution stops where repayment
begins"
Khan Gulv. Lakha Singh ILR(1929) 9 Lah. 701 (FB)
The Lahore High Court directed a minor to restore the money received by him through his fraud.
Ajudhia Prasad v. Chandan Lal ILR 860 (1937) All. 860
The Allahabad High Court held that a mortgagee cannot recover the money lent by him to a minor on the
principle of restitution.
By virtue of section 33 of the Specific Relief Act, 1963, the court may direct a minor who has
fraudulently received any benefit under the agreement from the other party to restore the benefit. But it must
be shown that the minor or his estate derived benefit therefrom.
(6) A minor cannot enter into a contract of partnership. But he may be admitted to the benefits of the
partnership firm with the consent of other partners.
(7) A minor is liable for necessaries supplied to him. He is liable to pay out of his
property for necessaries supplied to him.
Thus if a medical shop owner supplies some medicines to a minor on credit, he is entitled to realise
the money from the minor's property. A minor, is however, not personally liable. Certain services such as
education, medical treatment, legal advice etc., rendered to a minor have been held to be necessaries. In Eng-
land, a contract for necessaries is valid and binding on the minor.
Position of Minor's parents
The parents of the minor are not liable for the contracts entered into by the minor, even though the
contract is for the supply of necessaries to the minor. A minor can act as agent of another. If the minor acts as
an agent of parents, the parents are liable under the contract.

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RIGHTS AND IMMUNITIES OF CHILDREN UNDER TORT
In determining tort liability for children, there are special rules, usually based on the age of the
minor. Historically, there was a bright-line test based on the child’s age. Specifically:
 Under age 7: A child could not be negligent.

 Between age 7 and 14: There was a rebuttable presumption that the child could not be negligent.
 Between age 14 and 21: There was a rebuttable presumption that the child was capable of negligence.
A minor is a person who has not completed the age of eighteen years. If a tort is committed against
him, he can claim compensation from the tort-feasor. If he wants to file a suit during minority, he has to
institute the suit through his next friend. He can also file a suit after attaining majority for the tort committed
against him during minority.
Claim for Pre-natal injuries
The question whether a child is entitle to compensation, if he had been born disabled because of the injury
caused to it before birth as a result of the tortious act of the defendant was considered by the Canadian court
in the case of Walker v. G.N. Ry co of Ireland (1891)
In the above case, a pregnant mother travelled in the defendant's train was injured in an accident.
The accident was resulted due to negligence of the defendant. The child was born alive but he was disabled.
The child claimed compensation. The court held that the defendant was not liable to pay compensation for
two reasons. Firstly. The defendants did not owe any duty to the plaintiff as they did not about his existence:
Secondly, the medical evidence to prove the plain claim was very uncertain.
In Montreal Tramways v. Leveilce (1933), the Supreme Co of Canada allowed an action by a child
born with club- feet, two month after an injury to its mother by the negligence of the defendants.
There are no English or Indian decision on this point. Majority of the writers on the subject are in favour of
the view that an action for prenatal injuries should be recognized if the act of the defendant can be considered
to be tortious.
In England, Congenital Disabilities (Civil Liability) Act, 1976 was passed to make this point clear
and the Act recognizes an action in case of children born disabled due to some persons fault. The salient
features of the Act are summarized below:
I. An action is allowed if the child is born alive, but disabled.

II. Damages for loss of expectation of life of such a child can be claimed, provided the child lives for at
least 48 hours after his birth
III. Contributory negligence of the parents can be pleaded as a defence in such an action.

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IV. Liability towards the child can be excluded or restricted by a contract made with the parent of such a
child.
V. The act permits an action not only for an injury to a child in the mother’s womb, but also for acts prior
to that. It permits an action for an occurrence which affected either parent of a child in his her ability
to have a normal, healthy child.
VI. An action for injury to the child is permitted even against child’s mother, if the harm to the child is
caused when she is guilty negligent driving of a motor vehicle. In view of this act there compulsory
insurance of all motor vehicles against ‘Third Party’ Risk's such an action against the mother would
virtually mean An action against the insurance company. An action even against the father could be
justified when the father assaults his pregnant wife and thereby causes injury to the unborn child.
A similar legislation in India is necessary to protect the interest of the children
Capacity to be sued
Under law of torts, minority is not a defence. A minor is liable in the same manner and to the same
extent as an adult, for tort committed by him. As you know, under the law of contract, no action can be brought
against a minor as his agreement is void ab initio. Under Criminal law also a child below seven years of age
cannot be held liable for any offence ‘as he is presumed to be doli incapase (incapable of doing a wrongful
act). Between the age of 7 and 12 years a child is not liable unless he had attained sufficient maturity of
understanding to judge the nature and consequences of his conduct on the occasion.
The law of torts does not make any distinction on the basis of age. Thus a child of seven years could
be sued for trespass like a person of full age. However, if the tort is such as requires a special mental element
such as deceit. Malicious prosecution or conspiracy, a child cannot be held liable for the same unless sufficient
maturity for committing that tort can be proved in his case
Liability of parents for children's torts
The general rule is that a parent or a guardian cannot be made able for the torts of a child There are
two exceptions to this Rule. They are;
I. If the child acts as an agent or servant of or servant of his father, the father vicariously liable.
II. When the father himself, by his own negligence, affords his child an opportunity to commit a tort. he
is liable.

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Bebee v. Sales (1916)
The father supplied an air-gun to his son, aged 15 years. Even after some complaints of mischief
caused by the use of lowed the gun to remain with the boy who thereafter accidently wounded the plaintiff.
The father was held to be liable.
RIGHTS AND IMMUNITIES OF CHILDREN UNDER CRIME
At common law, there were also age specific demarcations regarding minors’ liability for criminal
conduct:
 Under age 7: A child was conclusively deemed incapable of committing a crime.

 Between age 7 and 14: There was a presumption that the child was unable to form criminal intent;
however, this presumption could be rebutted by the state proving that the child had sufficient
intelligence to form a criminal intent.
 Between age 14 and 21: A minor was held to have the same capacity to form a criminal intent as an
adult.
Today, most states deal with juvenile offenders with statutes that focus on supervision and rehabilitation
of the minor in a civil proceeding. Generally, minors remain under the jurisdiction of juvenile courts until the
age of 16 or 18, after which they become subject to the same criminal responsibilities as adults. Yet, as
younger perpetrators commit violent crimes, the criminal justice system struggles with how to handle these
situations.
Section 82 and section 83 of the Indian Penal Code confer immunity from criminal liability to children
up to 12 years. Children below 7 years get a complete defense from criminal liability whereas, for children
from 7 to 12 years, the immunity conferred depends on their maturity of understanding during the commission
of the crime.
The Indian Penal Code, 1860 provides that nothing is an offence done by a child under 7 years of
age.Where the offence is done by a child above 7 years and under 12 years, who has not attained the sufficient
maturity of understanding to judge the nature and consequences of his conduct, he will not be liable for the
same.
Even the child enre se mere is recognised under the penal law. Whoever voluntarily causes a woman
with child to miscarry shall be punished (sections 312 to 316 and 318)

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the responsibility of the parents to take care of the child also is made a question of supervision under
the penal justice system. Accordingly, whoever being the father or mother of a child under the age of 12 years,
or 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 extent
to 7 years, or with fine, or with both (section 317)
Kidnapping from lawful guardianship is made punishable by virtue of section 361. Accordingly, who-
ever takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female, out of
the keeping of the lawful guardian of such minor, is said to kidnap such minor from the lawful guardianship.
The law extents maximum protection and assures greater care towards children and so the judiciary is keen to
widely interpret this provision. Thus it was held that the word ‘takes’ does not necessarily mean taking by
force nor it is confined only to the use of force. The word simply means, “to cause to go, to escort or to get
into possession”. The term ‘entices’ involves the idea of inducement or allurement by giving rise to hope or
desire in another person. The very object of this section is to protect the minor children from the influence of
being seduced to illicit purposes. Again, under section 363A, kidnapping or maiming a minor for purposes of
begging is also an offence.
Section 366A says that whoever, by any means whatsoever, induces any minor girl under the age of
18 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 punished. Again, impor-
tation of any girl under 21 years of age from any country outside India with the intention or knowledge that
she will be forced or seduced to illicit intercourse with another person is also made an offence. Similarly,
selling minor for prostitution is an offence under section 372.
The sixth description of section 375 provides that the sexual intercourse with a woman under 16 years
of age will make a man liable for the offence of ‘rape’, irrespective of the question whether she had given
consent or not.
Section 82 of IPC: Act of a child under seven years of age.—Nothing is an offence which is done by a child
under seven years of age
Section 83 of IPC: Act of a child above seven and under twelve of immature understanding.—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.
Section 305 of IPC: If any person under eighteen years of age commits suicide, whoever abets the commission
of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceed-
ing ten years, and shall also be liable to fine.

16
Section 315 of IPC: Act done with intent to prevent child being born alive or to cause it to die after birth.
Section 316 of IPC: Causing death of quick unborn child by act amounting to culpable homicide.
Section 27 of CrPC ; Jurisdiction in the case of juveniles. Any offence not punishable with death or impris-
onment for life, committed by any person who at the date when he appears or is brought before the Court is
under the age of sixteen years.
Section 125 of CrPC : Parents should provide maintenance to his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself, or 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.
ADOPTION
Adoption means the process through which the adopted child becomes the lawful child of his adoptive
parents with all the rights, privileges and responsibilities that are attached to a biological child.
Fundamental principles governing adoption:

The following fundamental principles shall govern adoptions of children from India, namely:-
 the child's best interests shall be of paramount consideration, while processing any adoption placement
 preference shall be given to place the child in adoption with Indian citizens and with due regard to the
principle of placement of the child in his own socio-cultural environment, as far as possible
 All adoptions shall be registered on Child Adoption Resource Information and Guidance System and
the confidentiality of the same shall be maintained by the Authority.
ADOPTION UNDER ENGLISH LAW
The English Law started recognizing adoption during the latter half of the nineteenth century. Legal
adoption came into existence only during 1926. The purpose of this Adoption Act was to prevent the biological
parents from claiming back their children. A more comprehensive Act was passed in 1950. This Act was
modified in the year 1958.
English law of adoption is very similar to the Hindu Law of Adoption inasmuch as that it lays down that the
adopted child, for all intents and purposes, becomes like a natural child and the child’s ties with his natural
family are severed.

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MODERN ADOPTION LAWS
The history of adoption traces back to ancient times. Examples of Moses being adopted and the adop-
tion of King Octavian Augustus. Modern adoption laws came into existence only after the First World War.
The main reasons were the influenza epidemic and the aftermath of WW I. Many kids were abandoned by
their parents, others were separated from their biological families. The confusion and chaos caused due to the
War influenced many countries to enact new legislations or modify previously existing laws on adoption.
The first adoption laws were passed by England and Wales. It was the Adoption of Children Act, 1926.
Until that date adoption had not been recognized as a legal concept. This law required the consent of both the
biological parents and that of the adoptive parents. Although the Act recognized that adopted children bene-
fited from the same rights, duties, liabilities and obligations as a birth child, it did not ensure the child’s full
integration into the adoptive family, nor were inheritance rights replaced in the birth family.
A large number of countries enacted new adoption laws in the aftermath of the World War II. Several amend-
ments were made to earlier legislations during 1940 – 1980. A number of countries also modified existing
legislation on adoptions to allow for new form of adoption.
ADOPTION IN INDIA
The custom and practice of adoption in India dates back to the ancient times. Although the act of
adoption remains the same, the objective with which this act is carried out has differed. It usually ranged from
the humanitarian motive of caring and bringing up a neglected or destitute child, to a natural desire for a kid
as an object of affection, a caretaker in old age, and an heir after death.
But since adoption comes under the ambit of personal laws, there has not been a scope in the Indian
scenario to incorporate a uniform law among the different communities which consist of this melting pot.
Hence, this law is governed by various personal laws of different religions.
Adoption is not permitted in the personal laws of Muslims, Christians, Parsis and Jews in India. Hence
they usually opt for guardianship of a child through the Guardians and Wards Act, 1890.
Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The adoption
is under the Hindu Adoption and Maintenance Act of 1956 that was enacted in India as a part of the Hindu
Code Bills. It brought about a few reforms that liberalized the institution of adoption.

