minority vs. legal disability in different proceedings

7/31/2019 Minority vs. Legal Disability in Different Proceedings

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SUBMITTED TOWARDS THE FULFILMENT OF THE COURSE

TITLED DPC

A PROJECT ON

MINORITY VS LEGAL DISABILITY IN DIFFERENT PROCEEDING

SUBMITTED TO: Dr. B.R.N. SHARMA

FACULTY: DRAFTING PLEADING CONVEYANCING

SUBMITTED BY:

KAJEEV KUMAR

4th

YEAR (8th

SEM)

ROLLNO: 223B.A. LL.B.(Hons.)

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA


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TABLE OF CONTENTS

1. ACKNOWLEDGEMENT ................................................................................................... 32. INTRODUCTION ............................................................................................................... 53. MINORITY.......................................................................................................................... 7

I. Age of majority ............................................................................................................... 7

II. Juvenile justice and claim of juvenility ....................................................................... 8

III. Minimum Age of Criminal Responsibility (MACR) .................................................. 9

IV. Age verification of rescued victims of trafficking .................................................... 10

V. Age of consent for sexual intercourse ....................................................................... 10

VI. Child witnesses .......................................................................................................... 11

4. CIVIL PROCEEDING....................................................................................................... 135. CRIMINAL PROCEEDING ............................................................................................. 16

I. criminal responsibility .................................................................................................. 16

II. procedure under juvenile legislation ......................................................................... 17

6. LEGAL DISABILITY OF MINOR UNDER LIMITATION ACT, 1963 ........................ 19I. Section 6 - Legal disability ........................................................................................... 20

II. Section 7- Disability of one of several persons ......................................................... 20

III. Section 8 - Special exceptions ................................................................................... 21

7. APPLICATION FOR BAIL UNDER JUVENILE JUSTICE ACT, 2000 ........................ 22Affidavit ............................................................................................................................... 24

8. CONCLUSION .................................................................................................................. 259. BIBIOGRAPHY ................................................................................................................ 27


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ACKNOWLEDGEMENT

I am feeling highly elated to work on the topic MINORITY Vs LEGAL DISABILITY

IN DIFFERENT PROCEEDING under the guidance of my DPC teacher. I am very grateful

to him for his exemplary guidance. I would like to enlighten my readers regarding this topic

and I hope I have tried my best to pave the way for bringing more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project

was not possible. Apart from all these, I want to give special thanks to the librarian of my

university who made every relevant materials regarding to my topic available to me at the

time of my busy research work and gave me assistance. And at last I am very much obliged

to the God who provided me the potential for the rigorous research work.

At finally yet importantly I would like to thank my parents for the financial support.

-----------------Thanking you

KAJEEV KUMAR

C.N.L.U.


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RESEARCH METHODOLOGY

The project is basically based on the doctrinal method of research as no field work is done on

this topic. The whole project is made with the use of secondary source.

AIMS & OBJECTIVES:

The aim of the project is to present a detailed study of MINORITY Vs LEGAL DISABILITY

IN DIFFERENT PROCEEDING through decisions and suggestions and different writings,

articles & reports.

SOURCES OF DATA:

The following secondary sources of data have been used in the project-1. Articles2. Books3. Websites

METHOD OF WRITING:

The method of writing followed in the course of this research paper is primarily analytical.

MODE OF CITATION:

The researcher has followed a uniform mode of citation throughout the course of this research

paper


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INTRODUCTION

Who is a child? When does childhood cease or begin? These simple questions have complex

answers. Most of the old worlds civilisations did not consider children human beings with full

human value. Thus, childhood was not an independent social category until the beginning of the

18th century. Legislation did not deal with childhood as a period of life that needs special

measures of protection until the early-19th century. In his book,Lenfant ET la vie familiale sous

lAncien Regime, Philippe Aries said that the child in the Middle Ages did not exist as an

independent anthropological category and therefore children did not need to be taken into

consideration.

The law, policy and practice of child welfare have undergone significant changes from an

historical perspective. Before 1839, authority and control was important. It was an established

common law doctrine that the father had absolute rights over his children. After this, the welfare

principle was reflected in the dominant ideology of the family. Victorian judges, who developed

the welfare principle, favoured one dominant family form.

The traditional Indian view of welfare is based on daya, dana, dakshina, bhiksha, ahimsa,

samya-bhava, swadharma and tyaga, the essence of which were self-discipline, self-sacrifice and

consideration for others. It was believed that the wellbeing of children depended on these values.

