Infancy in Criminal Law - Overview, Structure, Properties & Uses

Infancy in Criminal Law

Edited By Ritika Jonwal | Updated on Jul 02, 2025 06:33 PM IST

Committing a crime entails criminal liability, and all substantive aspects of criminal law are covered by India's official criminal code, the Indian Penal Code (IPC). Nevertheless, Chapter 4 of the Indian Penal Code (Sections 76–106) has many broad exceptions, with infancy covered in Sections 82 and 83.

This Story also Contains

What is Infancy
Criteria Dustingushing Liability of a Child
Infancy Under IPC
Laws Related to Children in India
Case Laws on Infancy
Conclusion

Infancy in Criminal Law

The Indian evidence law stipulates that the burden of proof rests with the accused in cases when the Indian criminal code's Chapter 4 broad exceptions are invoked. A standard legal test known as "Actus Reus Non-Facit Reum Nisi Mens Sit Rea" states that generally speaking, an individual who acted without mental culpability is not criminally accountable.

What is Infancy

Infancy is a legal defence to being held liable for a crime, given the age of the perpetrator. It asserts that because the culprit is too young to be a criminal, he is immune from prosecution. The idea behind the infancy defence is that juvenile offenders are too immature to be thinking about committing crimes.

In India, an individual under the age of eighteen is deemed a child, and Sections 82 and 83 of the "Indian Penal Code" provide for the defence of infancy under criminal liability. In Gopinath Ghosh v. State of West Bengal, the Supreme Court heard the defence of infancy for the first time.

Criteria Dustingushing Liability of a Child

Children under the age of seven are granted complete immunity under S.82 of the IPC.
S.83 of the IPC grants qualified immunity to children between the ages of seven and twelve; the child's mental capacity is the deciding element.
Children who are 12 to 18 years old are governed under the Juvenile Justice (Care and Protection of Children) Act of 2015.

For children between the ages of 12 and 15, the maximum penalty is one year in jail, and for those between the ages of 16 and 17, the maximum punishment is two years in prison. A juvenile over 16 who commits a severe crime would be tried as an adult in court due to the prevalence of gang rape in Delhi.

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Infancy Under IPC

Section 82 IPC

This provision makes it clear that a child under the age of seven cannot be legally punished for whatever offence they commit. It is believed that children under the age of seven lack the mens rea necessary to understand the nature and consequences of their actions and to commit any crime, based on the idea of Doli Incapax, which means incapable of committing any crime. He is incapable of distinguishing between good and wrong.

To claim a defence under section 82 of the IPC,1860, the defendant must prove their case. If successful, they are granted an absolute exception, which means that no evidence can find the child guilty.

In the case of, Marsh v. Loader The accused observed a child removing a stick from his territory. It was concluded that the child did not understand the consequences of his conduct because he was younger than seven years old. He was therefore declared not guilty.

Section 83 IPC

According to this clause, a child who commits an offence after the age of seven but before the age of twelve is accountable for his actions and must understand the consequences of his actions. based on the concept of Doli capax, which means "capable of a wrongdoing," and applies if the accused has the mental ability to comprehend the activities that he has taken. Qualified immunity is granted to the child.

The prosecution must demonstrate that there was a reasonable mental understanding with actus reus, while the child has the burden of proof under this exemption to show that he was between the ages of seven and twelve at the time of the conduct and was unaware of the consequences of the act. According to S.83 of the IPC, the child's mental comprehension is a necessary prerequisite.

Laws Related to Children in India

An economy's development index is determined by the quality of its human capital. Since children are this nation's future, the state has an increased obligation to ensure that they grow up healthy and productive citizens. Because similar legal systems are so common, our legal system has several rules designed to prevent harm to children. Section 82 of the Indian Penal Code (IPC) states that nothing committed by a child who is older than seven but younger than twelve and who has the mental ability to understand the nature and danger of anything is considered an offence. According to section 89 of the IPC, unless the guardian or another legally responsible party gives their express or implied consent, no action taken in good faith for the benefit of a person under the age of twelve or who is mentally incompetent is illegal because it does not cause harm to the person it is intended to cause, knows it will cause, or may cause.

Section 317 IPC

To protect children from being abandoned or left in danger by their parents, Section 317 of the Indian Penal Code states that any parent who is responsible for a child under the age of twelve and exposes or leaves the child in any location with the intent of completely abandoning the child will face the punishment of either a fine or a term of imprisonment up to seven years.

