Legal Provisions Regarding “Doli Incapax” (Incapacity of Child) in India

Sec. 82. Act of a child under seven years of age:

Nothing is an offence which is done by a child under seven years of age.

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Sec. 83. 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.

Important Points:

A. Object:

The children are treated equally with the God, as they do not know right or wrong. Thus children are exempted from the criminal and civil liabilities. In civil, a minor’s contract ab initio is void. In criminal, forgiving exemption to their criminal liability, children are made into two groups:

(i) Under the age of seven years, and

(ii) Above seven years below twelve years. Section 82 provides complete exemption from the criminal liability for the acts done by a child below the age of seven years.

Section 83 provides exemption from the criminal liability for the acts done by a child below the age of twelve years and above seven years, subject to certain conditions, i.e., the understanding capacity of the child, physical capacity of the child, etc.

B. Doli incapax (Incapacity of the child):

A child below the age of seven years is called “doli incapax”. The words “doli incapax” means “incapability of the child” to distinguish right or wrong. Hence the law grants absolute immunity to such an infant from wrongful acts. According to the English Law a child below the age of ten years is considered as doli incapax.

C. Abettor:

No doubt criminal law, as a general principle, exempts a child under seven years of age from the criminal liability. However, when a child below the age of seven years is engaged by an adult person to commit the offence, such an adult is liable as an abettor.

Explanation-3 of Section 108 reads:

“It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge,”.

Illustrations (a) & (c) read:

(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence.

(b) A, with the intention of murdering Z, instigates B, a child under seven years of the age, to do an act which causes Z’s death. B, in consequence of the abetment, does that act in the absence of A and thereby causes Z’s death.

Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is, therefore, subject to the punishment of death.

(c) A, instigates B to set fire to a dwelling-house. B, in consequence of the unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s instigation.

B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment provided for that offence.

(D) B. Sec. 83 explains the provisions about an act of a child above seven and under twelve years. These groups of children are also deemed as doli incapax to certain extent.

The framers of the Code thought that a child above seven and under twelve years possesses immature understanding. Hence Sec. 83 exempts such child from criminal liability, if such child has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct.

While Sec. 82 gives complete protection to a child under seven of age, Sec. 83 imposes a condition besides the age restriction that the child will be exempted from criminal liability if he has not attained sufficient maturity of understanding to judge of nature and consequences of his conduct. The following case-law is a good example for Sec. 83.

E. Heeralal vs. State of Bihar (AIR 1977 SC 2236)

Brief Facts:

A child of eleven years quarreled with the deceased. The child threatened the deceased that he would cut him into pieces. He picked up his knife and actually stabbed the deceased to death. In the prosecution, the defence was pleaded under Sec. 83.

The trial Court convicted the boy/accused, and held that the boy was not entitled to get the immunity under Sec. 83 because his words, gesture, assault, keeping a knife in his pocket, stabbing the deceased, etc., showed that the child had attained sufficient maturity of understanding to judge the wrongful act and also the consequences of his act. The Supreme Court upheld the conviction against the accused.

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