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HINDU LAW
Hindu law is the only law in India which treats an adopted child as being equivalent to a natural born
child. The reason for this is mostly because of the belief that a son was indispensable for spiritual as well as
material welfare of the family. But it is significant to note here that this role as a ‘deliverer of hell’ was only
limited to the son.
Under the old Hindu Law, only a male could be adopted and an orphan could not be adopted. Then even if a
male was to be adopted, restrictions were imposed based on Caste and Gotra. A female child could not be
adopted under the Hindu Law. Under the old Hindu law, only the male had a right to adopt and the consent or
dissent of his wife to the proposed adoption was immaterial.
But such restrictions have changed in the course of time. Such gender biases have been minimized in
today’s modern society. Under the modern Hindu Law, every Hindu, male or female has the capacity to make
an adoption provided he or she has attained majority and are of sound mind. Most of these laws, rules and
regulations have been enumerated in the Hindu Adoption and Maintenance Act of 1956.
HINDU ADOPTION AND MAINTENANCE ACT, 1956
The Hindu Adoption and Maintenance Act was passed after Independence as part of modernizing and
codifying Hindu Law. The Act to some extent reflects the principles of equality and social justice by removing
several (though not all) gender based discriminatory provisions.
This Act deals with topics such as capacity to adopt, capacity to give in adoption, effect of adoption, gender
bias and such others.
Capacity to Adopt: In this Act it is said that any adult Hindu male who is of sound mind can adopt a child. If
the said man is married, the consent of the wife is necessary. Likewise, a female adult Hindu of sound mind
could adopt a child if she is
1. Unmarried
2. Divorced
3. Widowed or
4. Her husband suffers from certain disabilities
1. Ceased to be a Hindu
2. Has renounced the World
3. Has been declared to be of unsound mind by the court

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Capacity to give in Adoption: The section 9 of this Act states that only the father, the mother or the guardian
can make the decision of giving a child in adoption. The father can give the child in adoption only with the
consent of the mother, unless the mother has ceased to be a Hindu, has renounced the world or is of unsound
mind. The mother may give the child in adoption if the father is dead or 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.
Effect of Adoption: When once a child has been adopted, that child severs all ties with his natural family. All
the right and obligations of natural born children fall on him.
The wife of a Hindu male, who adopts is deemed to be the adoptive mother. Where an adoption is
made with the consent of more than one wife, the senior most in marriage is deemed to be the adoptive mother
and the rest are given the title of step mothers. All laws relating to the adoptive parents and/or step parents
can be seen in ss. 12, 13 and 14 of the Hindu Maintenance and Adoption Act of 1956.
In this context, an issue came up. The case of Sawan Ram v. Kalavati, brought out the question as to whether,
in the case of adoption by a widow, would the adopted child be deemed to be the child of the deceased husband
as well, so as to be his heir. The Supreme Court held that the adoption would not only be by the female, but
also to her deceased husband. This argument was based on the words found in s. 5(1) of the Act.
Also, it has to be noted that the adoptions once made by the parents cannot be cancelled by the parents,
nor can the adopted child renounce the adoptive family and go back to his/her birth parents. Adoption is
generally held to be permanent in nature, with neither parties going back on their words. This has been stated
in section 15 of The Act. But care has to be taken that the adoption referred to in this section is a valid adoption.
Gender Bias in Adoption: Though after the enactment of the Act, it has been noted that the gender discrimi-
nation has been eliminated but in actual sense it still exists. A married female cannot adopt, not even with the
husband’s consent, unless her husband dies or suffers from any disability or renounces the world or so. On the
other hand, a husband may adopt with the consent of the wife. To clearly show the gender discrimination, two
cases have been referred. Similarly, in the matter of a giving a child in adoption, the Hindu male enjoys broader
rights than a corresponding female.
In the case Malti Roy Choudhury v. Sudhindranath Majumdar : the appellant, Malti had been
adopted by the deceased mother. After her mother’s death, she became the sole heiress and applied for estates
and properties left behind by her mother. There were a lot of evidences which have been presented by the
appellant like proof of the ceremony of adoption, natural parents handing over the child to the adoptive mother
in the presence of her husband and the priest; acknowledgement through school records; Malti being per-
formed the funeral ceremony of her mother. But however, the Court did not accept the argument and it was

20
held that, “under the provisions of the act, the husband alone can adopt, but here, it is an admitted position
that Malti was adopted by the mother Tripti not by the father and thereby, rejected her appeal.”
It is time that law, in this age of equality, takes cognizance of the same and give equal rights to both
men and women with regard to adoption. There is no reason to give to the husband veto power to deny fulfill-
ment of maternal instincts of his wife.
GUARDIANS AND WARDS ACT, 1890
As the name itself suggests, the Hindu Adoption and Maintenance Act were mostly the guidelines for
the Hindu society. Another law had to be made which was sensitive to the personal laws of other religions
which did not come under the Hindu Adoption and Maintenance Act of 1956. This gave rise to the Guardians
and Wards Act of 1890.
The Guardians and Wards Act, 1890 was a law to supersede all other laws regarding the same. It became the
only non-religious universal law regarding the guardianship of a child, applicable to all of India except the
state of Jammu and Kashmir. This law is particularly outlined for Muslims, Christians, Parsis and Jews as
their personal laws don’t allow for full adoption, but only guardianship. It applies to all children regardless of
race or creed. Following is an overview of the act.
It was stated that any child who had not completed 18 years of age was to be a minor. This child would
be appointed guardians by the court or any other appointed authority. They would decide who would take
place as the said child’s guardian or by removing another as a guardian. All these procedures took place only
after an application had been placed by the person who was willing to take a child under himself and to act as
his guardian. The applications should contain all the possible information that would have been required,
including the information about the guardian and any reason as such for the guardianship. This was just the
first step. Once the court admits the application, a date for a hearing would be set. The court will hear evidence
before making a decision. Unlike in the procedures given in the Hindu Adoption and Maintenance Act, 1956,
where a person once adopted has a single set of parent, here a minor and his property could have more than
one guardian. It was required under these cases of guardianship that the court use its discretionary power and
considered the interests of the minor. His/her age, sex, religion, the compatibility quotient with the guardian,
the death of the parent, etc. must be taken into consideration. The minor’s preference may also be taken into
consideration.
MUSLIM LAW
Adoption is a little different under Islamic law than the usual adoption practices that are followed. The
Islamic term for what is generally called adoption is kafala. Like everything else in Islamic Law, the practice
of adoption is highly regulated. A guardian/ward role is played out rather than a parent. This relationship has
specific rules. These rules are mainly to preserve the integrity of the family line.

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Adoption is certainly not prohibited. What is unlawful is to attribute one’s adopted child to oneself, as if there
is a biological relationship. This is because Islam seeks to safeguard biological lineage and not confuse line-
age.
There are a few rules in Islam surrounding the concept of Adoption:
 An adopted child retains his or her own biological family name (surname) and does not change his or
her name to match that of the adoptive family.
 An adopted child inherits from his or her biological parents, not automatically from the adoptive par-
ents.
 If the child is provided with property/wealth from the biological family, adoptive parents are com-
manded to take care and not intermingle that property/wealth with their own. They serve merely as
trustees.
These Islamic rules emphasize to the adoptive family that they are not taking the place of the biological family
they are trustees and caretakers of someone else’s child. Their role is very clearly defined, but nevertheless
very valued and important.
It is also important to note that in Islam, the extended family network is vast and very strong. It is rare
for a child to be completely orphaned, without a single family member to care for him or her. Islam places
a great emphasis on the ties of kinship — a completely abandoned child is practically unheard of. Islamic law
would place an emphasis on locating a relative to care for the child, before allowing someone outside of the
family, much less the community or country, to adopt and remove the child from his or her familial, cultural,
and religious roots. This is especially important during times of war, famine, or economic crisis — when
families may be temporarily uprooted or divided.
CHRISTIAN LAW AND PARSI LAW
The personal laws of these communities also do not recognize adoption and here too an adoption can
take place from an orphanage by obtaining permission from the court under Guardians and wards act. A Chris-
tian has no adoption law.
Since adoption is legal affiliation of a child, it forms the subject matter of personal law. Christians have no
adoption laws and have to approach court under the Guardians and Wards Act, 1890. National Commission
on Women has stressed on the need for a uniform adoption law. Christians can take a child under the said Act
only under foster care. Once a child under foster care becomes major, he is free to break away all his connec-
tions. Besides, such a child does not have legal right of inheritance.
The general law relating to guardians and wards is contained in the Guardians and Wards Act, 1890.
It clearly lays down that father’s right is primary and no other person can be appointed unless the father is

22
found unfit. This Act also provides that the court must take into consideration the welfare of the child while
appointing a guardian under the Act.
There is no specific statute enabling or regulating adoption among Christians in India. In the absence of a
statutory or customary adoption recognized by courts, foster children are not treated in law as children. On
death of the foster parents, their estate is distributed among legal heirs of the intestate, to the detriment of
foster children. Christians in India can adopt children by resort to section 41 of the Juvenile Justice (Care and
Protection of Children) Act 2006 read with the Guidelines and Rules issued by various State Governments.
UNIFORM CIVIL CODE FOR ADOPTION
Laws relating to crime and punishment are the same for all citizens in India, and so are the laws relating
to commerce, contracts and other affairs. But there are, as is evident from the case laws and the authorities put
forth above, that there are no uniform laws regarding family matters in the Indian context. It has been requested
since a long time for a uniformity in such laws. To treat all citizens equally, one must have same laws for
everybody. In case of adoption, the conspicuously different laws for Hindus and Non Hindus creates an emo-
tional problem. The non-Hindu parents, who may want to adopt a child and treat him/her as their own are not
legally allowed to call themselves the parents or claim the child as their own. Hence, there has been a cry for
a uniform civil code with respect to adoption.
A uniform civil code in adoption laws will not violate fundamental right to religion. It should be re-
membered that directive principles of States policy mandate the state to bring uniformity in laws. India being
signatory to CRC (Convention on the Rights of a Child), such uniformity is necessary so that the rights of
adoptive children can well be enhanced and protected. Since Adoption is a salient feature of Hinduism, The
Hindu Adoptions and Maintenance Act, 1956 statutorily recognizes adoption. The Act brought about signifi-
cant changes to the law of adoption amongst Hindus and has improved the position of women in this regard.
It is absurd that Muslim and Christian Indians cannot legally adopt a child for lack of a uniform code on
adoption. If a Uniform Civil Code is enacted, like the Hindu women, the women following other religions will
also be allowed to adopt. With the coming of a Uniform Civil Code, the status of Indian women will definitely
improve in all aspects of social life. One way to avoid conflict would be to give people the option to opt out
of classification based on religion. It should not be mandatory that there should be a set of religious personal
laws that govern a person’s life; instead, more laws to ensure basic human rights are the need of the hour. If
the Centre is unwilling to move forward, individual states should take the lead. Goa is one state that has shown
the way and other states may follow suit. A secular India needs a uniform civil code.
Apart from this, care has to be taken that the uniformity that has been requested for breaks through the
shackles of gender bias too. The different rules regarding adoption for men and women must stop. Both must
have equal rights to adopt a child. Thus this issue also needs to be addressed.

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INTERCOUNTRY ADOPTION
Inter-country adoption is the process by which you:
1. Adopt a child from a country other than your own through permanent legal means; and
2. Bring that child to your country of residence to live with you permanently.
Inter-country adoption is similar to domestic adoption. Both consist of the legal transfer of parental rights and
responsibilities from a child’s birth parent(s) or other guardian to a new parent or parents.
Lakshmi Kant Pandey’s case is the most important in the area of inter-country adoption. In 1982, a
petition was filed under Article 32 of the Constitution by advocate Lakshmi Kant Pandey alleging malpractices
and trafficking of children by social organizations and voluntary agencies that offer Indian children for adop-
tion overseas. The petition was filed on the basis of a report in the foreign magazine called “The Mail”. The
petitioner accordingly sought relief restraining Indian based private agencies “from carrying out further activ-
ity of routing children for adoption abroad” and directing the Government of India, the Indian Council of
Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption
of Indian children by foreign parents. By an order- dated 6.2.1984 the Supreme Court laid down detailed
principles and norms to be followed for the adoption of children by the people overseas. Many examples and
references were cited while ‘discussing the issue, including the statutory provisions and the international
standards. While discussing the issue the court said: “When the parents of a child want to give it away in
adoption or the child is abandoned and it is considered necessary in the interest of the child to give it in
adoption, every effort must be made first to find adoptive parents for it within the country because such adop-
tion would steer clear of any problems of assimilation of the child in the family of the adoptive parents which
might arise on account of cultural, racial or linguistic differences in case of adoption of the child by foreign
parents. If it is not possible to find suitable adoptive parents for the child within the country, it may become
necessary to give the child in adoption to foreign parents rather than allow the child to grow up in an orphanage
or an institution where it will have no family life and no love and affection of parents and quite often, in the
socio-economic conditions prevailing in the country, it might have to lead the life of a destitute, half-clad,
half-hungry and suffering from malnutrition and illness”
The Supreme Court of India has laid down that every application from a foreigner/NRI/PIO (as appli-
cable) desiring to adopt a child must be sponsored by a social or child welfare agency recognized or licensed
by the Government or a Department of the Foreign Govt. to sponsor such cases in the country in which the
foreigner is resident. The foreign agency should also be an agency ‘authorized’ by CARA, Ministry of Social
Justice & Empowerment, Govt. of India. No application by a foreigner/NRI/PIO for taking a child in adoption
should be entertained directly by any social or child welfare agency in India.