Section 361 IPC

Section 361 of the Indian Penal Code states that any individual who takes or entices a minor, male or female, under the age of sixteen, or the age of eighteen, or any person of unsound mind, out of the custody of their lawful guardian, without the guardian's consent, is considered to have abducted the minor or person from lawful guardianship. Section 363 of the IPC describes the punishment for this offence as follows: a maximum sentence of seven years in prison and a fine is imposed on anyone found kidnapping a person from India or under legal care. This ensures the security of kids.

Section 369 IPC

As to the Indian Penal Code's Section 369, one who kidnaps or abducts children under the age of ten intending to steal their moveable property faces a maximum sentence of seven years in prison and a fine. Section 363A of the IPC makes it unlawful to kidnap or maim a child to beg to stop minors from being taken for this reason.

Section 366A IPC

To protect young women from sexual offences As per the Indian Penal Code's Section 366A, an individual who, by any means, coerces a minor girl under the age of eighteen to leave a place or undertake any action knowing that the girl might be coerced or seduced into engaging in illicit sexual relations with another person, faces a maximum of ten years in prison and a fine.

Section 372 IPC

Section 372 of the Indian Penal Code states that anyone who sells, rents out, or otherwise disposes of a person under the age of eighteen with the intention that the person will be used or employed for prostitution, illicit sex with another person, or any other unlawful or illegal purpose, or who knows or suspects that the person will be used or employed for any such purpose at any age, faces up to ten years in prison (or similar punishment).

Section 373 IPC

As per the provisions of Section 373 of the Indian Penal Code, an individual who purchases, employs, or otherwise acquires the possession of a person under the age of eighteen intending to use or employ that person for prostitution or illicit sexual relations with another person for any immoral or unlawful purpose may be subject to a fine of up to ten years in prison.

Case Laws on Infancy

In the case of, Hirelal Mallick v. State of Bihar

In this case, Because of an argument between the deceased and their father, a 12-year-old boy and his two older brothers murdered the deceased. They took fleas from the crime scene and swung a sword at the deceased's throat. The child was found to be aware of his behaviours and their repercussions. There was no proof to suggest that the child lacked the maturity to recognize the seriousness of his acts. As a result, the Indian Penal Code's Section 326 found him guilty.

In the case of, Kakoo v. the State of Himachal Pradesh

In this instance, the 13-year-old accused sexually assaulted a 2-year-old girl child. It was discovered that the accused was fully aware of his actions. Consequently, the mother of the victim was fined Rs. 2000 and he was sentenced to a year of hard imprisonment. The punishment was reduced in light of section 83, which states that if the defendant cannot be considered an adult, they cannot be punished as such.

Conclusion

This article discusses the provisions of infancy in the Indian Penal Code 1980. According to IPC, an infant is someone who is below the age of seven years. Infants under IPC who are under seven years of age given in section 82 of IPC cannot be held liable for their actions as an infant is not that mature enough to decide between right and wrong. According to section 83, a child whose age is between seven to twelve is given qualified immunity from offence because of the mental element present in such a case.

Frequently Asked Questions (FAQs)

1. What is infancy in IPC?

According to Section 82 of the Indian Penal Code, any conduct by a kid younger than seven years old is an infant.

2. What is section 82 of IPC?

According to section 82 IPC, It is believed that children under the age of seven lack the mens rea necessary to understand the nature and consequences of their actions and to commit any crime, based on the idea of Doli Incapax, which means incapable of committing any crime.

3. What is the difference between Section 82 and 83 IPC?

IPC Section 82 offers children under 7 years old complete exemption from criminal culpability, whereas Section 83 offers children between 7 to 12 years old partial immunity if they do not have the necessary mental development.

4. What is infancy defence in Criminal law?

Infancy is a legal defence to being held liable for a crime, given the age of the perpetrator. It asserts that because the culprit is too young to be a criminal, he is immune from prosecution.

5. Is nothing an offence which is done by a child under the age of 7 years?

Anything done by a child under the age of seven is not considered an offence, according to Section 82 of the Indian Penal Code (IPC).

6. At what age does the infancy defense typically no longer apply?

The age at which the infancy defense no longer applies varies by jurisdiction. In many common law countries, children under 7 are considered incapable of committing a crime. Between 7 and 14, there's a rebuttable presumption of incapacity. Above 14, children are generally treated as adults in criminal proceedings, though juvenile justice systems may apply.

7. How does the concept of doli incapax relate to the infancy defense?

Doli incapax is Latin for "incapable of evil" and is closely related to the infancy defense. It refers to the presumption that children below a certain age (usually 14) lack the capacity to commit a crime. This presumption can be rebutted if the prosecution can prove the child understood the wrongfulness of their actions.