Children were recipients of welfare measures.

It was only during the 20th century that the concept of childrens rights emerged. This shift in

focus from the welfare to the rights approach is significant. Rights are entitlements. They also

imply obligations and goals. The rights approach is primarily concerned with issues of social

justice, non-discrimination, equity and empowerment. The rights perspective is embodied in the

United Nations Convention on the Rights of the Child (CRC), 1989, which is a landmark in

international human rights legislation. India ratified the Convention on the Rights of the Child in

December 1992.

According to Article 1 of the CRC, a child means every human being below the age of 18 years

unless, under the law applicable to the child, majority is attained earlier. The Article thus grants


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individual countries the discretion to determine by law whether childhood ceases at 12, 14, 16 or

whatever age is found appropriate.

Today, nearly all cultures share the view that the younger the child the more vulnerable she/he is

physically and psychologically and the less able to fend for herself/himself. Age limits are a

formal reflection of societys judgement about the evolution of childrens capacities and

responsibilities. Almost everywhere, age limits formally regulate childrens activities: when they

can leave school; when they can marry; when they can vote; when they can be treated as adults

by the criminal justice system; when they can join the armed forces; and when they can work.

But age limits differ from activity to activity, and from country to country.


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MINORITY

Several provisions in the Constitution of India impose on the State the primary responsibility of

ensuring that all the needs of children are met and that their basic human rights are fully

protected. Article 21 A of the Constitution of India says that the State shall provide free and

compulsory education to all children within the ages of 6 and 14 in such manner as the State may

by law determine. Article 45 of the Constitution specifies that the State shall endeavour to

provide early childhood care and education for all children until they complete the age of 6.

Article 51 (k) lays down a duty that parents or guardians provide opportunities for education to

their child/ward between the age of 6 and 14 years.

The age at which a person ceases to be a child varies under different laws in India. Under the

Child Labour Prohibition and Regulation Act, 1986, a child is a person who has not completed

14 years of age. The Constitution of India protects children below the age of 14 from working in

factories and hazardous jobs. But below 14, they can work in non-hazardous industries. An area

of concern is that no minimum age for child labour has been specified. But for the purposes of

criminal responsibility, the age limit is 7 and 12 under the Indian Penal Code, 1860. For purposes

of protection against kidnapping, abduction and related offences, its 16 years for boys and 18

for girls. For special treatment under the Juvenile Justice (Care and Protection of Children) Act

2000, the age is 18 for both boys and girls. And the Protection of Women from Domestic

Violence Act 2005 defines a child as any person below the age of 18, and includes an adopted

step- or foster child.

Some provisions relating to age under different laws are:

I. AGE OF MAJORITYUnder the Age of Majority Act 1875, every person domiciled in India shall attain the age of

majority on completion of 18 years and not before. The Indian Majority Act was enacted in orderto bring uniformity in the applicability of laws to persons of different religions. Unless a

particular personal law specifies otherwise, every person domiciled in India is deemed to have

attained majority upon completion of 18 years of age. However, in the case of a minor for whose

person or property, or both, a guardian has been appointed or declared by any court of justice


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before the age of 18 years, and in case of every minor the superintendence of whose property has

been assumed by the Court of Wards, age of majority will be 21 years and not 18.

The Hindu Minority and Guardianship Act (HMGA), 1956, in Section 4 (a), defines a minor as

a person who has not completed the age of 18 years.

The age of majority for the purposes of appointment of guardians of person and property of

minors, according to the Dissolution of Muslim Marriages Act, 1939, is also completion of 18

years.

Christians and Parsis also reach majority at 18. Significantly, under the Child Marriage Restraint

Act, 1929, which is a secular law, the age of marriage is 21 years for males and 18 years for

females. But the age of marriage in Muslim personal law is the age of puberty (around 14 years).

It was held that Muslims are not exempted from this law. If the marriage of a Muslim girl is

performed while she is a minor, the marriage cannot be void, but the persons who participated in

the marriage are not immune from the legal punishment provided under Sections 4, 5 and 6 of

the Child Marriage Restraint Act. A Muslim girl can marry on attaining the age of puberty, and

her marriage cannot be declared void because she is below the age of 18, according to the Child

Marriage Restraint Act.