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According to section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act,
2006, “adoption means the process through which the adopted child is permanently separated from his
biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and
responsibility that are attached to the relationship”.
JJ ACT:
Section 2(2) of the JJ act defines the term adoption, it means the process through which the adopted
child is permanently separated from his biological parents and become the lawful child of his adoptive par-
ent with all the rights, privileges and responsibilities that are attached to a biological child.
To streamline adoption procedures for orphan, abandoned and surrendered children, the existing
Central Adoption Resource Authority (CARA) is given the status of a statutory body to enable it to perform
its function more effectively.
Separate chapter (VIII) on Adoption provides for detailed provisions relating to adoption and
punishments for not complying with the laid down procedure. Processes have been streamlined with timelines
for both in-country and inter-country adoption including declaring a child legally free for adoption.
Who is eligible to adopt a child?

 The prospective adoptive parents should be physically, mentally and emotionally stable; financially
capable; motivated to adopt a child; and should not have any life threatening medical condition;
 Any prospective adoptive parent, irrespective of his marital status and whether or not he has his own
biological son or daughter, can adopt a child;
 Single female is eligible to adopt a child of any gender:
 Single male person shall not be eligible to adopt a girl child;
 In case of a couple, the consent of both spouses shall be required;
 No child shall be given in adoption to a couple unless they have at least two years of stable marital
relationship;
 The age of prospective adoptive parents as on the date of registration shall be counted for deciding the
eligibility and the eligibility of prospective adoptive parents to apply for children of different age
groups shall be as under
Age of the child Maximum composite age of Maximum age of single

prospective adoptive parents prospective adoptive parent
Upto 4 years 90 years 45 years
Above 4 upto 8 years 100 years 50 years

25
Above 8 upto 18 years 110 years 55 years
The minimum age difference between the child and either of the prospective adoptive parents should not be
less than twenty five years;
 The age for eligibility will be as on the date of registration of the prospective adoptive parents;
 Couples with more than four children shall not be considered for adoption;
MAINTENANCE
In India, beneficial provisions for maintenance of children and parents are provided under various
Acts. Objective of such provisions is to achieve a social purpose and to prevent vagrancy and destitution and
to provide simple, inexpensive and speedy mechanism for providing support and maintenance to children and
parents.
These provisions along with important cases are discussed below:
Statutory Provisions
Hindu Marriage Act, 1955, Section 26 – During the proceedings under the Act, the court may pass
orders with respect to the custody, maintenance, and education of minor children. Under this Act, both parents
(father as well as mother or either of them) are liable to maintain the children as ordered by the court. While
making such orders, the court takes into account wishes of the children, as far as possible. Such orders and
provisions may be altered from time to time. Any application in respect to maintenance and education of minor
children during pendency of proceedings under the Act has to be decided within sixty days from the date of
service of notice on the respondent, as far as possible.
Hindu Adoption and Maintenance Act, 1956, Section 20 – A Hindu male or female is bound to
maintain his or her legitimate/illegitimate minor children and aged/ infirm parents. Aged or infirm parent
(which includes childless stepmother) or unmarried daughter have to be maintained if they are unable to main-
tain themselves. Section 23 sub-section (2) states that while determining the amount of maintenance to be
awarded to children or aged or infirm parents, the court shall consider the following:
(a) position and status of the parties;
(b) reasonable wants of the claimants;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) claimants income and value of property held by him, if any; etc.

26
If a person ceases to be a Hindu (changes his religion), he/she cannot claim maintenance under this
Act [Section 24]. The amount of maintenance may be modified if there is a change in circumstances warrant-
ing so [Section 25].
Under this Act, even the heirs of a deceased Hindu are bound to maintain his/her “dependants” out of his/her
estate inherited by them [Section 22]. Dependents include deceased person’s minor son, unmarried daughter,
widowed daughter, minor illegitimate son, minor illegitimate daughter [Section 21].
Criminal Procedure Code, 1973, Section 125 – Magistrate may order a person to make monthly allowance
for maintenance in a case where any person who despite having sufficient means neglects or refuses to main-
tain –
(i) his legitimate or illegitimate minor child who is unable to maintain itself; or
(ii) legitimate or illegitimate major child (not being a married daughter) unable to maintain itself due to any
physical or mental abnormality/injury; or
(iii) married daughter till she attains majority if her husband is not able to maintain her; or
(iv) his/her father or mother who are unable to maintain themselves.
This section also makes a provision for maintenance during the pendency of proceedings regarding
monthly allowance for maintenance. Also, application for interim maintenance during pending proceedings is
to be decided by the Magistrate, as far as possible, within sixty days of the date of service of notice of appli-
cation to such person. A person who fails to comply with the order of the Magistrate without showing suffi-
cient cause may also be sent to prison. The order of maintenance passed under this section may be altered by
the Magistrate on proof of change in circumstances [Section 127].
Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 – A divorced Muslim
woman is entitled to a reasonable and fair provision and maintenance for children born to her for a period of
two years from the respective dates of birth of such children. It does not matter if the children were born before
or after the divorce, the former husband is liable to pay maintenance. If the former husband fails to comply
with the order passed by Magistrate without showing sufficient reason, he may have to suffer imprisonment
up to one year.
Maintenance and Welfare of Parents and Senior Citizens Act, 2007, Section 4 – Parent (father or
mother whether biological, adoptive or step father or step mother, whether senior citizen or not) or grand-
parent who is unable to maintain himself is entitled to claim maintenance from one or more of his adult chil-
dren (son, daughter, grandson and grand-daughter but does not include a minor). Obligation of the children to
maintain their parents extends to such needs of the parents which will allow them to lead a normal life. Addi-
tionally, this Act also makes provision for maintenance of childless senior citizens (who has attained the age

27
of sixty years or above) by their relatives. The “relative” means any legal heir of childless senior citizen who
is in possession of his property or would inherit it after his death, but it does not include a minor.
If the parents or senior citizens are incapable of applying for monthly allowance for maintenance them-
selves, in that case, an application can be made through any other person or organisation authorised by them.
Such an application has to be decided by Maintenance Tribunal within a maximum period of 120 days from
the date of service of notice to children/relative. If children/relative fails to comply with the orders of the
Tribunal, this may result in imprisonment upto one month. [Section 5]. The Tribunal may order the chil-
dren/relative to make a monthly allowance at a rate deemed fit by the Tribunal. However, the maximum
amount of maintenance cannot exceed Rs 10,000 per month. [Section 9]. The order of maintenance may be
altered by the Tribunal on proof of change in circumstances [Section 10].
Cases :
Children of void marriage entitled to maintenance
A child born out of a void marriage between a woman and a man who already has a wife is to be treated as a
legitimate child who is entitled to maintenance under Section 125 CrPC, Bakulabai v. Gangaram, (1988) 1
SCC 537.
Father to maintain the unmarried daughter
An unmarried daughter unable to maintain herself is entitled to claim maintenance under the Hindu Adoption
and Maintenance Act, 1956. The father is obliged to maintain her unmarried daughters even if they are living
separately with their mother, Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7.
Daughter to be maintained until she gets married even after attaining majority
Daughter is entitled to maintenance under CrPC when read with Hindu Adoption and Maintenance Act, 1956
even after attaining majority but till her marriage, Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422.
Hindu earning mother is also obliged to maintain children
Both, a Hindu divorcee father and a Hindu divorcee earning mother are obliged to contribute for maintenance
of their children under the Hindu Adoption and Maintenance Act, 1956. Father is not exclusively responsible
to maintain children regardless of mother being affluent, Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC
266.
CrPC applies only when there is neglect or refusal to maintain despite having sufficient means
A case for grant of maintenance under Section 125 CrPC arises only when a person despite having sufficient
means neglects or refuses to maintain his legitimate or illegitimate minor children who are unable to maintain
themselves, Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359.

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Maintenance under CrPC & 1986 Act runs parallel (Muslim children entitled to maintenance under
CrPC)
The benefit under Section 125 CrPC is available to all children irrespective of religion. Right under Muslim
Women (Protection of Rights on Divorce) Act, 1986 is that of the mother to claim maintenance for children
for two years from their date of birth and is distinct and independent of the right to maintenance under CrPC
to minor children unable to maintain themselves, Noor Saba Khatoon v. Mohd. Quasim, (1997) 6 SCC 233
CHILD UNDER GUARDIANSHIP ACT

General Law For Child Custody Cases The court has the right to appoint a guardian for a minor’s
person or property or both under the Guardians and Wards Act, 1890. A ‘minor’ is considered to be a person
who is generally under the age of 18; physically and intellectually imperfect and immature and hence needing
someone’s protection. This law is applicable to all religions and is considered in conjunction with specific
religious laws.
The court considers the following aspects while deciding guardianship:

1. The personal law to which the minor is subject;
2. The age, sex and religion of the minor;
3. The character and capacity of the proposed guardian and his nearness of kin to the minor;
4. The wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian
with the minor or his property;
5. If the minor is old enough to form an intelligent preference, the court may consider that preference; 6. The
court shall not appoint or declare any person to be a guardian against his will;
7. The courts prefer to keep children together and award custody of both together when the issue of custody
involves two or more siblings;
8. The child’s comfort, health, material, intellectual, moral and spiritual welfare.
Generally, the courts give custody of a small child to the mother, and older boys and girls to the father
and mother respectively. For older children, the courts also take into consideration the wishes of the children.
However, none of this is set in stone and if the opposite party can prove that the parent is unfit to be the legal
physical guardian of the child, then the courts will rule accordingly.
Child Custody Under Hindu Law

Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of 5
years is given to the mother. The custody of boys and unmarried daughters is given to the father. Custody of
illegitimate children is given to the mother first and then the father while the guardianship of a married girl is

29
given to her husband. The Hindu Minority and Guardianship Act, 1956 exists in harmony with the Guardians
and Wards Act, 1890.
In a custody battle between estranged parents, a minor child, who has not completed five years of age,
shall be allowed to remain with the mother. The Supreme Court has ruled saying that in such cases the child
should not be treated as ‘chattel’. It is only the child’s welfare which is the focal point for consideration.
Child Custody Under Muslim Law

Under Muslim personal law, the right to a child’s custody is given solely to a mother unless she is seen
as an unfit guardian. This is called the right of hizanat and can be enforced against any person including the
father.
One thing must be kept in mind is that the mother’s right of child custody is not absolute and exists
only if such right is beneficial and in the interest of her children. Thus, the welfare of the children is at the
forefront of Muslim law.
Child Custody Under Christian Law

The Christian laws do not have any special mention about child custody rights. Hence the Indian
Divorce Act, 1869, becomes applicable for all matters pertaining to Christian children and their guardianship.
As per Section 41 of this said Act, the courts have the right to pass orders as to the custody, education and
maintenance of Christian children.
In one case, the Supreme Court held that all orders relating to the custody of the minor wards from
their very nature must be considered to be temporary orders made in the existing circumstances. With the
changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders
if such variation is considered to be in the interest of the welfare of the ward.
Child Custody Under Parsi Law

The Parsis also do not have any specific laws pertaining to child custody. Hence all such issues are
addressed by the Guardians and Wards Act, 1890. Also, under the Parsi Marriage and Divorce Act, 1936, the
wife can claim for maintenance to support their minor children. Under this Act, the court has to pass an order
within 60 days related to custody of Parsi children and their guardianship. In a recent case, both the parents
were given custody for sustainable growth of the 12-year-old boy. The court directed the minor to be in the
physical custody of the father from January 1 to June 30 and from July 1 to December 31 with his mother.
Both the parents were given visitation rights on weekends when the child was with the other parent. The
expenditure of maintenance of the child was to be split equally among the parents.

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JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDEREN) ACT 2015
Juvenile Justice System in India

Like the other countries, India had also made legal provisions that especially and specifically deals
with the rights and protection of juvenile offenders which seeks to tackle the problem of juvenile delinquency.
The Juvenile Justice System in India is made on the basis of three main assumptions:-
1. Young offenders should not be tried in courts, rather they should be corrected in all the best possible ways,
2. They should not be punished by the courts, but they should get a chance to reform
3. Trial for child in conflict with law should be based on non-penal treatment through the communities based
upon the social control agencies for e.g. Observation Homes and Special Homes
Juvenile Delinquency
Juvenile delinquency refers to the antisocial or criminal activity of the child which violates the law.
In The Juvenile Justice (Care and Protection of Children) Act, 2015 It was enacted to replace the
existing Juvenile Delinquency law, the Juvenile Justice (Care and Protection of Children) Act, 2000 so that
juveniles in conflict with law in the age group of 16-18 years, involved in heinous offences can be trialled
as adults.
 It empowers the Juvenile Justice Board to decide if a juvenile criminal in the age group of 16–18
should tried as an adult or not.
 The Act had tried to make the adoption process of orphaned, abandoned and surrendered children more
streamlined while adopting some of the concepts from The Hague Convention on Protection of Children
and Cooperation in Respect of Inter-Country Adoption.
 The act had introduced foster care in India under section 44. As per this, the families would sign up
and the abandoned, orphaned children or those in conflict with the law would be sent to them.Such
families will be monitored and shall receive financial aid from the state.
 The law had also made provision that while adopting child, priority is given to disabled children and
physically and financially incapable children.
 The parents who are giving up their child for adoption get 3 months to reconsider their decision (It was
earlier 1 month).