8. Can the infancy defense be used for all types of crimes?

In theory, the infancy defense can be applied to any crime. However, its application may vary depending on the severity of the offense. For serious crimes, courts may be more inclined to scrutinize the child's understanding and capacity more closely, potentially limiting the effectiveness of the defense.

9. How does the infancy defense relate to the concept of mens rea in criminal law?

The infancy defense is closely tied to the concept of mens rea (guilty mind). It's based on the principle that young children lack the mental capacity to form criminal intent or understand the wrongfulness of their actions. Essentially, the infancy defense argues that a child cannot possess the necessary mens rea to be held criminally responsible.

10. How does the infancy defense interact with juvenile justice systems?

The infancy defense often determines whether a child enters the juvenile justice system at all. If successful, it may prevent criminal proceedings entirely. However, even when the infancy defense doesn't apply, many jurisdictions have separate juvenile justice systems that focus more on rehabilitation than punishment for offenders below a certain age (often 18).

11. How does the infancy defense differ from the insanity defense?

While both defenses relate to mental capacity, the infancy defense is based on a child's developmental immaturity, whereas the insanity defense applies to adults (or older minors) who lack the mental capacity to understand their actions due to mental illness or cognitive impairment. The infancy defense is age-specific, while the insanity defense can apply at any age.

12. How does the infancy defense relate to the concept of diminished responsibility?

While the infancy defense is based on a complete lack of capacity due to age, diminished responsibility is a partial defense that can reduce culpability for adults or older minors. Both concepts acknowledge that mental state affects criminal responsibility, but the infancy defense is more absolute and age-specific.

13. What is the relationship between the infancy defense and the principle of culpability in criminal law?

The infancy defense is closely tied to the principle of culpability, which holds that criminal punishment should only be imposed on those who are blameworthy. The defense recognizes that young children lack the mental capacity to be truly culpable for their actions, aligning with the fundamental principle that criminal law should punish only those who choose to do wrong with understanding of their actions.

14. What is the difference between absolute and rebuttable presumptions of incapacity in the context of the infancy defense?

An absolute presumption of incapacity means that children below a certain age (often 7) are considered incapable of committing a crime, and this presumption cannot be challenged. A rebuttable presumption (often applied to children between 7 and 14) means that while the child is presumed incapable, this presumption can be overturned if there's sufficient evidence that the child understood the wrongfulness of their actions.

15. How does the infancy defense affect plea bargaining in cases involving young offenders?

The availability of the infancy defense can significantly impact plea bargaining. Prosecutors may be more willing to offer diversion programs or reduced charges knowing that a full defense is possible. Conversely, in cases where the defense might be overcome, the threat of full prosecution might be used to encourage acceptance of rehabilitative measures.

16. What alternatives to criminal prosecution are typically considered for young offenders?

Alternatives may include diversion programs, counseling, community service, educational interventions, or referral to child welfare services. The focus is often on rehabilitation and addressing underlying issues rather than punishment. In some cases, the child's parents or guardians may be held civilly responsible for the child's actions.

17. How does the United Nations Convention on the Rights of the Child address the issue of criminal responsibility for children?

The UN Convention on the Rights of the Child encourages states to establish a minimum age of criminal responsibility. It doesn't specify an exact age but recommends that it should not be set too low. The convention emphasizes the importance of considering a child's age and maturity in legal proceedings and promotes alternatives to judicial proceedings for children in conflict with the law.

18. What criticisms exist regarding the infancy defense?

Critics argue that the age limits are arbitrary and don't account for individual differences in maturity and understanding. Some contend it may be exploited by adults using children to commit crimes. Others argue it may prevent children from receiving needed interventions. There's also debate about whether it adequately balances public safety with child welfare.

19. How has neuroscience research influenced discussions about the infancy defense?

Neuroscience research has shown that brain development, particularly in areas responsible for decision-making and impulse control, continues into early adulthood. This has led to discussions about raising the age of criminal responsibility and has been used to support arguments for more lenient treatment of juvenile offenders, even beyond the traditional age limits of the infancy defense.

20. How does the application of the infancy defense vary internationally?

The age of criminal responsibility varies widely across countries. For example, it's 10 in England and Wales, 12 in Canada, 14 in Germany, and 15 in Sweden. Some countries, like the United States, have no federal standard and allow states to set their own ages. These differences reflect varying cultural, social, and legal perspectives on childhood and criminal responsibility.

21. What is the historical origin of the infancy defense?

The infancy defense has roots in English common law, dating back to the 14th century. It was based on the idea that young children lacked the moral capacity to commit crimes. The age of 7 was traditionally used as the cutoff, likely influenced by the Catholic Church's age of reason, when a child was deemed capable of distinguishing between right and wrong.

