Paradox Surrounding The Statutory Age Of Minority
Ankur Mittal, Additional Advocate General Haryana
Punjab & Haryana High Court, Chandigarh
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Date : 12/02/2021
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Paradox Surrounding The Statutory Age Of MinorityINTRODUCTION Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.
-Martin Luther King, Jr.The term `minor' originated from French term `minuere' which translates to `smaller or lesser'. In India, there are dozen of statutes which deals with the law related to minors, namely, Indian Majority Act, 1875; Indian Contract Act, 1872; Prohibition of Child Marriage Act, 2006; POCSO Act, 2012; Juvenile Justice Act, 2015; personal laws; etc. but the inconsistencies in the age of minority created by these statutes have given rise to the question as to who is actually a minor in India? The concept of `minor' was discussed at length in the domain of contractual law in the case Mohori Bibi v. Dharmodas Ghose, (1903) ILR 30 Cal. 539(PC) and gained momentum with the trial in the Delhi Gang Rape Incident[1*] which lead to the `Criminal Law Amendment in the year of 2013, thereby, amending Indian Penal Code, 1860; Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 on the laws related to sexual offences & proceeding with the children in conflict with law between the age of 16-18 years engaged in heinous crimes to be treated and tried as an adult and, further, on different dimension, in the case Independent Thought v. Union of India, AIR 2017 SC 4904, where the Hon'ble Supreme Court read down Exception 2 to Section 375 of IPC, 1860 that allowed the husband of a girl child, between fifteen and eighteen years of age the right to have intercourse with her, irrespective of her consent.
[1* State Through Reference v. Ram Singh & Ors. Death Sentence Reference No.6/2013]There is versatility in the nomenclature which is used to refer to the world minor, namely, child, juvenile, child in conflict with law, doli incapax, ward, adolescent, etc. Every term has its own significance and used in different context in different statutes. The age of minor is not only different in different statutes but it also differs according to the gender. This leads us to the question, "who is actually a minor is India?" DEFINING THE TERM `MINOR' ■ United Nations Convention on Rights of the Child, 1989 (UNCRC) provides, "a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier." This gives the various countries, the freedom to fix the age limit in determining that who is a child. Definitions in India- 1. Section- 11 of Indian Contract Act, 1872, a minor is a person who has not attained the age of 18 years. 2. The age of majority of a person as per section 3 of the Indian Majority Act, 1875, person is deemed to have attained the age of majority when he completes the age of 18 years, except in the following cases a person continues to be a minor until he completes the age of 21 years-
i. Where a guardian of a minor's person or property has been appointed under the Guardians and Wards Act, 1890 or
ii. Where the superintendence of a minor's property is assumed by a Court of Wards.3. Concept of Doli Capax & Doli Incapax-
i. Section 82 of Indian Penal Code, 1860 (IPC), nothing is an offence which is done by a child under seven years of age. (Doli Incapax)
ii. Section 83 of Indian Penal Code, 1860 (IPC), 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. (Doli Capax- if child have attained sufficient maturity).4. Other Provisions of IPC, 1860-
i. Section 89 of IPC, 1860 provides the protection to the people for the action taken in good faith for the benefit of a person under twelve years of age.
ii. Section 317 of IPC, 1860 makes punishable the action of the father or mother of a child under the age of twelve years, exposing or leaving such child in any place with the intention of wholly abandoning such child.
iii. Section 363 of IPC, 1860 makes the act of kidnapping any minor under sixteen years of age if a male, or under eighteen years of age if a female punishable.
iv. Section 369, IPC, 1860 makes the act of kidnapping or abducting any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child.
v. To ensure that children are not kidnapped for the purpose for begging, section 363A of IPC, 1860 provides provision against such kidnapping or maiming a minor for purposes of begging is a criminal offense under IPC, 1860.