II. JUVENILE JUSTICE AND CLAIM OF JUVENILITYThe Juvenile Justice (Care and Protection of Children) Act 2000 is a legislation that conforms to

the United Nations Minimum Standards for Administration of Justice to Children. It is an Act to

consolidate and amend the law relating to juveniles in conflict with the law and children in need

of care and protection, by providing for proper care, protection and treatment by catering to their

development needs, and by adopting a child-friendly approach in the adjudication and

disposition of matters in the best interest of children and for their ultimate rehabilitation through

various institutions established under this enactment. Under the 2000 Act, juvenile means a boy

or a girl who has not attained the age of 18 years.

Under the Juvenile Justice (Care and Protection of Children) Amendment Act, 2005, the

following amendments were introduced and applicable to all cases involving detention,

prosecution or sentence on imprisonment of juveniles under any such law:


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Juvenile in conflict with law means a juvenile who is alleged to have committed anoffence and has not completed his 18th year as on the date of the offence being

committed.

Whenever a claim of juvenility is raised before any court, or a court is of the opinion thatthe accused person produced before it was a juvenile on the day the offence was

committed, the court shall make an inquiry, take such evidence as may be necessary (but

not an affidavit) so as to determine the age of the person, and shall record a finding as to

whether or not the person is a juvenile or a child, stating his age as nearly as may be.

An important provision is that a claim of juvenility may be raised before any court and itshall be recognised at any stage even after disposal of the case in terms of the provisions.

If the court finds a person to be a juvenile on the day the offence was committed, it shall

forward the juvenile to the Board.

It has been observed that, in many instances, if the police that takes a child into custody finds

the child well-built he is considered an adult and denied the beneficial provisions of the

juvenile justice system.

III. MINIMUM AGE OF CRIMINAL RESPONSIBILITY (MACR)The legal definition of a child will also affect how the courts deal with offenders, so age is very

significant here. A person who is a minor or a child cannot be convicted in the same manner as

an adult.

For instance, if a juvenile is accused of an offence under the provisions of the Narcotic Drugs

and Psychotropic Substances (NDPS) Act, he is entitled to necessary benefits under the special

enactment of the Juvenile Justice Act.

If there is legislation dealing with the criminal liability of minors, the accused should not be tried

under the ordinary law for adults. Children have to be dealt with under the juvenile justice

system and not the adult criminal justice system. Children can never be imprisoned or given the

death sentence.


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IV. AGE VERIFICATION OF RESCUED VICTIMS OF TRAFFICKINGThe age of a rescued victim is an important factor in law enforcement and justice delivery.

Anyone under 18 years is a child under the Juvenile Justice Act 2000 and cannot be sent to jail.

He has to be looked after in a home and treated according to the provisions of the JuvenileJustice Act.

There are several anomalies relating to the issue of age verification of trafficked minor girls after

rescue. The Indian Penal Code, 1860, states that sexual intercourse with a girl-child under 16

years of age, even with her consent, constitutes an offence of rape under Section 375 of the IPC.

Under Section 366 (A), procurement of a minor girl below 18 years of age is an offence. Under

Section 366 (B), importation of girls less than 21 years of age from the state of Jammu and

Kashmir to any other state, or from a foreign country to anywhere in India, is an offence. UnderSection 372 and 373 of the IPC, selling/buying of minor girls below 18 years of age for purposes

of prostitution, etc, is an offence.

It has been found, however, that traffickers, brothel owners, etc, make sure that the age of the

rescued minor is entered as 18 years or above, making her an adult in the records. So, when they

are sent to jail, the traffickers/brothel owners bail them out and the victims are returned to their

effective confinement.

There is a need to ensure the accountability of doctors who carry out age verification. Also of

police officers who record the age immediately after a rescue. Age verification reports usually

place the victims within an age bracket. There are countless police records where the age of the

girl is recorded as appears to be of 18-19 years of age. Even medical examinations place the

age within a bracket. The Supreme Court has held that when the experts opinion is given in an

age bracket, the lower age in the bracket should be the one taken into consideration, so that the

benefit of the doubt favours the victim. Therefore, if the age verification report says that the girl

is in the age bracket 17-19 years, for the purposes of law enforcement the age has to be taken as

17 years.

V. AGE OF CONSENT FOR SEXUAL INTERCOURSEIn India, the law considers anyone less than 18 years to be a child/minor, not competent to take

major decisions affecting herself or others for the purposes of the Indian Majority Act, Contract


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Act, Juvenile Justice Act, Child Marriage Restraint Act, or Representation of Peoples Act.