22. What is the infancy defense in criminal law?

The infancy defense is a legal principle that recognizes children below a certain age lack the mental capacity to form criminal intent. It assumes young children cannot fully understand the consequences of their actions or distinguish right from wrong, and therefore should not be held criminally responsible.

23. How does the infancy defense relate to the concept of moral development in psychology?

The infancy defense aligns with psychological theories of moral development, such as Piaget's and Kohlberg's, which suggest that moral reasoning develops in stages throughout childhood and adolescence. The defense recognizes that young children may not have reached a stage of moral development where they can be held fully responsible for their actions.

24. What is the relationship between the infancy defense and the concept of parens patriae in juvenile law?

The doctrine of parens patriae, which positions the state as a guardian for children and other vulnerable individuals, aligns with the principles behind the infancy defense. Both recognize the special status of children in the legal system. When the infancy defense applies, it often triggers the state's parens patriae role to provide care and guidance rather than punishment.

25. What is the significance of the "rule of sevens" in relation to the infancy defense?

The "rule of sevens" is a common law principle that divides childhood into three stages for purposes of criminal responsibility: under 7 (absolute immunity), 7-14 (rebuttable presumption of incapacity), and over 14 (full responsibility). While not universally applied, this rule has influenced many legal systems and continues to shape discussions about age and criminal responsibility.

26. What factors do courts consider when determining if a child understood the wrongfulness of their actions?

Courts consider various factors, including the child's age, maturity, intelligence, education, family background, and the nature and complexity of the alleged offense. They may also look at the child's behavior before and after the incident, and any statements made by the child about their understanding of the act.

27. Can a child be held civilly liable even if the infancy defense prevents criminal prosecution?

Yes, in many jurisdictions, a child may still be held civilly liable for damages even if they cannot be criminally prosecuted due to the infancy defense. However, the standards for civil liability may be different, and courts often consider the child's age and capacity when determining liability and damages.

28. What role do psychological evaluations play in cases involving the infancy defense?

Psychological evaluations can be crucial in cases where the infancy defense is invoked, especially for children in the rebuttable presumption age range. These evaluations assess the child's cognitive development, understanding of right and wrong, and capacity to form criminal intent. Expert testimony from psychologists often plays a key role in court decisions.

29. What is the significance of the phrase "knowing right from wrong" in relation to the infancy defense?

"Knowing right from wrong" is often a key consideration in applying the infancy defense, especially for children in the rebuttable presumption age range. Courts assess whether a child understood the moral wrongfulness of their actions, not just whether they knew the act was against the law. This reflects the principle that criminal responsibility requires a basic moral understanding.

30. How does the infancy defense interact with strict liability offenses?

Strict liability offenses are those that don't require proof of criminal intent. In theory, this could conflict with the infancy defense, which is based on the inability to form criminal intent. However, in practice, most jurisdictions still apply the infancy defense to strict liability offenses, recognizing that children below a certain age should not be held criminally responsible regardless of the offense type.

31. Can the infancy defense be waived, and if so, under what circumstances?

Generally, the infancy defense cannot be waived by the child or their guardians, as it's considered a matter of legal capacity rather than a tactical decision. However, as children approach the upper age limits of the defense, courts may be more willing to consider evidence of the child's maturity and understanding, effectively limiting the defense's application.

32. How does the infancy defense interact with laws regarding juvenile delinquency?

The infancy defense often serves as a gateway to the juvenile justice system. Children below the age of criminal responsibility may be dealt with through child welfare systems rather than juvenile courts. For older children, failure of the infancy defense may lead to proceedings in juvenile court, where the focus is typically more on rehabilitation than punishment.

33. How does the infancy defense affect the rights of victims in criminal cases?

When the infancy defense prevents criminal prosecution, it can impact victims' rights and their sense of justice. However, many jurisdictions have mechanisms to address this, such as civil remedies against parents or guardians, or restorative justice programs that allow victims to participate in the resolution process even when formal criminal charges aren't pursued.

34. How does the infancy defense relate to international human rights law regarding children's rights?

International human rights law, particularly the UN Convention on the Rights of the Child, emphasizes the best interests of the child and the importance of age-appropriate treatment in the justice system. The infancy defense aligns with these principles by recognizing children's developmental limitations and prioritizing welfare over punishment.

35. What role does legislative intent play in interpreting and applying the infancy defense?

Legislative intent is crucial in understanding how the infancy defense should be applied. Courts often look at the purpose behind laws establishing age limits for criminal responsibility, which typically aim to protect children from the harsh consequences of the criminal justice system while also addressing public safety concerns. This intent guides the interpretation and application of the defense.