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 The law mandated that any person giving alcohol or drugs to child would be punished with 7 years
imprison or Rs. 1 Lakh fine or both. A person selling a child would be imprisoned for five years or Rs.
1 lakh fine or both.
Causes of Juvenile Delinquency:
Juvenile delinquency is fostered by a wide range of factors which include:
1. Poverty: Poverty is one of the major reasons for juvenile delinquency. Juveniles indulge themselves in
delinquent acts in order to meet and satisfy the primary wants of their life.
2. Family: It has been widely accepted that families of delinquents are characterized by discords, deser-
tions and other problems.Such families have been pointed out as one of the main causes of delinquency.
3. Neighbourhood: The immediate environments of a child also affect the trend he will adopt in connec-
tion with his personality. Juvenile delinquents largely belong to areas of poor living conditions.
4. Factors related to Mental Health: various mental health factors contribute to juvenile delinquency.
For example: Conduct disorder.
5. Virtual world: Constant exposure to aggression – verbal and physical – on television news, videos and
games also contributes to increasing juvenile delinquency.
6. Substance Abuse: there is a strong relationship between substance abuse and juvenile delin-
quency.Substance abuse is associated with both violent and income-generating crimes by youth.
7. Bad Peer Group: Juvenile delinquency is often caused or worsened by peer pressur
General Principles of Care and Protection of Children
By section 3 of the act, while implementing the provisions of the act, the central government, the state
government, the juvenile justice board, the child welfare committee and other agencies, shall be guided by
the following fundamental principles.
Principle of presumption of innocence
Any child shall be presumed to be an innocent of any malafide or criminal intent up to the age of eighteen
years. This principle presumes that anything done by the child or the child in conflict with law has been
done without mensrea or malafide intention. This principle operates right from the initiation of the proceed-
ings and ends at the aftercare programme. It simply states that whatever be the act committed and whatever
be the circumstances and whether it is done by himself or under the control of the adults or with the influence
of peer group should always be considered that the said Act has been committed without mensrea i.e. the
Principle of presumption of innocence should be applied for all those activities which has been covered or
explicitly stated in the Rule.

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Principle of dignity and worth
All human beings shall be treated with equal dignity and rights. This principle mandates the agencies
involved in the JJ Act are to treat the child with dignity and worth and not to label, stigmatize or discriminate
the child. It also mandates the authorities to respect the personal identity and such other things relating to the
child right from initial apprehension till the aftercare is over.
Principle of participation
Every child shall have a right to be heard and to participate in all processes and decisions affecting his
interest and the child‘s views shall be taken into consideration with due regard to the age and maturity of the
child. Children‘s right to be heard shall include creation of developmentally appropriate tools and processes
of interacting with the child, promoting children‘s active involvement in decisions regarding their own lives
and providing opportunities for discussion and debate.
Principle of best interest
All decisions regarding the child shall be based on the primary consideration that they are in the best
interest of the child and to help the child to develop full potential. Children differ from adults in their physical
and psychological development and their emotional and educational needs. Such differences constitute the
basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons
for a separate juvenile justice system and require a different treatment for children. The protection of the best
interests of the child means, for instance, that the traditional objectives of criminal justice, such as repres-
sion/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offend-
ers.
Principle of family responsibility
In a family, a child is introduced to emotions like love and security. The social values and cultural
aspects of the community are inculcated in the child within the family background i.e. the primary responsi-
bility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster
parents, as the case may be. Though many functions of family like education, health, recreation etc. are being
taken up by other social institutions, the family retains its importance as a constituent entity and building block
of all societies and communities. Thus, the principle of family responsibility plays a vital role in the admin-
istration of juvenile justice as an informal care and all authorities functioning under the JJA should take all
the necessary decisions of the child with the active involvement of the family of the children, who are in
conflict with law.

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Principle of safety
All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or
maltreatment while in contact with the care and protection system, and thereafter. It also mandates that the
state shall not use restrictive measures in the name of safety of the child.
Positive measures
All resources are to be mobilized including those of family and community, for promoting the well -
being, facilitating development of identity and providing an inclusive and enabling environment, to reduce
vulnerabilities of children and the need for intervention under this Act. The term positive measures include
the - avenues for health, education, relationships, livelihoods, leisure, creativity and play. The Principle wants
to achieve the objective of facilitation in establishing the personal identity of the child and to enable the child
to equip himself to achieve the developments in all the processes relating to the individual growth.
Principle of non-stigmatizing semantics
Adversarial or accusatory words are not to be used in the processes pertaining to child.
Principle of non-waiver of rights
No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting
on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount
to waiver.
Principle of equality and non-discrimination
There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth,
disability, health, status, race, religion, cultural practices, work, activity or behaviour of the child in conflict
with law or that of his parents or guardians, or the civil and political status of the child. This principle also
includes that equality of access, opportunity and treatment shall be provided to every child.
Principle of right to privacy and confidentiality
Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the
judicial process. In other words, no report in any newspaper, magazine, news - sheet or audio - visual media
or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose
the name, address or school or any other particular, which may lead to the identification of a child in conflict
with law or a child in need of care and protection or a child victim or witness of a crime. No staff/stakeholder
should divulge/ disclose any details to any one regarding any case of CNCP ( Child in Need of Care and
Protection) or CCL (Children in Conflict with Law ) or identification of the same .

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Principle of institutionalization as a measure of last resort
Deprivation of liberty has negative consequences for the child‘s harmonious development and seriously
hampers his/her reintegration in society. Deprivation of liberty, including arrest, detention and imprisonment,
should be used only as a measure of last resort and for the shortest appropriate period of time, so that the
child‘s right to development is fully respected and ensured. A child shall be placed in institutional care as a
step of last resort after making a reasonable inquiry. The principle objective of institutionalization and
detention in the juvenile justice system should be to ensure that the offender is free of criminal behaviour as
soon as possible.
Principle of repatriation and restoration
Every child in the juvenile justice system s hall have the right to be re - united with his family at the earliest
and to be restored to the same socio - economic and cultural status that he was in, before coming under the
purview of this Act, unless such restoration and repatriation is not in his best interest. (This principle should
be read alongside of principle of family responsibility).
Principle of fresh star
While children who have offended must be held accountable for their action, every child has the capacity to
change for the better and must h ave a second chance - a right to a fresh start. The principle of fresh start
signifies a new beginning in the life of the child in conflict with law. All past records of any child under the
Juvenile Justice system should be erased except in special circumstances.
Principle of diversion
Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be
promoted unless it is in the best interest of the child or the society as a whole.
Principles of natural justice
Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against
bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.
Difference between Juvenile and Child
Generally, a “child ”mean a person who has not attain the age of 18 years and is not mature to
understand that what is right and wrong. In modern era, the penal laws of most countries have adopted the
principle of ‘doli incapex’, which means of knowing that act there are committing is a crime. The penal laws
also states that Only child between the age of seven to twelve age can be convicted, provided that, the act they
have committed is a heinous crime and they have knowledge and has attained the sufficient knowledge to
understand the consequences of their act. ]

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A person under the age of full legal obligation and responsibility is a minor or a person who is below the legal
age of eighteen years is minor. A child being accused of a crime is not tried as an adult and is sent to Child
Care Centre whereas juvenile is a person between the age group of sixteen and eighteen years. A young person
who is been accused of crime is a juvenile offender and is tried as adult in court proceedings. In general sense
both the term has same meaning but however difference lies in context of implications in the eyes of law.
Minor implies young and teen persons whereas juvenile either indicates immature person or young offenders.
Norms in International Law- Juvenile Justice

The General Assembly of the United Nations adopted the Convention on the Rights of the Child on
20th November, 1989 which prescribe a set of standard to be adhered to by all the States parties in securing
the best interest of the child. The International instruments and conventions have contributed considerably to
the issue of child rights and prevention of child abuse. The International bodies like United Nations and
UNICEF have always paid more emphasis on the development of Child. Following are the International
Instruments and Conventions that are signed by all the States of UN in order to protect the rights of Children
Major human rights treaties, international criminal law documents and other instruments recognize
that juvenile suspects need to be treated distinctly within any criminal investigation or prosecution. Juvenile
justice is a sensitive area of law dealing with the rights and protection of children. Therefore numerous
amounts of legislation have been adopted at all levels, be it national or international. Juvenile justice is a realm
which deals with various issues including the liberty and behavioral aspects of a juvenile.
The following are some of the International covenants dealing with the International juvenile system:
International Covenant on Civil and Political Rights, 1966 states -“5. Sentence of death shall not be im-
posed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant
women.”
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 also
known as the Beijing rules, was adopted on 29 November 1985 for protecting the wellbeing of children.
The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 also known as
the Havana rules, lays down the standard for the management of the juvenile justice system.
The United Nations Convention on the Rights of the Child (CRC), 1989 provides for the protection of
children by ensuring the rights available to them.
The United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 also known as the Ri-
yadh guidelines, provides for the prevention of juvenile delinquency.

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The United Nations Guidelines for Action on Children in the Criminal Justice System, 1997 also known
as the Vienna guidelines, were adopted for the protection of children and it was addressed not only to the
states, but also NGO's and media.
The International Juvenile Justice Observatory was formed in Brussels in 2002, to encourage global
juvenile justice and to tackle the issues relating to juvenile delinquency and justice issues.
Therefore the above mentioned International instruments have taken adequate measures for the protection,
and well-being of juveniles, and make it an obligation on the states to enact legislation conforming to such
recommendations and policies.
The fine line between the commission of offences between an adult and a juvenile is now well accepted
and recognized. Almost all the countries have provided for separate laws relating to the acts committed by
juveniles, and it is necessary for the better administration of the State. Therefore, juvenile justice covers all
the spheres of a juvenile’s life and is not restricted to a particular set of regulations.
Juvenile Justice and Constitution of India
The Constitution of India is consider as the fundamental law of India. Constitution provides rights and
duties of citizens. It also provides provision for the working of the government machineries. Constitution in
Part III has provided Fundamental Rights for its citizens in the same manner in its Part IV it has provided
Directive Principles of State Policies (DPSP) which acts as general guidelines in framing government policies.
Constitution has provided some basic rights and provisions especially for the welfare of children.
Constitutional provisions:
Article 21A Right to free and compulsory elementary education for all the children under the age of 6
to 14 years.
Article 24 Right to be protected from any hazardous employment under the age of fourteen age.
Article 39(e) Right to be protected from being abused in any form by an adult.
Article 39 Right to be protected from human trafficking and forced bonded labour system
Article 47 Right to be provided with good nutrition and proper standard of living.
Article 15(3) The special powers to State to make any special laws for the upliftment and the betterment
of children and women.