However, under Section 375 of the Indian Penal Code, the girl (aged 16-18) is given the right of

consent to sexual intercourse. Yet, she cannot marry at that age even with the consent of her

parents. She cannot be taken out of the keeping of her lawful guardian, even with her consent, for

lesser purposes. But she can consent to sexual intercourse so long as she does not go out of the

keeping of her lawful guardian. The Law Commission of India did attempt, in its 84th report, to

bring the age of consent in rape to 18 years, in tune with other enactments and consistent with

refined and modern notions regarding the concern and compassion that society should bestow on

its younger members. But this was not accepted. As a result, the age of consent in an offence of

rape continues to be 16 years even today. Raising the age of consent for sexual intercourse to 18,

consistent with the stipulations in subsequent enactments, appears to be the unavoidable

imperative before the system.

VI. CHILD WITNESSESThe courts have held that evidence from a child witness, if found competent to depose facts,

could be the basis for a conviction. In other words, even in the absence of an oath, the evidence

of a child witness can be considered under Section 118 of the Evidence Act, provided such a

witness is able to understand the answers thereof. The evidence of a child witness and credibility

would depend on the circumstances of each case. The only precaution the court should bear in

mind whilst assessing the evidence of a child witness is that the witness must be reliable, his/her

demeanour must be like that of any other competent witness, and that there is no likelihood of

him/her being tutored.

Further, Section 118 of the Evidence Act envisages that all persons shall be competent to testify,

unless the court considers that they are prevented from understanding the questions put to them,

or from giving rational answers to the questions, because of their young age, extreme old age, or

disease -- whether of mind or any other similar cause. However, a young child can be allowed to

testify if he/she has the intellectual capacity to understand questions and provide rational

answers.

While the law recognises the child as a competent witness, a child who is around 6 years old,

who is unable to form a proper opinion about the nature of the incident because of immaturity of


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understanding, is not considered by the court as a witness whose sole testimony can be relied on

without other corroborative evidence. The evidence of a child must be evaluated carefully

because he/she is easy prey to tutoring.

The word child has therefore been used in law as a term denoting relationship; as a term

indicating capacity; and as a term of special protection. Underlying these alternative

specifications are very different concepts about the child. These include considering a child a

burden, which invokes the right to maintenance and support; regarding children as individuals

with temporary disabilities, making for rights to special treatment and special discrimination;

treating children as specially vulnerable, to ensure rights to protection; and recognising children

as resources for the countrys development, necessitating nurturing and advancement.

Thus there do not appear to be any criteria or scientific parameters for determining a child: the

age limit in some laws appear arbitrary or based on socio-cultural perceptions. The Indian Mines

Act defines children as those below 18 years, and the various state Shops and Establishment Acts

define the age as between 12-15 years.

It is necessary that the definition of child be brought in line with the Convention on the Rights

of the Child -- viz all those below 18 years of age. If the best interest of the child is the guiding

norm, one can err on the side of a higher age limit for protective care and a lower age limit with

respect to civil and cultural matters. A review of the definition of child, in light of Article 1 of

the CRC, has been referred to the Law Commission of India as part of a comprehensive review

of the Code of Criminal Procedure, the Indian Evidence Act and the Indian Penal Code.


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CIVIL PROCEEDING

Order XXXII, of the Code of Civil Procedure deals with suit by or against minor. This order is

concerned with procedure. It does not confer on minor the right to claim through a guardian what

they are entitled to under the substantive law.

Order XXXII, rule 1, code of Civil Procedure provides that every suit by minor shall be

instituted in his name by his next friend. Minor in his context means a person who has not

attained his majority within the meaning of section 3 of the Indian Majority Act, 1875. Father

can be appointed as guardian/next friend in accordance with the provisions under order XXXII,

rule 1 and 15 of the Code of Civil Procedure. Maintainability of petition for eviction from the

property belonging to lunatic cannot be challenged for non-compliance of the Mental Health Act,

1987. Provision of section 50 of the Mental Health Act do not contemplate appointment of

guardian in eviction proceeding.1

Order XXXII, rule 2, Code of Civil Procedure provides that where a suit is instituted without

next friend of minor, the plaint may be order to be taken off the file on an application by the

defendant. Where a suit is instituted by next friend of a minor on his behalf, the court may at any

stage of the suit order for security to be furnished by the next friend in view of the provisions of

order XXXII, rule 2A.