Sec. 363A(4)(b) provides- `minor' means-
(i) in the case of a male, a person under sixteen years of age; and
(ii) in the case of a female, a person under eighteen years of age.
vi. Section 366 A of IPC, 1860 makes kindnapping for the purpose of illicit intercourse by inducing any minor girl under the age of eighteen years a punishable offence.
vii. Section 372 & 373 of IPC, 1860 makes the use of any person under the age of eighteen years, for the purpose of prostitution or illicit intercourse, a punishable offence.5. Protection of Children from Sexual Offences (POCSO) Act, 2012, Section-2 (1) (d) "child" means any person below the age of 18 years. But there is a difference of age of child, when the child is the victim of sexual offences, under section- 4 of the Act. It provides- Sec-4. Punishment for penetrative sexual assault.-
(1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.This way two categories of child victims are created-
i. Child below the age of sixteen years, and
ii. Child between the age of sixteen and eighteen years.6. Information Technology Act, 2000, Explanation of section - 67B, children means a person who has not completed the age of 18 years. 7. Prohibition of Child Marriage Act, 2006, makes child marriage punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. Sec-2 (a) "child" means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age. 8. Special Marriage Act, 1954 & Hindu Marriage Act, 1955, conditions of valid marriage- the male has completed the age of twenty-one years and the female the age of eighteen years. 9. Minor in Muslim Law- In Muslim law a person is said to be minor if he or she has not attained the age of puberty. The age of puberty is 15 years for marriage, dower and divorce. For purpose other than marriage, dower and divorce, the age of majority is governed by the Indian Majority Act, 1875. For filling a suit in a court of law, the minimum age is eighteen years even if the suit may relate to marriage, dower and divorce. A minor can not file any suit relating to his marriage without the `next friend'. 10. Guardianship and Wards Act, 1890, section 4(1) "minor" means a person who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority. Section 4 (3) "ward" means a minor for whose person or property, or both, there is a guardian. 11. Hindu Adoption and Maintenance Act, 1956, section 3 (c) "minor" means a person who has not completed his or her age of eighteen years. 12. Age of majority in other religions:
■ In Judaism, a male becomes an adult at age of 13 years and a female becomes an adult at age of 12 years.
■ In the Roman Catholic Church, a person is considered an adult at the age of 18 years.13. The Plantation Labour Act, 1951 has separate definitions for child, adolescent and adult.
i. `Child' means a person who has not completed his fourteenth year.
ii. `Adolescent' means a person who has completed his fourteenth year but has not completed his eighteenth year.
iii. `Adult' means a person who has completed his eighteenth year.14. The Juvenile Justice (Care and Protection of Children) Act, 2015, provides for strengthened provisions for both children in need of care and protection and children in conflict with law. There is a change in nomenclature from `juvenile' to `child' or `child in conflict with law', across the Act to remove the negative connotation associated with the word "juvenile".
i. Section 2(12) "child" means a person who has not completed eighteen years of age.
ii. Under Section 15, special provisions have been made to tackle child offenders committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is given the option to transfer cases of heinous offences by such children to a Children's Court (Court of Session) after conducting preliminary assessment. Besides this, the provisions provide for placing children in a `place of safety' both during and after the trial till they attain the age of 21 years after which an evaluation of the child shall be conducted by the Children's Court. Afterwards, the child is either released on probation and if the child is not reformed then the child will be sent to a jail for the remaining term. The law will act as a deterrent for child offenders committing heinous offences such as rape and murder and will protect the rights of victim.15. Section 27 of The Code of Criminal Procedure (CrPC), 1973 provides for jurisdiction in case of juveniles - If any offense not punishable with death or imprisonment for life, if committed by any person who at the date when he appears or is brought before the court is under the age of sixteen years, may be tried by the court of' a Chief- Judicial Magistrate, or by any court specially empowered under the Children Act, 1960, or any other law for the time being in force providing for the treatment, training and rehabilitation of the youthful offenders. Here, the paradox arises, child under the age of 18 years are dealt under JJ Act, 2015 but at the same time power has been provided to the court of CJM under sec 27 of CrPC, 1973 to deal with the child under the age of 16 years. Moreover, the above mentioned statutes demonstrates that the Indian Legal System has made separate provisions for the minors as the law makers feel is suited to the Indian demography and benefit the young citizens. However, in the larger context, the confusion surrounding the age of who is a child still remains and the perpose for ascertaining the age also remains unfulfilled. MINOR'S AGE AS PER STATUTES PREVAILING IN THE UNITED KINGDOM Common Law is the origin of almost every major law in India, thereby, it is crucial to glance over the statutory provisions of the United Kingdom. These are as follows: Age of Minority In England, Wales and in Northern Ireland a minor is a person under the age of 18 as per section 1, Family Law Reform Act 1969. In the said statute the age of majority was reduced from 21 to 18 years by amendment[2*]. In Scotland, this age is 16 years as per section 1, Age of Legal Capacity (Scotland) Act 1991[3*].