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Juvenile Justice Act, 2015
The aims to consolidate the laws relating to children alleged and found to be in conflict with law and children
in need of care and protection by catering and considering their basic needs through proper care & protection,
development, treatment, social- integration, by adopting a child friendly approach in the adjudication and
disposal of matters in the best interest of children. The act also focuses on rehabilitation of juvenile offenders
through various child care houses and institutions.
Changes brought after Nirbhaya’s case

New Act classifies offences. A 'heinous offence' is offence with minimum punishment of seven years of
imprisonment or more. A 'serious offence' are offences with three to seven years of imprisonment and a 'petty
offence' is with a less than three year imprisonment. It treats all the children below 18 years equally.
The JJB will conduct a preliminary inquiry of a crime committed by a child within a specified time period
and decides whether he should be sent to rehabilitation center or sent to a children’s court to be tried as an
adult. The board can take the help of psychologists and psycho-social workers and other experts to take the
decision. Such an inquiry is to be completed within a period of four months from the date of first production
of the child before the Board, unless the period is extended, for a maximum period of two more months by the
Board, having regard to the circumstances of the case and after recording the reasons in writing for such
extension.
(Sec 19 of new Act) The Children’s Court to Decide the aspect as to whether the child is to be tried as an adult
if:-
 Age group of child is 16-18
 Committed heinous crime having minimum imprisonment of more than seven years
 Or, who commits a serious offence, may be tried as an adult if he is apprehended after the age of 21
years.
 The Board on inquiry and assessment of child of his mental and physical capacity to commit such
offence, ability to understand consequences of such offence and circumstances in which he allegedly
committed an offence

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Juvenile Justice Board
Who comprises of a JJB? (Chapter 3, S.4 (2))

There shall be a constitution of Board for the purpose of inquiry and hearing in the matters of juvenile
in conflict with law.
The Board shall consist of

1. A Principle Magistrate – this must be a Metropolitan Magistrate / Judicial Magistrate First Class with at
least three years’ experience;
2. A female social worker having qualifications specified under the Rules;
3. A social worker (whether male or female) having qualifications specified under the Rules;
The social worker members shall be appointed by the State Government on the recommendations of
the Selection Committee constituted under rule 87 of Juvenile Justice (Care and Protection of Children)
Model Rules, 2016. The social worker members shall not be less than thirty-five years of age and shall have
at least seven years of experience of working with children in the field of education, health, or welfare
activities, or should be a practicing professional with a degree in child psychology or psychiatry or soci-
ology or in the field of law. Those having clear black-marks in their record (dismissal from service / offence
against children) cannot considered for positions on the JJB.
As far as possible, the two social worker members so selected for a Board shall be from different fields.
All members of the Board including the Principal Magistrate, shall be given induction training and sensitisa-
tion within a period of sixty days from the date of appointment.
If there is any difference of opinion between them, the majority view prevails. But, if there is no
majority, then the views of the Principal Magistrate take precedence.
Special Procedure of Juvenile Justice Board
The Act has provided the procedure against the juvenile offender. Following are the main special procedure.
1. The proceedings cannot be initiated on a complaint registered by the police or citizen. The hearing
must be informal and should be strictly confidential.
2. The offenders should be kept under Observation Home after detention.
3. The trial of juvenile in conflict with law shall be conducted by Lady Magistrate.
4. Child in conflict with law may be produced before an individual member of the Board, when Board
is not sitting.

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Eligibility of Members. (S.4(4))
No person shall be eligible for selection as a member of the Board, if he –
I. has any past record of violation of human rights or child rights;
II. has been convicted of an offence involving moral turpitude, and such conviction has not been re-
versed or has not been granted full pardon in respect of such offence;
III. has been removed or dismissed from service of the Central Government or a State Government or an
undertaking or corporation owned or controlled by the Central Government or a State Government;
IV. has ever indulged in child abuse or employment of child labour or any other violation of human
rights or immoral act.
Term of Members of the Board (S.4(6))
I. The term of the social worker member of the Board shall not be more than for a period of three years
from the date of appointment.
II. A social worker member of the Board shall be eligible for appointment of maximum of two terms,
which shall not be continuous.
III. The members may resign at any time, by giving one month's notice in writing to the State Govern-
ment.
Any vacancy in the Board shall be filled by appointment of another person from the panel of names prepared
by the Selection Committee.
Sittings of the Board
(1) The Board shall hold its sittings in the premises of an observation home or at a place in proximity to
the observation home or, at a suitable premise in any Child Care Institution meant for children in
conflict with law run under the Act, and in no circumstances, shall the Board operate from within any
court or jail premises.
A Board may act notwithstanding the absence of any member of the Board, and no order passed by the Board
shall be invalid by the reason only of the absence of any member during any stage of proceedings:
Provided that there shall be at least two members including the Principal Magistrate present at the time
of final disposal of the case or in making an order under sub-section (3) of section 18 deciding that a child
should be tried by regular courts.

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(2) The Board shall ensure that no person(s) un-connected with the case remains present in the room when
the case is in progress.
(3) The Board shall ensure that only those person(s), in the presence of whom the child feels comfortable,
are allowed to remain present during the sitting.
(4) The Board shall hold its sittings in a child-friendly premises which shall not look like a court room in
any manner and the sitting arrangement should be such to enable the Board to interact with the child
face to face.
(5) While communicating with the child, the Board shall use child friendly techniques through its conduct
and shall adopt a child friendly attitude with regard to body language, facial expression, eye contact,
intonation and volume of voice while addressing the child.
(6) The Board shall not sit on a raised platform and there shall be no barriers, such as witness boxes or
bars between the Board and the child.
(7) The Board shall sit on all working days for a minimum of six hours commensurate with the working
hours of a Magistrate Court, unless the case pendency is less in a particular district and the State Gov-
ernment issues an order in this regard, or the State Government may, by notification in the Official
Gazette constitute more than one Board in a district after giving due consideration to the pendency of
the cases, area or terrain of the district, population density or any other consideration.
(8) When the Board is not sitting, a child in conflict with law may be produced before an individual
member of the Board. For the said purpose, one member of the Board shall always be available or
accessible to take cognizance of any matter of emergency and necessary directions required to deal
with the emergency situation shall be given by such member to the Special Juvenile Police Unit or the
local police of the district.
(9) The social worker members of the Board shall be paid not less than Rs. 1500/- per sitting which shall
include sitting allowance, travel allowance and any other allowance, as the State Government may
prescribe
(10)The Board shall be provided infrastructure and staff by the State Government

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Placement of person, who cease to be a child during process of inquiry. (Section 5)
Where an inquiry has been initiated in respect of any child under this Act, and during the course of
such inquiry, the child completes the age of eighteen years, then, notwithstanding anything contained in
this Act or in any other law for the time being in force, the inquiry may be continued by the Board and orders
may be passed in respect of such person as if such person had continued to be a child.
Placement of persons, who committed an offence, when person was below the age of eighteen years.
(Section 6)
(1) Any person, who has completed eighteen years of age, and is apprehended for committing an offence when
he was below the age of eighteen years, then, such person shall, subject to the provisions of this section, be
treated as a child during the process of inquiry.
(2) The person referred to in sub-section (1), if not released on bail by the Board shall be placed in a place of
safety during the process of inquiry.
(3) The person referred to in sub-section (1) shall be treated as per the procedure specified under the provisions
of this Act.
Termination (S.4 (7))
The appointment of any member of the Board, except the Principal Magistrate, may be terminated after hold-
ing an inquiry by the State Government, if he–
i has been found guilty of misuse of power vested under this Act; or
ii fails to attend the proceedings of the Board consecutively for three months without any valid reason;
or
iii fails to attend less than three-fourths of the sittings in a year; or
iv becomes ineligible under sub-section (4) during his term as a member.
Powers, functions and responsibilities of the Board (Section 8)
The JJB has all powers of a normal magistrate court. In addition to this, there are several functions and
responsibilities that the JJB is conferred with.

42
These are aimed towards making the proceedings least intimidating and as child-friendly as possible. So, the
JJB works to ensure informed consent and participation of the child and family at each stage. It has an inter-
preter or translator, and assured legal aid for children in need.
The other set of functions are aimed to ensure the protection of children. The JJB can conduct jail visits
to check if children are accidentally lodged there. It must inspect the facilities for children at least once a
month to check on their upkeep. Similarly, to the magistrate, the JJB can also order the lodging of an FIR for
offences committed against children.
The Board constituted for any district shall have the power to deal exclusively with all the proceedings under
the Act, relating to children in conflict with law, in the area of jurisdiction of such Board. The powers conferred
on the Board by or under the Act may also be exercised by the High Court and the Children’s Court, when the
proceedings come before them under section 19 or in appeal, revision or otherwise.
The functions and responsibilities of the Board shall include
(a) ensuring the informed participation of the child and the parent or guardian, in every step of the process;
(b) ensuring that the child’s rights are protected throughout the process of apprehending the child, inquiry,
aftercare and rehabilitation;
(c) ensuring availability of legal aid for the child through the legal services institutions;
(d) wherever necessary the Board shall provide an interpreter or translator, having such qualifications,
experience, and on payment of such fees as may be prescribed, to the child if he fails to understand the
language used in the proceedings;
(e) directing the Probation Officer, or in case a Probation Officer is not available to the Child Welfare
Officer or a social worker, to undertake a social investigation into the case and submit a social inves-
tigation report within a period of fifteen days from the date of first production before the Board to
ascertain the circumstances in which the alleged offence was committed;
(f) adjudicate and dispose of cases of children in conflict with law in accordance with the process of
inquiry specified in section 14;
(g) transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated
to be in need of care and protection at any stage, thereby recognising that a child in conflict with law
can also be a child in need of care simultaneously and there is a need for the Committee and the Board
to be both involved;

43
(h) disposing of the matter and passing a final order that includes an individual care plan for the child’s
rehabilitation, including follow up by the Probation Officer or the District Child Protection Unit or a
member of a non-governmental organisation, as may be required;
(i) conducting inquiry for declaring fit persons regarding care of children in conflict with law;
(j) conducting at least one inspection visit every month of residential facilities for children in conflict with
law and recommend action for improvement in quality of services to the District Child Protection Unit
and the State Government;
(k) order the police for registration of first information report for offences committed against any child in
conflict with law, under this Act or any other law for the time being in force, on a complaint made in
this regard;
(l) order the police for registration of first information report for offences committed against any child in
need of care and protection, under this Act or any other law for the time being in force, on a written
complaint by a Committee in this regard;
(m) Conducting regular inspection of jails meant for adults to check if any child is lodged in such jails and
take immediate measures for transfer of such a child to the observation home; and
(n) any other function as may be prescribed.
Meaning of Child and its classification
According to sub- section 12 of Section 2 of The Juvenile (Care and Protection) Act, 2015 a “child”
means a person who has not completed eighteen years of age. The Act classifies the term “Child” into two
categories: –
1. Child in conflict with law and
2. Child in need of care and protection
The child who has committed an offence and he or she is under the age of 18 years on the date of commission
of the offence is basically called as “child in conflict with law”

44
Children in Conflict with the Law
The term 'children in conflict with the law' refers any person below the age of 18 who has come in
contact with the justice system as a result of committing a crime or being suspected of committing a crime.
Most children in conflict with the law have committed petty crimes such as vagrancy, truancy, begging or
alcohol use. Some have committed more serious offenses. Some children are coerced into crime by adults who
use them as they know they cannot be tried as adults. Often prejudice, stereotyping and discrimination brings
children into conflict with law without a crime being committed.
Section 2(13) “child in conflict with law means a child who is alleged or found to have committed an
offence and who has not completed eighteen years of age on the date of commission of such offence.
Children represent about 38 to 40% of India’s total population and India has highest children in the
world. India has a National Policy for Children proclaim children to be a national asset. Yet, Indians children
continue to be in difficult circumstances. According to National Crimes Records Bureau report of 2015, a rate
of crime under cases of juveniles in conflict with law has been increased from 1.7 to 2.5% since 2005 to 2015.
There has been 0.8% increase in cases registered under IPC against Juveniles in conflict with the law during
2015.
Normally, if a person is accused or arrested or detained in India, the regular criminal procedure under the Code
of Criminal Procedure Code 1973 applies. An accused person can be kept in custody for months. The code
also explains how persons would face trial to decide guilt or innocence.
The JJ Act ensures that such harsh procedures do not apply to children. So, for Children in Conflict with
Law, it has created an alternate, more lenient and child-friendly setup. The setup is largely controlled by the
Juvenile Justice Board, and ensures that children are not kept together in regular jails with regular offenders.
It also ensures children are re-integrated into society after having completed the terms of their punishment.
Procedure in relation to children in conflict with law
1. Apprehension of child alleged to be in conflict with law.
As soon as a child alleged to be in conflict with law is apprehended by the police, such child shall be
placed under the charge of the special juvenile police unit or the designated child welfare police officer,
who shall produce the child before the Board without any loss of time but within a period of twenty-four
hours of apprehending the child excluding the time necessary for the journey, from the place where such child
was apprehended: Provided that in no case, a child alleged to be in conflict with law shall be placed in a
police lockup or lodged in a jail.