Order XXXII, rule 3, Code of Civil Procedure provides that where the defendant is a minor, the

court on being satisfied of the fact of his minority, shall appoint a guardian for such minor. An

order for the appointment of guardian for the suit may be obtained upon application in the name

and on behalf of the minor or by the plaintiff on the basis of an application supported by an

affidavit verifying the fact; notice of such application shall be served on the proposed guardian

for the suit for minor. The court may also issue notice to the minor as well. Sale of minors

property by natural guardian after guardian ad liten was discharged is not valid if the minor on

attaining majority does not challenge it.2

Where a decree against a minor is passed due to gross

negligence on the part of his next friend, the minor can file a suit to set aside the decree.3

But,

1Raj Kumat v. Rameshchand, AIR 1999 SC 3511

2Divya Dip Singh v Ram Bachan Mishra, AIR 1997 SC !465

3Asharfi Lal v Koili, AIR 1995 SC 1440


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order XXXII, rule 3A, code of Civil Procedure provide that decree against minor shall not be set

aside unless prejudice has been caused to his interest.

Order XXXII, rule 4 code of Civil Procedure deals with competence of a person to act as next

friend or to be appointed guardian of a minor for the suit. But no person shall be appointed

guardian of a minor without his consent in writing.

Order XXXII, Rule 5 provides for representation of minor by his next friend or guardian for the

suit. Order XXXII, Rule 6 provides that a next friend or guardian for the suit shall not without

the leave of the court teceive any money or other property on behalf of a minor under the decree

for the minor. Under Order XXXII, rule 7, an agreement or compromise by next friend or

guardian of minor for the suit as prohibited without the leave of court.

Order XXXII, Rule 8 deals with the retirement of next friend. A next friend or guardian of a

minor cannot retire without first procuring a fit person for substituting him and giving security

for the cost already incurred by him.

Order XXXII, Rule 9 deals with the removal of next friend. The Court may remove a next friend

or guardian of a minor, if it is satisfied that

i. His interest is adverse to that of the minor orii. He is so connected with the opposite party that it is unlikely that the interest of the minor

will be properly protected by him or

iii. He does not discharge his duty oriv. He ceases to stay in India during the pendency of the suit orv. There is any other sufficiently justifiable cause.

Order XXXII, Rule 12-14 provides provision related to situation when minor attain majority. It

says a minor plaintiff may adopt any of the following courses:

i. He may proceed with the suit. In that case he shall apply for an order discharging thenext friend or guardian and for leave to proceed in his own name. (rule 12 (1-3))

ii. He may abandon the suit and apply for its dismissal on repayment of cost to thedefendant or to his guardian or next friend. (rule 12(4))


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iii. He may apply for dismissal of the suit on the ground that it was unreasonable orimproper. (rule 14)

iv. Where he is a co-plaintiff, he may repudiate the suit and may apply to have his namestruck off as co-plaintiff. If the court finds that he is not a necessary party, it may dismiss

him form the suit. But if he is necessary party, the court may make him a defendant.(

rule 13)


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CRIMINAL PROCEEDING

A separate adjudicating and treatment mechanism has been established for persons below 18

years of age who have committed an offence. They are not to be treated in the same manner

as are treated adult offenders. The reason for this being that a young person is believed to be

less blameworthy than an adult, as he is prone to act in haste due to lack of judgment,

easily influenced by others. ...from their inception, youth justice systems have proceeded

from the assumption that children and young people, by dint of their relative immaturity,

are less able to control their impulses, less able to understand the seriousness of their

offences and less able to foresee the consequences of their actions. Linked to this is the belief

that the culpability of many young offenders may be further mitigated by the poverty,

cruelty or neglect they have suffered.4

Furthermore, the punishment meted out to adults is

perceived to be too harsh to be borne by a young person.

I. CRIMINAL RESPONSIBILITYThe domestic laws of all countries have laid down a minimum age below which a person is

exempt from prosecution and punishment. The rationale for such exemption is the absence of

mens rea, i.e., not to criminalise the acts of those who at the time of commission of the

crime did not know the right from the wrong. Persons below that age do not realize nor intend

the consequences of their acts. Article 40(3)(a) of CRC requires State Parties to promote the

establishment of a minimum age below which children shall be presumed not to have the

capacity to infringe the penal law. The age of criminal responsibility in India is fixed at 7 years

by IPC. Section 82 IPC:

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

Hence, under Indian law a child below 7 years of age cannot be prosecuted and will not

enter the juvenile justice system as a juvenile in conflict with law. If such child falls within thedefinition of child in need of care and protection

5, he could be produced before the Child

Welfare Committee for his care, protection and rehabilitation. Most European countries have

4Youth justice in England and Wales, John Pitts, contained in The New Politics of Crime and Punishment, edited

by Roger Matthews & Jock Young, Willan Publishing, pg.715

Section 2(d) of JJA 2000


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fixed the age of criminal responsibility between 13 to 15 years; France, Poland, Germany,

Italy and Finland have fixed it at 13, 13, 14, 14, and 15 years, respectively. Seven years is a very

low age of criminal responsibility, and requires to be raised.