36. How does the infancy defense interact with laws regarding status offenses for juveniles?

Status offenses are acts that are only considered offenses when committed by minors, such as truancy or running away. The infancy defense may have limited application to status offenses, as these are already specific to juveniles. However, the principles behind the infancy defense often influence how status offenses are handled, emphasizing rehabilitation over punishment.

37. What is the relationship between the infancy defense and the concept of evolving capacities in children's rights?

The concept of evolving capacities recognizes that children's abilities develop over time. This aligns with the infancy defense, particularly in jurisdictions with rebuttable presumptions of incapacity. Both concepts acknowledge that children's understanding and responsibility grow with age, requiring a nuanced approach to their treatment in legal systems.

38. How does the infancy defense affect the principle of deterrence in criminal law?

The infancy defense challenges traditional notions of deterrence in criminal law. It recognizes that young children may not be deterred by the threat of punishment due to their limited understanding. This shifts the focus from deterrence to prevention through education, support, and early intervention for at-risk children.

39. What considerations come into play when applying the infancy defense to children with developmental disabilities?

For children with developmental disabilities, the application of the infancy defense may be more complex. Courts may need to consider not just the child's chronological age, but also their developmental age and specific cognitive abilities. This can lead to a more individualized assessment of capacity, potentially extending the defense to older children with significant developmental delays.

40. How does the infancy defense relate to the principle of proportionality in criminal sentencing?

The infancy defense embodies the principle of proportionality by recognizing that it's unjust to impose adult-level punishments on children who lack adult-level understanding. Even when the defense doesn't fully apply, its underlying principles often influence sentencing decisions for young offenders, promoting more lenient and rehabilitative approaches.

41. What is the significance of the phrase "age of discretion" in discussions about the infancy defense?

The "age of discretion" refers to the point at which a child is deemed capable of distinguishing between right and wrong and forming criminal intent. This concept is central to the infancy defense, particularly in determining the age range for rebuttable presumptions of incapacity. It acknowledges that moral and cognitive development occurs gradually and varies among individuals.

42. How does the infancy defense interact with laws regarding the transfer of juveniles to adult court?

The infancy defense typically applies to younger children and may prevent their cases from entering the court system at all. However, for older children beyond the defense's scope, questions of maturity and capacity similar to those in the infancy defense often arise in decisions about whether to transfer a case to adult court, influencing the overall handling of juvenile offenders.

43. What role does cultural context play in the application of the infancy defense?

Cultural context can significantly influence the application of the infancy defense. Different cultures may have varying perspectives on childhood, responsibility, and the appropriate age for criminal culpability. This can lead to challenges in multicultural societies and in international law, where differing cultural norms must be reconciled with legal standards.

44. How does the infancy defense relate to theories of retributive justice?

The infancy defense challenges pure retributive theories of justice, which focus on punishment proportional to the offense. By asserting that young children lack the capacity for true culpability, the defense suggests that retribution is inappropriate for this group. This aligns more closely with rehabilitative and restorative approaches to justice for young offenders.

45. What is the relationship between the infancy defense and the concept of moral luck in criminal law?

Moral luck refers to the way factors outside an individual's control can affect moral judgments about their actions. The infancy defense relates to this concept by recognizing that a child's age - a factor outside their control - significantly impacts their culpability. This highlights the role of chance (being born earlier or later) in determinations of criminal responsibility.

46. How does the infancy defense affect the application of mandatory minimum sentences for certain crimes?

The infancy defense, where applicable, typically overrides mandatory minimum sentences by preventing criminal charges altogether. Even in cases where the defense doesn't fully apply, its principles often influence courts to make exceptions to mandatory minimums for young offenders, recognizing their reduced culpability and capacity for rehabilitation.

47. What is the significance of the term "mischief rule" in interpreting laws related to the infancy defense?

The mischief rule is a principle of statutory interpretation that considers the problem (or "mischief") that a law was designed to remedy. In the context of the infancy defense, courts might use this rule to interpret the intent behind age-of-responsibility laws, balancing the need to protect children from harsh punishments with the aim of addressing harmful behavior.

48. How does the infancy defense relate to the concept of restorative justice?

The infancy defense aligns well with restorative justice principles. Both recognize that traditional punitive approaches may be inappropriate for young offenders. When the infancy defense prevents criminal prosecution, restorative justice practices can provide an alternative way to address harm, involve victims, and focus on rehabilitation and reintegration of the young person.

49. What challenges arise in applying the infancy defense to online or cyber crimes committed by children?

Applying the infancy defense to cyber crimes can be challenging because children often display greater technological sophistication than adults expect.