45
The State Government shall make rules consistent with this Act, —
(i) to provide for persons through whom (including registered voluntary or nongovernmental organisa-
tions) any child alleged to be in conflict with law may be produced before the Board;
(ii) to provide for the manner in which the child alleged to be in conflict with law may be sent to an
observation home or place of safety, as the case may be.
2. Bail to a person who is apparently a child alleged to be in conflict with law.
(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-
bailable offence, is apprehended or detained by the police or appears or brought before a Board, such
person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any
other law for the time being in force, be released on bail with or without surety or placed under the
supervision of a probation officer or under the care of any fit person
Provided that such person shall not be so released if there appears reasonable grounds for
believing that the release is likely to bring that person into association with any known criminal or
expose the said person to moral, physical or psychological danger or the person’s release would
defeat the ends of justice, and the Board shall record the reasons for denying the bail and circum-
stances that led to such a decision
(2) When such person having been apprehended is not released on bail under subsection (1) by the of-
ficer-in-charge of the police station, such officer shall cause the person to be kept only in an obser-
vation home in such manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order
sending him to an observation home or a place of safety, as the case may be, for such period during
the pendency of the inquiry regarding the person, as may be specified in the order.
Bail grant to juvenile
In normal course, a juvenile is entitled to bail, notwithstanding gravity of the crime. His bail can be refused
only when there are reasonable grounds for believing that his release is likely to bring into association with
any known criminal or expose his moral, physical or psychological danger or that his release would defeat
the ends of justice. The language in Section 12 of the Act that “notwithstanding anything contained in the
Code of Criminal Procedure, 1973, or any other law for the time being in force ” mandates that this Section is

46
having overriding effect and the juvenile accused shall be released. Since the juvenile in conflict with law is
entitled to be released on bail, he is also entitled to get interim bail.
It may be pointed out that the Hon'ble Supreme Court has held in the case of Sukhwant Sing & ors. Vs.
State of Punjab , That when there is power to grant bail, there is inherent power to the court concerned to
grant interim bail to the person, pending final disposal of the bail application and it is in the discretion of the
concerned Court to grant interim bail. The same is applicable to the Juvenile Justice Board. When pending
final disposal of the application, juvenile may be released on interim bail.
3. Information to parents, guardian or probation officer.
(1) Where a child alleged to be in conflict with law is apprehended, the officer designated as Child Wel-
fare Police Officer of the police station, or the special juvenile police unit to which such child is
brought, shall, as soon as possible after apprehending the child, inform —
(i) the parent or guardian of such child, if they can be found, and direct them to be present at
the Board before which the child is produced; and
(ii) the probation officer, or if no probation officer is available, a Child Welfare Officer, for
preparation and submission within two weeks to the Board, a social investigation report con-
taining information regarding the antecedents and family background of the child and other
material circumstances likely to be of assistance to the Board for making the inquiry.
(2) Where a child is released on bail, the probation officer or the Child Welfare Officer shall be in-
formed by the Board.
4. Inquiry by Board regarding child in conflict with law.
(1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an
inquiry in accordance with the provisions of this Act and may pass such orders in relation to such
child as it deems fit under sections 17 and 18 of this Act.
(2) The inquiry under this section shall be completed within a period of four months from the date of
first production of the child before the Board, unless the period is extended, for a maximum period
of two more months by the Board, having regard to the circumstances of the case and after recording
the reasons in writing for such extension.
(3) A preliminary assessment in case of HEINOUS OFFENCES under section 15 shall be disposed of
by the Board within a period of three months from the date of first production of the child before
the Board.

47
(4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the
extended period, the proceedings shall stand terminated:
Provided that for serious or heinous offences, in case the Board requires further extension
of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate or, as
the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded in writing.
(5) The Board shall take the following steps to ensure fair and speedy inquiry, namely: —
(a) at the time of initiating the inquiry, the Board shall satisfy itself that the child in conflict with
law has not been subjected to any ill-treatment by the police or by any other person, includ-
ing a lawyer or probation officer and take corrective steps in case of such ill-treatment;
(b) in all cases under the Act, the proceedings shall be conducted in simple manner as possible and
care shall be taken to ensure that the child, against whom the proceedings have been instituted,
is given child-friendly atmosphere during the proceedings;
(c) every child brought before the Board shall be given the opportunity of being heard and par-
ticipate in the inquiry;
(d) cases of petty offences, shall be disposed of by the Board through summary proceedings, as
per the procedure prescribed under the Code of Criminal Procedure, 1973;
(e) inquiry of serious offences shall be disposed of by the Board, by following the procedure, for
trial in summons cases under the Code of Criminal Procedure, 1973;
(f) inquiry of heinous offences, —
(i) for child below the age of sixteen years as on the date of commission of an offence shall
be disposed of by the Board under clause (e);
(ii) for child above the age of sixteen years as on the date of commission of an offence shall
be dealt with in the manner prescribed under section 15.
5. Preliminary assessment into heinous offences by Board.
(1) In case of a heinous offence alleged to have been committed by a child, who has completed or is
above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his
mental and physical capacity to commit such offence, ability to understand the consequences of the
offence and the circumstances in which he allegedly committed the offence, and may pass an order in
accordance with the provisions of subsection (3) of section 18:

48
Provided that for such an assessment, the Board may take the assistance of experienced psy-
chologists or psycho-social workers or other experts.
Explanation. —For the purposes of this section, it is clarified that preliminary assessment is not a trial, but
is to assess the capacity of such child to commit and understand the consequences of the alleged offence
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the
Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under
the Code of Criminal Procedure, 1973:
Provided that the order of the Board to dispose of the matter shall be appealable under sub-
section (2) of section 101; Provided further that the assessment under this section shall be completed
within the period specified in section 14.
6. Orders regarding a child NOT found to be in conflict with law.
(1) Where a Board is satisfied on inquiry that the child brought before it has not committed any offence,
then notwithstanding anything contrary contained in any other law for the time being in force, the
Board shall pass order to that effect.
(2) In case it appears to the Board that the child referred to in sub-section (1) is in need of care and
protection, it may refer the child to the Committee with appropriate directions.
7. Orders regarding child FOUND TO BE in conflict with law
(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence,
or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then,
notwithstanding anything contrary contained in any other law for the time being in force, and based
on the nature of offence, specific need for supervision or intervention, circumstances as brought
out in the social investigation report and past conduct of the child, the Board may,
if it so thinks fit,—
(a) allow the child to go home after advice or admonition by following appropriate inquiry and
counselling to such child and to his parents or the guardian;
(b) direct the child to participate in group counselling and similar activities
(c) order the child to perform community service under the supervision of an organisation or in-
stitution, or a specified person, persons or group of persons identified by the Board;

49
(d) order the child or parents or the guardian of the child to pay fine: Provided that, in case the
child is working, it may be ensured that the provisions of any labour law for the time being in
force are not violated;
(e) direct the child to be released on probation of good conduct and placed under the care of any
parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or
without surety, as the Board may require, for the good behaviour and child’s well-being for any
period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under the care and su-
pervision of any fit facility for ensuring the good behaviour and child’s well-being for any pe-
riod not exceeding three years;
(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it
thinks fit, for providing reformative services including education, skill development, counsel-
ling, behaviour modification therapy, and psychiatric support during the period of stay in the
special home: Provided that if the conduct and behaviour of the child has been such that, it
would not be in the child’s interest, or in the interest of other children housed in a special home,
the Board may send such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders
to—
(i) attend school; or
(ii) attend a vocational training centre; or
(iii)attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a specified place; or
(v) undergo a de-addiction programme
(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for
trial of the said child as an adult, then the Board may order transfer of the trial of the case to the
Children’s Court having jurisdiction to try such offences.
8. Order that may not be passed against a child in conflict with law.
No child in conflict with law shall be sentenced to death or for life imprisonment without the pos-
sibility of release, for any such offence, either under the provisions of this Act or under the provisions of the
Indian Penal Code or any other law for the time being in force.

50
CHILD WELFARE COMMITTEE
Composition and Qualifications of Members of the Committee
(1) There shall be one or more Committees in each district to be constituted by the State Government
through a notification in the Official Gazette.
(2) The Committee shall consist of a Chairperson, and four other members as the State Government
may think fit to appoint, of whom atleast one shall be a woman and another, an expert on the mat-
ters concerning children.
(3) The Chairperson and members of the Committee shall be appointed by the State Government on the
recommendation of the Selection Committee under rule 87 of these rules.
(4) The Chairperson and the members shall be above the age of thirty-five years and shall have a mini-
mum of seven years of experience of working with children in the field of education, health, or
welfare activities, or should be a practicing professional with a degree in child psychology or psychi-
atry or social work or sociology or human development or in the field of law or a retired judicial of-
ficer.
(5) A member of the Committee shall be eligible for appointment of maximum of two terms, which
shall not be continuous. No person shall be appointed for a period of more than three years as a
member of the Committee.
(6) All persons, on selection shall mandatorily be given training under rule 89 within a period of sixty
days from the date of appointment.
(7) The Chairperson and the members may resign at any time by giving one month's notice in writing
to the State Government.
Termination of members
The appointment of any member of the Committee shall be terminated by the State Government after
making an inquiry, if—
(i) he has been found guilty of misuse of power vested on him under this Act;
(ii) he has been convicted of an offence involving moral turpitude and such conviction
has not been reversed or he has not been granted full pardon in respect of such offence;

51
(iii)he fails to attend the proceedings of the Committee consecutively for three months without any
valid reason or he fails to attend less than three-fourths of the sittings in a year.
The District Magistrate shall be the grievances redressal authority for the Child Welfare Committee
and anyone connected with the child, may file a petition before the District Magistrate, who shall consider and
pass appropriate orders.
Procedure in relation to Committee. (S.28)
(1) The Committee shall meet at least twenty days in a month and shall observe such rules and procedures
with regard to the transaction of business at its meetings, as may be prescribed.
(2) A visit to an existing child care institution by the Committee, to check its functioning and well-being
of children shall be considered as a sitting of the Committee.
(3) A child in need of care and protection may be produced before an individual member of the Committee
for being placed in a Children’s Home or fit person when the Committee is not in session.
(4) In the event of any difference of opinion among the members of the Committee at the time of taking
any decision, the opinion of the majority shall prevail but where there is no such majority, the
opinion of the Chairperson shall prevail.
(5) Subject to the provisions of sub-section (1), the Committee may act, notwithstanding the absence of
any member of the Committee, and no order made by the Committee shall be invalid by reason only
of the absence of any member during any stage of the proceeding: Provided that there shall be at least
three members present at the time of final disposal of the case.
Powers of Committee.
(1) The Committee shall have the authority to dispose of cases for the care, protection, treatment, de-
velopment and rehabilitation of children in need of care and protection, as well as to provide for
their basic needs and protection.
(2) Where a Committee has been constituted for any area, such Committee shall, notwithstanding anything
contained in any other law for the time being in force, but save as otherwise expressly provided in this
Act, have the power to deal exclusively with all proceedings under this Act relating to children in need
of care and protection.

52
Functions and responsibilities of Committee.
The functions and responsibilities of the Committee shall include—
(i) taking cognizance of and receiving the children produced before it;
(ii) conducting inquiry on all issues relating to and affecting the safety and wellbeing of the children under
this Act;
(iii) directing the Child Welfare Officers or probation officers or District Child Protection Unit or non-gov-
ernmental organisations to conduct social investigation and submit a report before the Committee;
(iv) conducting inquiry for declaring fit persons for care of children in need of care and protection;
(v) directing placement of a child in foster care;
(vi) ensuring care, protection, appropriate rehabilitation or restoration of children in need of care and protec-
tion, based on the child’s individual care plan and passing necessary directions to parents or guardians or
fit persons or children’s homes or fit facility in this regard;
(vii) selecting registered institution for placement of each child requiring institutional support, based on the
child’s age, gender, disability and needs and keeping in mind the available capacity of the institution;
(viii) conducting at least two inspection visits per month of residential facilities for children in need of care
and protection and recommending action for improvement in quality of services to the District Child Pro-
tection Unit and the State Government;
(ix) certifying the execution of the surrender deed by the parents and ensuring that they are given time to
reconsider their decision as well as making all efforts to keep the family together;
(x) ensuring that all efforts are made for restoration of abandoned or lost children to their families following
due process, as may be prescribed;
(xi) declaration of orphan, abandoned and surrendered child as legally free for adoption after due inquiry;
(xii) taking suo moto cognizance of cases and reaching out to children in need of care and protection, who
are not produced before the Committee, provided that such decision is taken by at least three members;
(xiii) taking action for rehabilitation of sexually abused children who are reported as children in need of
care and protection to the Committee by Special Juvenile Police Unit or local police, as the case may be,
under the Protection of Children from Sexual Offences Act, 2012;
(xiv) dealing with cases referred by the Board under sub-section (2) of section 17;
(xv) co-ordinate with the police, labour department and other agencies involved in the care and protection
of children with support of the District Child Protection Unit or the State Government;

53
(xvi) in case of a complaint of abuse of a child in any child care institution, the Committee shall conduct an
inquiry and give directions to the police or the District Child Protection Unit or labour department or
childline services, as the case may be;
(xvii) accessing appropriate legal services for children;
(xviii) such other functions and responsibilities, as may be prescribed.
CHILDREN IN NEED OF CARE AND PROTECTION
The children in need of care and protection include vulnerable children like street children, orphaned,
abandoned, abused and destitute children;, working children, child labourers, trafficked children, mentally
ill children, children affected or infected by HIV/Aids; and children who are victims of conflict and disaster
situations. These children have committed no offence but they are victims of their circumstances or situa-
tions. Some other categories of children who need special assistance are migrants, those affected by armed
conflict, and victims of natural calamities like floods or cyclones. These are children in especially difficult
circumstances and need to be protected from all kinds of abuse, neglect and exploitation.
Section 2 (14) of the Act defines the expression "child in need of care and protection"means a child-
(i) who is found without any home or settled place of abode and without any ostensible means of sub-
sistence; or
(ii) who is found working in contravention of labour laws for the time being in force or is found begging,
or living on the street; or
(iii)who resides with a person (whether a guardian of the child or not) and such person-
(a) has injured, exploited, abused or neglected the child or has violated any other law for the time
being in force meant for the protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and there is reasonable likelihood of the
threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and there is a reasonable
likelihood of the child in question being killed, abused, exploited or neglected by that person;
or
(iv) who is mentally ill or mentally or physically challenged or suffering from terminal or incurable dis-
ease, having no one to support or look after or having parents or guardians unfit to take care, if found
so by the Board or the Committee; or
(v) who has a parent or guardian and such parent or guardian is found to be unfit or Incapacitated, by
the Committee or the Board, to care for and protect the safety and well- being of the child; or

54
(vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned
or surrendered him; or
(vii) who is missing or run away child, or whose parents cannot be found after making reasonable
inquiry in such manner as may be prescribed; or
(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of
sexual abuse or illegal acts; or
(ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking or
(x) who is being or is likely to be abused for unconscionable gains; or
(xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity or
(xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents,
family members, guardian and any other persons are likely to be responsible for solemnisation of
such marriage.
Procedures in Relation to ‘Children in need of care and protection’
Production before Committee
By section 31(1) of the act Any child in need of care and protection may be produced before the
Committee by any of the following persons, namely: —
(i) any police officer or special juvenile police unit or a designated Child Welfare Police Officer or any officer
of District Child Protection Unit or inspector appointed under any labour law for the time being in force;
(ii) any public servant;
(iii) Childline Services or any voluntary or non-governmental organisation or any agency asmay be recog-
nised by the State Government;
(i) Child Welfare Officer or probation officer;
(ii) any social worker or a public spirited citizen;
(iii) by the child himself; or
(iv) any nurse, doctor or management of a nursing home, hospital or maternity home: Provided that
the child shall be produced before the Committee without any loss of time but within a period
of twenty-four hours excluding the time necessary for the journey.