The law has recognized that a person between the age of 7 and 18 years is less culpable than an

adult, and has set-out different levels of criminal responsibility depending upon the childs

maturity and age. Section 83 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.

The accused child to avail of this defence will have to prove that he is below 12 years of age and

that he has not attained adequate maturity of understanding therefore he did not know that

what he was doing was wrong. Under the Indian law children between 7 to 12 years of age

having sufficient maturity and between 12 to 18 years who have committed an offence are

responsible for their criminal acts, but are not to be treated or sentenced in the same manner as

an adult. Such children will be dealt with under juvenile legislation, and the focus will be on

reforming and rehabilitating them.

II. PROCEDURE UNDER JUVENILE LEGISLATIONThe procedure prescribed under JJA 2000 will govern cases concerning juveniles in

conflict with law irrespective of the offences they have committed. Juvenile offenders are not to

be treated in the same manner as adult accused. Juveniles are to be treated differently as they

are less culpable and less capable of looking after themselves6. Juvenile legislation lays down a

distinct custodial, adjudicatory and sentencing mechanism. The severity of the offence is of no

consequence, nor that the offence is covered under a special law7

or local law8. The Supreme

Court and different High Courts have held that juvenile legislation shall reign supreme in

6 Relevant date for applying the Juvenile Justice Act, Dr. Ved Kumari, (2000) 6 SCC (Jour) 97

Special law is a statute relating to a particular subject, and creates offences that are not covered under IPC. For

example, the Immoral Traffic (Prevention) Act 1956, the Narcotic Drugs & Psychotropic Substances Act 1985, the

Arms Act 19598

Local law is a statute that is applicable within a specific region. For example, the Bombay Police Act 1951, the

Maharashtra Control of Organised Crime Act 1999


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juvenile cases no matter the nature of offence committed9. To avoid any doubts in this respect,

JJA 2000 unequivocally states :

Section 1(4): Notwithstanding anything contained in any other law for the time being in force

the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or

sentence of imprisonment of juveniles in conflict with law under such other law.

Hence, whatever crime the juvenile is alleged to have committed, on ascertaining that he is a

juvenile his case should be brought before Juvenile Justice Board and his custody be with the

Observation Home. Thereafter the course taken should be that as set-out under juvenile

legislation.

9Raj Singh vs. State of Haryana : (2000) 6 SSC 759; 2000 SCC (Cri) 1270.


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LEGAL DISABILITY OF MINOR UNDER LIMITATION ACT, 1963

Statutes of limitations are designed to aid defendants. A plaintiff, however, can prevent the

dismissal of his action for untimeliness by seeking to toll the statute. When the statute is tolled,

the running of the time period is suspended until some event specified by law takes place.

Tolling provisions benefit a plaintiff by extending the time period in which he is permitted to

bring suit.

Various events or circumstances will toll a statute of limitations. It is tolled when one of the

parties is under a legal disabilitythe lack of legal capacity to do an actat the time the cause

of action accrues. A child or a person with a mental illness is regarded as being incapable of

initiating a legal action on her own behalf. Therefore, the time limit will be tolled until some

fixed time after the disability has been removed. For example, once a child reaches the age of

majority, the counting of time will be resumed. A personal disability that postpones the operation

of the statute against an individual may be asserted only by that individual. If a party is under

more than one disability, the statute of limitations does not begin to run until all the disabilities

are removed. Once the statute begins to run, it will not be suspended by the subsequent disability

of any of the parties unless specified by statute.

Mere ignorance of the existence of a cause of action generally does not toll the statute of

limitations, particularly when the facts could have been learned by inquiry or diligence. In cases

where a cause of action has been fraudulently concealed, the statute of limitations is tolled until

the action is, or could have been, discovered through the exercise of due diligence. Ordinarily,

silence or failure to disclose the existence of a cause of action does not toll the statute. The

absence of the plaintiff or defendant from the jurisdiction does not suspend the running of the

statute of limitations, unless the statute so provides.

The statute of limitations for a debt or obligation may be tolled by either an unconditional

promise to pay the debt or an acknowledgement of the debt. The time limitation on bringing a

lawsuit to enforce payment of the debt is suspended until the time for payment established under

the promise or Acknowledgment has arrived. Upon that due date, the period of limitations will

start again.