[3* Sec-1, Age of Legal Capacity (Scotland) Act 1991; Age of legal capacity-
(1) As from the commencement of this Act-
(a) a person under the age of 16 years shall, subject to section 2 below, have no legal capacity to enter into any transaction;
(b) a person of or over the age of 16 years shall have legal capacity to enter into any transaction.]
➢ The legal status of a child marriage in Hindu as well as Muslim Law is voidable at the option of the parties. However, if the consent is obtained by fraud, deceit or if the child is enticed away from his lawful guardians and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void.
➢ In Hindu Law, under Section 13(2)(iv) of the Hindu Marriage Act, 1955, a child bride under the age of 15 years must repudiate the marriage after attaining the age of 15 years but before she attains the age of 18 years, i.e. even before she attains majority.
➢ Under Muslim Law, Section 2 (vii), Dissolution of Muslim Marriages Act, 1939 provides that if a minor girl is given in marriage by her father or other guardian before she attained the age of fifteen years may repudiate the marriage before attaining the age of eighteen years. Provided that the marriage has not been consummated.
One question remains unanswered as to who will represent or help these children, who have been forced to marry, to approach the Courts. This is also not in consonance with the provisions of secular law i.e. Prohibition of Child Marriage Act, 2006, according to which marriage of a child bride below the age of 15 years is void and there is no question of seeking a divorce since, a void marriage is no marriage- Age of Consent For Marriage:
■ Its time to re-think over different age for female (18 years) and male (21 years) for valid marriage by bringing a uniform age of consent of marriage for all citizens equally.this can be done by putting an end to the stereotype that wives must be younger than their husbands.
■ The 18 years old have the liberty to chose their government irrespective of their gender but they are not mature enough as to make decision about their matrimonial life. Thereby, there is need to recognise a universal age for majority. The age of majority must be recognised uniformly as the legal age for marriage for men and women alike as is determined by the Indian Majority Act, 1875, i.e. eighteen years of age. The differences in age for husband and wife have no basis in law as spouses entering into a marriage are by all means equals.
■ In Independent Thought v. Union of India, AIR 2017 SC 4904, the Hon'ble Supreme Court read down Exception 2 to Section 375 of IPC that allowed the husband of a girl child - between fifteen and eighteen years of age the right to have intercourse with her. The Supreme Court dealt specifically with the exception dealing with married girls aged between fifteen to eighteen years. The Court rightly held that a child remains a child regardless of whether she is married or unmarried and therefore intercourse with a minor would be rape regardless of her marital status.2. GUARDIANSHIP LAWS-
- Guardianship and Wards Act, 1890, Section-21 provides the capacity of minors to act as guardians-A minor is incompetent to act as guardian of any minor except his own wife or child or where he is the managing member of an undivided Hindu family, the wife or child of another minor Member of that family.
- In a matrimonial relation, the laws on guardianship are clear, the husband will be the guardian of his wife minor or major. The issue also becomes relevant if the husband of the minor girl himself is a minor. Then the question arises that when it comes to compulsory registration of marriage, should the law encourage the tacit compliance of child marriage by allowing the valid marriages as per personal laws to get registered, or should the law not register these marriages as this action prima facie amounts to turning a blind eye towards the secular statutory law against child marriages.3. IN THE DOMAIN OF CONTRACTUAL LAW
■ Minor' s contract void ab initio: Before 1903, it was not clear that contract enter into by the minor is void or voidable. But the landmark judgement of Privy Council in the case of Mohori Bibi v. Dharma Das Ghose, (1903) ILR 30 Cal. 539 (PC), removed this ambiguity by holding that the minor's agreement is void ab initio. Since, for making an agreement enforceable and to convert it into a contract, one of the condition is that the party should be competent to contract but minor is not competent to contract because he has not completed the age of 18 years and anyone who enters into contract with a minor that contract will be void ab initio. Simultaneously, a clause is incorporated that allows a minor to enter into contract for his benefits, it means that the minor can enforce that particular part of contract which is in his own interest. Thereby, the minor can sue the other party to get the benefit for his welfare but if a minor enters into a agreement with anybody, then he is not personally accountable, only minor's property will be accountable to pay the debt.