55
(2) The State Government may make rules consistent with this Act, to provide for the manner of submitting
the report to the Committee and the manner of sending and entrusting the child to children’s home or fit
facility or fit person, as the case may be, during the period of the inquiry.
Mandatory reporting regarding a child found separated from guardian.
(1) Any individual or a police officer or any functionary of any organisation or a nursing home or hospital or
maternity home, who or which finds and takes charge, or is handed over a child who appears or claims to be
abandoned or lost, or a child who appears or claims to be an orphan without family support, shall within
twenty-four hours (excluding the time necessary for the journey), give information to the Childline Services
or the nearest police station or to a Child Welfare Committee or to the District Child Protection Unit, or hand
over the child to a child care institution registered under this Act, as the case may be.
(2) The information regarding a child referred to in sub-section (1) shall be mandatorily uploaded on a portal
as may be specified by the Central Government or the Committee or the District Child Protection Unit or the
child care institution, as the case may be.
Offence of non-reporting
If information regarding a child as required under section 32 is not given within the period specified in the
said section, then, such act shall be regarded as an offence.
Penalty for non-reporting .
Any person who has committed an offence under section 33 shall be liable to imprisonment
up to six months or fine of ten thousand rupees or both.
Surrender of children.
(1) A parent or guardian, who for physical, emotional and social factors beyond their control, wishes to sur-
render a child, shall produce the child before the Committee.
(2) If, after prescribed process of inquiry and counselling, the Committee is satisfied, a surrender deed shall
be executed by the parent or guardian, as the case may be, before the Committee.
(3) The parents or guardian who surrendered the child, shall be given two months’ time to reconsider their
decision and in the intervening period the Committee shall either allow, after due inquiry, the child to be with

56
the parents or guardian under supervision, or place the child in a Specialised Adoption Agency, if he or she is
below six years of age, or a children’s home if he is above six years.
Inquiry.
36. (1) On production of a child or receipt of a report under section 31, the Committee shall hold an inquiry
in such manner as may be prescribed and the Committee, on its own or on the report from any person or
agency as specified in sub-section (2) of section 31, may pass an order to send the child to the children’s home
or a fit facility or fit person, and for speedy social investigation by a social worker or Child Welfare Officer
or Child Welfare Police Officer: Provided that
all children below six years of age, who are orphan, surrendered or appear to be abandoned shall be placed in
a Specialised Adoption Agency, where available.
(2) The social investigation shall be completed within fifteen days so as to enable the Committee to pass final
order within four months of first production of the child: Provided that for orphan, abandoned or surrendered
children, the time for completion of inquiry shall be as specified in section 38.
(3) After the completion of the inquiry, if Committee is of the opinion that the said child has no family or
ostensible support or is in continued need of care and protection, it may send the child to a Specialised Adop-
tion Agency if the child is below six years of age, children’s home or to a fit facility or person or foster family,
till suitable means of rehabilitation are found for the child, as may be prescribed, or till the child attains the
age of eighteen years: Provided that the situation of the child placed in a children’s home or with a fit facility
or person or a foster family, shall be reviewed by the Committee, as may be prescribed.
(4) The Committee shall submit a quarterly report on the nature of disposal of cases and pendency of cases to
the District Magistrate in the manner as may be prescribed, for review of pendency of cases.
(5) After review under sub-section (4), the District Magistrate shall direct the Committee to take necessary
remedial measures to address the pendency, if necessary and send a report of such reviews to the State Gov-
ernment, who may cause the constitution of additional Committees, if required: Provided that if the pendency
of cases continues to be unaddressed by the Committee even after three months of receiving such directions,
the State Government shall terminate the said Committee and shall constitute a new Committee.
(6) In anticipation of termination of the Committee and in order that no time is lost in constituting a new
Committee, the State Government shall maintain a standing panel of eligible persons to be appointed as mem-
bers of the Committee.
(7) In case of any delay in the constitution of a new Committee under sub-section (5), the Child Welfare
Committee of a nearby district shall assume responsibility in the intervening period.

57
Orders passed regarding a child in need of care and protection
(1) The Committee on being satisfied through the inquiry that the child before the Committee is a child in
need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare
Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass
one or more of the following orders, namely:—
(a) declaration that a child is in need of care and protection;
(b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare
Officer or designated social worker;
(c) placement of the child in Children’s Home or fit facility or Specialised Adoption Agency for the purpose
of adoption for long term or temporary care, keeping in mind the capacity of the institution for housing such
children, either after reaching the conclusion that the family of the child cannot be traced or even if traced,
restoration of the child to the family is not in the best interest of the child;
(d) placement of the child with fit person for long term or temporary care;
(e) foster care orders under section 44;
(f) sponsorship orders under section 45;
(g) directions to persons or institutions or facilities in whose care the child is placed, regarding care, protection
and rehabilitation of the child, including directions relating to immediate shelter and services such as medical
attention, psychiatric and psychological support including need-based counselling, occupational therapy or
behaviour modification therapy, skill training, legal aid, educational services, and other developmental activ-
ities, as required, as well asfollow-up and coordination with the District Child Protection Unit or State Gov-
ernment and other agencies;
(h) declaration that the child is legally free for adoption under section 38.
(2) The Committee may also pass orders for —
(i) declaration of fit persons for foster care;
(ii) getting after care support under section 46 of the Act; or
(iii) any other order related to any other function as may be prescribed.

58
Procedure for declaring a child legally free for adoption.
By section 38. (1) of the act, In case of orphan and abandoned child, the Committee shall make all
efforts for tracing the parents or guardians of the child and on completion of such inquiry, if it is established
that the child is either an orphan having no one to take care, or abandoned, the Committee shall declare the
child legally free for adoption: Provided that such declaration shall be made within a period of two months
from the date of production of the child, for children who are up to two years of age and within four months
for children above two years of age: Provided further that notwithstanding anything contained in this regard
in any other law for the time being in force, no first information report shall be registered against any biological
parent in the process of inquiry relating to an abandoned or surrendered child under this Act.
By Sec. 38(2) In case of surrendered child, the institution where the child has been placed by the Committee
on an application for surrender, shall bring the case before the Committee immediately on completion of the
period specified in section 35, for declaring the child legally free for adoption
(3) Notwithstanding anything contained in any other law for the time being in force, a child of a mentally
retarded parents or a unwanted child of victim of sexual assault, such child may be declared free for adoption
by the Committee, by following the procedure under this Act.
(4) The decision to declare an orphan, abandoned or surrendered child as legally free for adoption shall be
taken by at least three members of the Committee.
(5) The Committee shall inform the State Agency and the Authority regarding the number of children declared
as legally free for adoption and number of cases pending for decision in the manner as may be prescribed,
every month.
Open shelter
Section 43 (1) The State Government may establish and maintain, by itself or through voluntary or non-gov-
ernmental organisations, as many open shelters as may be required, and such open shelters shall be registered
as such, in the manner as may be prescribed.
Section 43 (2) The open shelters referred to in sub-section (1) shall function as a community based facility for
children in need of residential support, on short term basis, with the objective of protecting them from abuse
or weaning them, or keeping them, away from a life on the streets.
Section 43 (3) The open shelters shall send every month information, in the manner as may be prescribed,
regarding children availing the services of the shelter, to the District Child Protection Unit and the Committee.

59
Foster care
Section 44(1) The children in need of care and protection may be placed in foster care, including group foster
care for their care and protection through orders of the Committee, after following the procedure as may be
prescribed in this regard, in a family which does not include the child’s biological or adoptive parents or in an
unrelated family recognised as suitable for the purpose by the State Government, for a short or extended period
of time.
Section 44 (2) The selection of the foster family shall be based on family’s ability, intent, capacity and prior
experience of taking care of children.
Section 44 (9) No child regarded as adoptable by the Committee shall be given for long-term foster care.
Sponsorship
Section 45 (1) The State Government shall make rules for the purpose of undertaking various programmes of
sponsorship of children, such as individual to individual sponsorship, group sponsorship or community spon-
sorship.
Section 45 (2) The criteria for sponsorship shall include,—
(i) where mother is a widow or divorced or abandoned by family;
(ii) where children are orphan and are living with the extended family;
(iii) where parents are victims of life threatening disease;
(iv) where parents are incapacitated due to accident and unable to take care of children both financially and
physically.
Section 45 (3) The duration of sponsorship shall be such as may be prescribed.
Section 45 (4) The sponsorship programme may provide supplementary support to families, to Children’s
Homes and to special homes to meet medical, nutritional, educational and other needs of the children, with a
view to improving their quality of life.
After care of children leaving child care institution
Section 46. Any child leaving a child care institution on completion of eighteen years of age may be provided
with financial support in order to facilitate child’s re-integration into the mainstream of the society in the
manner as may be prescribed.

60
Observation homes
Section 45 (1) The State Government shall establish and maintain in every district or a group of districts, either
by itself, or through voluntary or non-governmental organisations, observation homes, which shall be regis-
tered under section 41 of Act, for temporary reception, care and rehabilitation of any child alleged to be in
conflict with law, during the pendency of any inquiry under this Act.
Section 45(2) Where the State Government is of the opinion that any registered institution other than a home
established or maintained under sub-section (1), is fit for the temporary reception of such child alleged to be
in conflict with law during the pendency of any inquiry under this Act, it may register such institution as an
observation home for the purposes of this Act.
(3) The State Government may, by rules made under this Act, provide for the management and monitoring of
observation homes, including the standards and various types of services to be provided by them for rehabili-
tation and social integration of a child alleged to be in conflict with law and the circumstances under which,
and the manner in which, the registration of an observation home may be granted or withdrawn.
(4) Every child alleged to be in conflict with law who is not placed under the charge of parent or guardian and
is sent to an observation home shall be segregated according to the child’s age and gender, after giving due
consideration to physical and mental status of the child and degree of the offence committed.
Special homes.
Section 48(1) The State Government may establish and maintain either by itself or through voluntary or non-
governmental organisations, special homes, which shall be registered as such, in the manner as may be pre-
scribed, in every district or a group of districts, as may be required for rehabilitation of those children in
conflict with law who are found to have committed an offence and who are placed there by an order of the
Juvenile Justice Board made under section 18.
Section 48 (2) The State Government may, by rules, provide for the management and monitoring of special
homes, including the standards and various types of services to be provided by them which are necessary for
social re-integration of a child, and the circumstances under which, and the manner in which, the registration
of a special home may be granted or withdrawn.
Section 48 (3) The rules made under sub-section (2) may also provide for the segregation and separation of
children found to be in conflict with law on the basis of age, gender, the nature of offence committed by them
and the child’s mental and physical status.