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I. SECTION 6 - LEGAL DISABILITY(1) Where a person entitled to institute a suit or make an application for the execution of a

decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an

idiot, he may institute the suit or make the application within the same period after the disabilityhas ceased, as would otherwise have been allowed from the time specified therefor in the third

column of the Schedule.

(2) Where such person is, at the time from which the prescribed period is to be reckoned,

affected by two such disabilities, or where, before his disability has ceased, he is affected by

another disability, he may institute the suit or make the application within the same period after

both disabilities have ceased, as would otherwise have been allowed from the time so specified.

(3) Where the disability continues up to the death of that person, his legal representative may

institute the suit or make the application within the same period after the death, as would

otherwise have been allowed from the time so specified.

(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the

person whom he represents, affected by any such disability, the rules contained in sub-sections

(1) and (2) shall apply.

(5) Where a person under disability dies after the disability ceases but within the period allowed

to him under this section, his legal representative may institute the suit or make the application

within the same period after the death, as would otherwise have been available to that person had

he not died.

Explanation.-For the purposes of this section, 'minor' includes a child in the womb.

II. SECTION 7- DISABILITY OF ONE OF SEVERAL PERSONSSection 7 supplements Section 6 and explains about the disability of one of several persons andits effects.

Where one of several person jointly entitled to institute a suit or make an application for the

execution of a decree is under any such disability, and a discharge can be given without the

concurrence of such person, time will run against them all; where no such discharge can be


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given, time will not run as against any of them until one of them becomes capable of giving such

discharge without the concurrence of the others or until the disability has ceased.

Explanation I.--This section applies to a discharge from every kind of liability, including a

liability in respect of any immovable property.

Explanation II.--For the purposes of this section, the Manager of a Hindu undivided family

governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the

concurrence of the other members of the family only if he is in management of the joint family

property.

III. SECTION 8 - SPECIAL EXCEPTIONSSection 8 says that suits for pre-emption are not governed by Section 6 and 7 of the act andinspite of the disability, they must be proceeded with and no extension of time will be given of

the disability of the Plaintiff.

Nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall be

deemed to extend, for more than three years from the cessation of the disability or the death of

the person affected thereby, the period of limitation for any suit or application.


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APPLICATION FOR BAIL UNDER JUVENILE JUSTICE ACT, 2000

IN THE HONBLE COURT OF SESSION, AT PATNA

Appeallate Criminal Jurisdiction

In Criminal Appeal No. 223 of 2012

In the matter of application under

section 52 of Juvenile Justice Act,

2000

AND

In the matter of :

Ram, gender-male, age- 12yrs, resident of Patna, son of Shyam Kumar, gendermale, are- 30

being minor represented through his father ..JUVENILE /APPELLANT

VERSUS

State of Bihar...RESPONDENT

Aggrieved by the Order 223/2012 dated 23-

03-2012 passed by the Honble Juvenile

Justice Board, Patna whereby application for

bail on behalf of the applicant has been

dismissed.

MOST RESPECTFULLY SHOWETH:

That the appellant named above was arrested by the police in the case FIR No. 223/2012dated 23-09-2011 under section 378 IPC and was produced before the learned Judges of

Juvenile Justice Board, Patna on which they were remanded to judicial custody. The


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application and he was remanded to judicial custody. On dated 01-01-2012, the father of

the appellants moved an application before 1st

Class Magistrate, Patna for holding an

enquiry regarding the age of the accused /Juvenile. After taking evidence regarding the

age of the appellant the Honble court of1st

Class Magistrate, Patna hold the accused as

juvenile on dated 05-04-2012 and the case file was transferred to the court of Juvenile

Justice Board, Patna on the same day. On the same day the appellant moved an

application for bail through his father before the Juvenile Justice Board, Patna and the

same was dismissed by 223/2012 vide order dated 23-04-2012 and aggrieved by the

same, the present appeal is being filed on the following amongst other grounds:

GROUNDS IN APPEAL

1. That the FIR in this case was registered on the basis of a statement made by informantfather of the prosecutrix on the ground that I am resident of Patna stating that I am poor

and I am having 5 children.

2. That the allegations as levelled are totally false, concocted and fabricated. No such acthas been committed by the applicant and he has been implicated on mere suspicious.

3. That the applicant is the Juvenile and the date of birth of the applicant is 23-04-2000 asper the School records and Board of School education (C.B.S.E) records.