The law protects the minor's rights since they are not mature and may not possess enough capacity to judge what is good and what is bad for them. The position of agreement made by a minor is void-ab initio, i.e. absolutely null and void from the very beginning, therefore, it does not give rise to any legal consequences.ANALYSIS OF THE PARADOX, SUGGESTIONS & CONCLUSIONS Our society has come a long way from the era when different civilizations bestowed adult responsibilities on the pre-pubescents but with the progression of time, the society went through multitude of changes and with these changes, the temperament of the people of society also changed. The fast emerging modern technology provided the platform for not only convenience to life but also a breeding ground for more versaltile crimes involving the youngsters. As a coin have two sides, similarly, this situation have two outcomes- at one end the mind of the adolescents is manuplated which leads them to become aggressors and on the other end, they are the victims of crimes due to loopholes in the statutory protections. After comprehensive and elaborate study of Indian Statutes and the law of some leading nations, the prima facie observation is that there is confusion and complexities surrounding the age of minority around the world due to the lack of a clear cut definition. This ambiguity creates mahem in the life of the youngsters. There is a need to distinguish between civil law and criminal law while dealing with the concept of the age of minority because these law operates on different set of ingredients and ascpects. In civil law, it is more about capacity including the physical and mental capacity but criminal law is diverse because the rules of criminal jurisprudence lay emphasis over the intent i.e. `mens rea' to constitute guilt in a crime mere physical action is not enough to inculpate a person. While establishing guilt of a person, the judge has to ascertain whether the person have capacity (the word is used in the criminal jurisprudence of almost every nation) to formulate a particular intent or is the person mature enough to understand the nature of the act he/she is engaged. There can be unanimity and certainity in the age in the civil law, field covering contractual law, matrimonial law, law related to alcohol consumption, sufferage rights, guardianship laws, etc. as in these fields, there is necessity of development of mental and physical state that in majority of cases is attained at post pubescent stage i.e. around the age of 18 years and for this law around the world and in India is somewhat certain and unanimous. While dealing with criminal law, there is a need of developing the concept of `doli capax' & `doli incapax' in a comprehensive manner for unanimous application of the laws relating to criminal offences, such as- murder, sexual abuse, IT related offences, fraud, etc. because criminality among youth is the outcome of several factors as `no-one is born criminal'. For instance, some children have a highly cognitive mind at a very young age who are capable of performing complex tasks while most children of his/her age would not be able to perceive in the same manner. Moreover, the background of upringing also plays a vital role in shaping an individual, for instance, three scenarios or cases of a child of 14 years-
i. First case, child have been consistently exposed to child abuse, or
ii. Second case, a child of the same age living with thieves or habitual offenders, or
iii. Third case, where the child is brought up by a normal family who are providing him/her proper education and care;Then in these scenarios, these three children of the same age can not be placed in the same category as this will create a paradoxical situation in the implementation of law. At present, what the countries around the world and our own nation is doing is that they are implementing the different laws imposing various criminal liability over different age groups which they feel is best suited to their demographic situation and the temperament of the society due to which efforts at international level do not bear any fruit in a long run. This fails in checking crime rate and rather caste a stigma on the youth which renders the possibility of their reformation a very difficult task. Therefore, it is crucial to recognize the fact that providing uniformity or certainity of a specific age will not subserve the purpose but the mental capacity of comprehending the state and nature of affairs should define the level of maturity which is subjective from child to child. Now, the issue is how to come out of this paradox? One solution could be the analysis of children which could be done by the establishment of Committees at national, state and district level; comprising of child psychologists as well as members from legal field who have the experience of dealing with children related crimes, child rights, etc. who can analyse the background of the upbringing and the current situation of the concerned child be he/she is a victim or the offender. Child cells could be established at every village, town and city; the official of such cells will also possess training in dealing with children envolve in crimes to assist committee in their function. As earlier stated, no one is born criminal but the situations during the period while growing up, turns an innocent child into a heinous criminal. So, such establishment and psychological help will provide a way for reformation to the children exposed to crimes. The essence of criminal jurisprudence, itself eliminates the question of certainity or unanimity in the age for a person to be described as a child rather there is a need for law makers around the world to truly develop the concept of doli capax and doli incapax to genuinely mitigate the issue of conflict and paradox in the age of minority.
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