61
Place of safety.
Section 49 (1) The State Government shall set up atleast one place of safety in a State registered under section
41, so as to place a person above the age of eighteen years or child in conflict with law, who is between the
age of sixteen to eighteen years and is accused of or convicted for committing a heinous offence.
Section 49 (2) Every place of safety shall have separate arrangement and facilities for stay of such children or
persons during the process of inquiry and children or persons convicted of committing an offence.
Section 49 (3) The State Government may, by rules, prescribe the types of places that can be designated as
place of safety under sub-section (1) and the facilities and services that may be provided therein.
Children’s Home.
Section 50 (1) The State Government may establish and maintain, in every district or group of districts, either
by itself or through voluntary or non-governmental organisations, Children’s Homes, which shall be registered
as such, for the placement of children in need of care and protection for their care, treatment, education, train-
ing, development and rehabilitation.
Section 50(2) The State Government shall designate any Children’s Home as a home fit for children with
special needs delivering specialised services, depending on requirement. (3) The State Government may, by
rules, provide for the monitoring and management of Children’s Homes including the standards and the nature
of services to be provided by them, based on individual care plans for each child.
Fit facility
Section 51(1) The Board or the Committee shall recognise a facility being run by a Governmental organisation
or a voluntary or non-governmental organisation registered under any law for the time being in force to be fit
to temporarily take the responsibility of a child for a specific purpose after due inquiry regarding the suitability
of the facility and the organisation to take care of the child in such manner as may be prescribed. Section 51(1)
Section 51(2) The Board or the Committee may withdraw the recognition under sub-section (1) for reasons to
be recorded in writing
Section 51 (3) All efforts shall be made to keep siblings together in foster families, unless it is in their best
interest not to be kept together.
Section 51 (4) The State Government, after taking into account the number of children, shall provide monthly
funding for such foster care through District Child Protection Unit after following the procedure, as may be
prescribed, for inspection to ensure well being of the children.

62
Section 51 (5) In cases where children have been placed in foster care for the reason that their parents have
been found to be unfit or incapacitated by the Committee, the child’s parents may visit the child in the foster
family at regular intervals, unless the Committee feels that such visits are not in the best interest of the child,
for reasons to be recorded therefor; and eventually, the child may return to the parent’s homes once the parents
are determined by the Committee to be fit to take care of the child.
Section 51 (6) The foster family shall be responsible for providing education, health and nutrition to the child
and shall ensure the overall well-being of the child in such manner, as may be prescribed.
Section 51 (7) The State Government may make rules for the purpose of defining the procedure, criteria and
the manner in which foster care services shall be provided for children.
Section 51 (8) The inspection of foster families shall be conducted every month by the Committee in the form
as may be prescribed to check the well-being of the child and whenever a foster family is found lacking in
taking care of the child, the child shall be removed from that foster family and shifted to another foster family
as the Committee may deem fit.
COMPARATIVE ANALYSIS
BETWEEN THE INDIAN AND BRITISH MODEL
The Indian law that governs Juvenile justice system is The Juvenile Justice (Care and Protection of Chil-
dren) Act, 2015.
The United kingdom law which governs Juvenile justice system is Crime and Disorder Act 1998.
In England and Wales Now, children aged 10 and 17 are capable of committing offences and it is not possi-
ble for a child to avoid liability by showing he does not know the difference between right and wrong.
1. Criminal Responsibility
India
Under the Juvenile Justice (Care & Protection of Children) Act, 2015 which provides the criminal re-
sponsibility, the age of criminal majority starts from the age of 16 to 18 years whosoever commits a serious
offence. Thus, also attracts a minimum 7 years of imprisonment. Also, no child under the Juvenile Justice
(Care & Protection of Children) Act, 2015 can be awarded a Death Penalty & Life Imprisonment
The law defines a “juvenile or child’” as a person who has not completed their 18thyear of age.

63
United Kingdom.
In England and Wales Now, children aged 10 and 17 are capable of committing offences and it is not
possible for a child to avoid liability by showing he does not know the difference between right and wrong.
2. Judicial Process
India
Under this act children are not to be taken to a regular criminal court.
The purpose of a separate court is that its purpose is socio-legal rehabilitation and reformation, not
punishment.
The aim is to hold a child culpable for their criminal activity, not through punishment, but counselling
the child to understand their actions and persuade them away from criminal activities in the future.
The JJB consists of a metropolitan magistrate or a judicial magistrate of the first class and two social
workers, at least one of whom should be a woman.
JJB are meant to resolve cases within a four month period.
United Kingdom
When a young person is charged with an offence, they will appear before the youth court.
If a young person pleads not guilty, a date will be set for the trial when the magistrates will hear all the
evidence and decide whether or not the young person is guilty.
If the decision is guilty, they will then decide on the most appropriate sentence.
If the case is very serious, the youth court will send the case to the Crown Court for trial and or sentence.
3. Penalties and Restoration

India:
Orders regarding child found to be in conflict with law. Section 18

1. Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a
serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwith-
standing anything contrary contained in any other law for the time being in force, and based on the nature of
offence, specific need for supervision or intervention, circumstances as brought out in the social investiga-
tion report and past conduct of the child, the Board may, if it so thinks fit,—
a. allow the child to go home after advice or admonition by following appropriate inquiry and counselling to
such child and to his parents or the guardian;
b. direct the child to participate in group counselling and similar activities;

64
c. order the child to perform community service under the supervision of an organisation or institution, or a
specified person, persons or group of persons identified by the Board;
d. order the child or parents or the guardian of the child to pay fine:
e. Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the
time being in force are not violated;
f. direct the child to be released on probation of good conduct and placed under the care of any parent,
guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the
Board may require, for the good behaviour and child’s well-being for any period not exceeding three years;
g. direct the child to be released on probation of good conduct and placed under the care and supervision of
any fit facility for ensuring the good behaviour and child’s well-being for any period not exceeding three
years;
h. direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for
providing reformative services including education, skill development, counselling, behaviour modification
therapy, and psychiatric support during the period of stay in the special home.
Provided that if the conduct and behaviour of the child has been such that, it would not be in the child’s in-
terest, or in the interest of other children housed in a special home, the Board may send such child to the
place of safety.
2. If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders
to—
1. Attend school, or
2. Attend a vocational training centre; or
3. Attend a therapeutic centre; or
4. Prohibit the child from visiting, frequenting or appearing at a specified place; or
5. Undergo a de-addiction programme.

65
3. Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial
of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court
having jurisdiction to try such offences.
United Kingdom :
Juvenile courts have a wide range of sentencing options that they can impose on juveniles or youth offend-
ers.
Incarcerating Juvenile Delinquents
After a child is held delinquent a JJ Court may order incarceration as a penalty. But this incarceration is
different from those used in adult criminal justice system. Some common ways that the judges can order
confinement for a juvenile who has been found delinquent:
Home confinement: The judge can order the minor to remain at home, with exceptions (attend school,
work, counselling, and so on).
Placement with someone other than a parent or guardian: The judge can require that the minor live
with a relative or in a group or.
Juvenile hall/juvenile detention facility: The judge can send the minor to a juvenile detention facility.
These facilities are designed for short-term stays.
Secured juvenile facilities: These facilities are designed for longer term stays. Juveniles can be sent to
secured facilities for months or years.
Juvenile and adult jail: In some jurisdictions, judges can send delinquent juveniles to a juvenile facil-
ity, and then order transfer to an adult facility once the juvenile reaches the age of majority.
Non-Incarceration Options for Juveniles

Verbal warning: The sentence for the juvenile can be as simple as a verbal reprimand.
Fine: The minor may be required to pay a fine to the government or pay compensation to the victim.
Counseling: Often, judges require juveniles to attend counseling as part of a disposition order.
Community service: Juveniles may be ordered to work a certain number of hours in service to the local
community.

66
Electronic monitoring: Juveniles may be required to wear a wrist or ankle bracelet that verifies their
location at all times.
Probation
Probation is a program of supervision in which the minor’s freedom is limited and activities restricted.
Probation is the most common disposition in juvenile cases that receive a juvenile court sanction. In an
average year, about half of all minors judged to be delinquent receive probation as the most restrictive sen-
tence.
Difference between Adoption and Foster care
At the very inception or at first glance, foster care and adoption seem similar and hardly one can
make any difference between two as both the cases deals with a child who needs care and protection and the
parents are eager to bring the child into their home for care, supervision and nurture. In fact, many of us
confuse the two as synonymous to each other. But there are differences between the two as foster care can be
classified into two categories of duration as short term and long term duration of placement for the child but
no such duration is there in adoption. Adoption counts no duration of placement.
Foster care is temporary alternate system conceived in place of institutionalisation of children with an
aim to provide the children with a family environment. But adoption is not alternate system rather it is a
permanent settlement to provide the children with a family who takes care of children permanently.
All legal rights have been accrued by the children as soon as the child becomes the part of the adoptive
family like property rights etc but such rights are not available to the child where the child has been given for
the foster care to some family, the child is not legally eligible to accrue any sorts of rights from the foster
parents.
Issues and Challenges with Juvenile Justice in India
1. Term of sentence: There is no logical or scientific reason which shows that total and complete reha-
bilitation can be achieved by a child in conflict with the law within a maximum period of three years.
2. Post completion of term and aftercare: Absolute lack of implementation of the provisions of the JJ
Act after a juvenile completes his sentence is a major concern. India's massive population makes it

67
impossible to track and ensure that a juvenile once released continues with his therapy or even reports
regularly to his parole officer.
3. Juveniles in Adult jails: National Commission for Protection of Child Rights (NCPCR), a number of
probable juveniles are found in adult jails. Further, the police subvert the guidelines of JJ Act and
lodge juveniles into adult jails.
4. Issues with juvenile homes:
 Lack of trained staff and financial corruption is a major concern in juvenile homes across India
 In major of the homes, there is complete lack of vocational training, counselling and individual care
plans
 A 2013 report by the Asian Centre for Human Rights (ACHR), “India’s Hell Holes: Child Sexual As-
sault in Juvenile Justice Homes” stated that inmates are subjected to sexual assault and exploitation,
torture and ill-treatment, apart from being forced to live in inhuman conditions

68

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NOTES ON

Important Landmarks in the Evolution of Child Rights

NIHAL KOTTALATH | Law Relating to Child

NIHAL KOTTALATH | Law Relating to Child

36 Guidelines governing adoption of Children in India were formulated in 2011

INTERNATIONAL CONCERN FOR CHILD

(a) Prohibition of industrial exploitation / fixing working age

NIHAL KOTTALATH | Law Relating to Child

(b) Human rights for children

PRINCIPLE 3 : right to social endurance by birth

NIHAL KOTTALATH | Law Relating to Child

PRINCIPLE 8 : right to protection and relief;

PRINCIPLE 9 : right to protection against neglect, cruelty and exploitation; and

NATIONAL CONCERN ABOUT THE CHILD

(i) Constitutional Protection

NIHAL KOTTALATH | Law Relating to Child

Directive Principles of State Policy

NIHAL KOTTALATH | Law Relating to Child

The National Policy for Children

CONVENTION ON THE RIGHTS OF THE CHILD

Contained in this treaty is a profound idea:

NIHAL KOTTALATH | Law Relating to Child

United Nations Convention on the Rights of the Child (UNCRC)

NIHAL KOTTALATH | Law Relating to Child

The position of a minor as regards his agreements can be summed as under:

In England, a minor's contract is only voidable at his instance.

Mohori Bibi V. Dharmadas Bhose (1905)

Padma Vithoba V. M. Murtani (1963) 3 SCR 229

Ranga Raju V. M. Basappa (1913) 24 MLJ 363

NIHAL KOTTALATH | Law Relating to Child

(3)Minor cannot ratify the agreement on attaining majority

Armugham V. Doraisinga (1914) 37 Mad. 38

(4)A minor can always plead minority

Sadik v. Jaikishore (1928)PC 152

(5) A minor may be directed to restore the property

NIHAL KOTTALATH | Law Relating to Child

Leslie v. Sheil (1914) 3 KB 607

Khan Gulv. Lakha Singh ILR(1929) 9 Lah. 701 (FB)

Ajudhia Prasad v. Chandan Lal ILR 860 (1937) All. 860

property for necessaries supplied to him.

Position of Minor's parents

NIHAL KOTTALATH | Law Relating to Child

 Under age 7: A child could not be negligent.

Claim for Pre-natal injuries

I. An action is allowed if the child is born alive, but disabled.

NIHAL KOTTALATH | Law Relating to Child

A similar legislation in India is necessary to protect the interest of the children

Liability of parents for children's torts

NIHAL KOTTALATH | Law Relating to Child

RIGHTS AND IMMUNITIES OF CHILDREN UNDER CRIME

 Under age 7: A child was conclusively deemed incapable of committing a crime.

NIHAL KOTTALATH | Law Relating to Child

NIHAL KOTTALATH | Law Relating to Child

Fundamental principles governing adoption:

ADOPTION UNDER ENGLISH LAW

NIHAL KOTTALATH | Law Relating to Child

NIHAL KOTTALATH | Law Relating to Child

HINDU ADOPTION AND MAINTENANCE ACT, 1956

4. Her husband suffers from certain disabilities