4. That the appellant is entitled to be released on bail and he being the minor cannot be keptin custody.

5. That the present appeal is being filed before this Honble court without any delay and thisHonble court is fully empowered under section 52 of the juvenile justice Act, 2000 to

entertain and adjudicate upon the present appeal.

PRAYER

It is, therefore most respectfully prayed that in view of the submissions made and in the interest

of justice, this Honble court may kindly be pleased to set aside the impugned order dated 23-03-

2012 passed by the learned lower court and the appellant be released on bail forthwith till the

final decision of the case.


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Dated: 23-04-2012

AFFIDAVIT

Ram Kumar, son of Shyam Kumar, resident of Patna, being minor represented through his father

Shyam Kumar

Through counsel Dated

_____ Advocate, ___ 23-04-2012


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CONCLUSION

From the above discussion, it is found that a minor in India have different specific legal status. It

is firmly believe under Indian law that children and young people are less able to control their

impulses, less able to understand the seriousness of their acts and less able to foresee the

consequences of their actions. There are many instances where a minor acquire rights, liberty,

power and immunity.

The Constitution of India guarantees all children certain rights, which have been specially

included for them. These include:

Right to free and compulsory elementary education for all children in the 6-14 year agegroup (Article 21 A).

Right to be protected from any hazardous employment till the age of 14 years (Article24).

Right to be protected from being abused and forced by economic necessity to enteroccupations unsuited to their age or strength (Article 39(e)).

Right to equal opportunities and facilities to develop in a healthy manner and inconditions of freedom and dignity and guaranteed protection of childhood and youth

against exploitation and against moral and material abandonment (Article 39 (f))

Under Code of Civil Procedure, 1908, a minor is disqualified from representing a suit in civil

procedure. Order 32 has been specially enacted to protect the interest of minors in civil suit.

Every suit by a minor should be instituted in his name by his guardian or next friend. Where a

suit is instituted against the minor, the court should appoint a guardian ad litem to defend the

suit.

Under criminal procedure for minor, the Juvenile Justice (Care and Protection of Children) Act

2000 was enacted. It is a separate adjudicating and treatment mechanism established for

persons below 18 years of age who have committed an offence. The procedure prescribed

under JJA 2000 will govern cases concerning juveniles in conflict with law irrespective of

the offences they have committed.


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Section 6 and 8 of limitation act, 1963, provides that limitation period that is 3 years starts from

the date of attainment of majority where the ordinary period of limitation of limitation expires

before cessation of liability i.e. before the date of majority.

In the modern age scenario, where minors are 'minors' only because of their age and not their

'level of understanding', its high time the Law Commission of India makes these laws a little

more stringent, at least towards minors who fraudulently enter into contracts. Currently, even if a

minor 'falsely represents' himself to be a major and enters into a contract, there is no relief

available to the other contracting party. Which does not suffice the 'aim' of creating laws, that is

to provide the people with justice. The 'law of estoppel' does not apply to a minor. This means

that like in the above statement, if a minor represents himself to be a major, he is ALLOWED to

later state that he is not, and then get away with it. The contract is just declared by the Court as

'void ab intio'.

Numerous amendments have been made till date for the betterment of the existing laws and

various sections of the law repealed to make them more just and unbiased, but unfortunately

there still are many lacunas in the law which the minors take undue advantage of and the majors

are the ones who have to bear the brunt, without any fault of theirs.


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BIBIOGRAPHY

BOOK REFFERED:- Gupta, Shriniwas, The Limitation Act, Universal Law Publishing Mitra, B.B. and Mallick, M.R., The Limitation Act, Eastern Law House, 21 Ed

2005

Thakker, Justice C.K., Civil Procedure, Eastern Book Company, 5 Ed Rp 2007 Gupta, Vinay Kumar, Mulla Code Of Civil Procedure (Abridged), Lexisnexis

Butterworths Wadhwa Nagpur, 14th Edition, 2005 (Reprint 2011)

ARTICLE REFFERED:- Adenwalla, Ms. Maharukh, CHILD PROTECTION AND JUVENILE JUSTICE

SYSTEM for Juvenile in Conflict with Law, CHILDLINE India Foundation,

December 2006

ONLINE REFERENCE:- http://www.legallyindia.com/Blogs/Entry/need-for-reformation-in-laws-relating-

to-minors

http://www.lawyersclubindia.com/experts/Legal-disability-in-Limitation-Act-1963-114926.asp

http://www.indiadebtrecovery.com/indian-law/effect-legal-disability.html

minority vs. legal disability in different proceedings

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