Chapter II

THE CHILD: CONCEPT, DEFINITION

AND RIGHTS
2.1 INTRODUCTION

There are multiple variations in the definitions of the age of the child, all
over the world. Almost in every sphere, age limits formally regulate children‟s
activities, such as age for school admission, age for marriage, age for casting
vote, age for adulthood, age for joining services, and age to enter into
employment. Generally, the age limits differ from activity to activity and from
country to country.1 The Census of India defines persons below the age of
fourteen as children. The age at which a person ceases to be a child also varies
under different laws. The word Child has been used in various legislations as a
term indicating capacity and as term requiring specific protection. Following
are some of the Legislative provisions relating to age of the child under various
legislations which shows the dilemma of legal age of the child in India.

2.2 THE DILEMMA OF THE LEGAL AGE OF THE CHILD

The problem begins with the very definition of a child under the law.
There are several grey areas in the law here.2 Who is a child? When does
Childhood cease? These simple questions have complex answers. Age limits
differ from activity to activity and from country to country and, in India, for
legislation to legislation. The word “child” in Indian laws has been used in
various forms of legislation as term denoting relationship, a term indicating
capacity, or as a term of special protection. Underlying these alternative
specifications are very different concepts about the child.

1
The State of Worlds Children, UNICEF, 1997.
2
Asha Bajpai. Child Rights in India-Law, Policy and Practice (New Delhi: Oxford University Press,
Second Impression, 2006).
 The Child: Concept, Definition and Rights

The Indian Majority Act, 1875 was enacted basically to bring about
uniformity in the applicability of laws to person of different religions. It
provides. unless a particular personal law specifies otherwise, every person
domiciled in India is deemed to have attained majority upon completion of
eighteen years of age. But in case of a minor for whose person or property or
for both, a guardian has been appointed or declared by any Court of Justice
the majority may be attained before the age of eighteen years.3

The word child has not been defined under the Constitution of India or
under the General Clauses Act, 1873. However the word child cannot be said n
he identical with the word minor.

Under the Indian Contract Act, 1872, a person below the age of eighteen
years has no capacity to contract.4

The Hindu Minority and Guardianship Act, 1956 (HMGA) defines a

minor, as a person who has not completed the age of eighteen years.5 Under
Muslim Law also, the age of Majority is completion of eighteen years. Even
under the Christian Law6 and Parsi Law7 the age of Majority is completion
eighteen years. However, the age of marriage, under the Prohibition of Child
Marriage Act, 2006 is twenty one years for males and eighteen years for
females.8

The Mines (Amendment) Act, 1952 defines the age at which a person
can enter in employment. It says, no person below eighteen years of age shall
be allowed to work in any mine or any part thereof.9 Further, the Factories Act,

3
Section 3, The Indian Majority Act, 1875.
4
Section 3, The Indian Contract Act. 1872.
5
Section 4(a), The Hindu Minority and Guardianship Act. 1956.
6
Section 3, The Christian Marriage Act, 1872, minor means a person who has not completed the age of
twenty-one year and who is not a widower or a widow.
7
Section 2, The Parsi Marriage and Divorce Act, 1936.
8
Section 2(a), The Prohibition of Child Marriage Act, 2006.
However, the Law Commission of India has recommended that for boys also, marriageable age should
be reduced to eighteen years from twenty one years, The Times of India, 16 th February. 2009.
9
Section 2(b), The Mines (Amendment) Act, (1952).

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 The Child: Concept, Definition and Rights

1948 lays down that a child below fourteen years of age is not allowed the
work in any factory.10 Any adolescent between fifteen and eighteen years can
he employed in a factory only if he obtains a certificate of fitness from an
authorized medical doctor.11 A child between fourteen and eighteen years of
age cannot be employed for more than four and a half hours.12

The Apprentices Act, 1961 states that a person is qualified to he engaged

as an apprentice only if he is not less than fourteen years of age and satisfies
such standards of education and physical fitness as may be prescribed.13 Under
the Indian Penal Code, 1860, there are various age limits for various purposes.
Such as for the purposes of criminal liability the age limit is seven years 14 and
in certain cases twelve years,15 for the purpose of protecting a child from
kidnapping, abduction and related offences, the age of the child is sixteen years
in case of boys and eighteen years in case of girls.16 Legally a girl can marry at
the age of eighteen years however, for sex consent, the age is sixteen years.
The age of marriage for boy is twenty one years.17

Under the Immoral Trafficking (Prevention) Act, 1986, child18 has been
defined as, a person who has not completed the age of eighteen years. A minor
under this Act means a person whose age is between sixteen and eighteen rears
of age.

10
Section 2(c), The Factories Act (1948).
11
Section 2(b), Ibid.
12
Section 71, Ibid.
13
Section 4, The Apprentices Act, (1961).
14
Section 82 IPC: Nothing is an offence which is done by a child under seven years of age.
15
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 the nature and consequences
of his conduct on that occasion.
16
Section 361 IPC: Whoever, takes or entices any minor under sixteen years of age if a male and under
eighteen years of age if a female or any person of unsound mind out of the keeping of lawful guardian,
is said to kidnap such minor or person from lawful guardianship.
17
Section 375(vi) IPC: A person is said to commit rape upon a woman with or without her consent
when she is under sixteen years of age impliedly to mean that sex with the consent of a woman above
sixteen years will not be Rape.
375 (Exception): Sexual intercourse by a man with his own wife, the wife, not being under fifteen
years of age is not Rape.
18
Section 2(aa), The Immoral Trafficking (Prevention) Act, 1986.

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 The Child: Concept, Definition and Rights

Under the Child Labour (Prohibition and Regulation) Act, 1986, a child
means a person, who has not completed his fourteen years of age,19 and is
prohibited from working in hazardous processes. However, children of fourteen
years and above can work in hazardous industries. The various State Shops and
Establishment Acts define the age of child between twelve and fifteen years.20

Under The Juvenile Justice (Care and Protection of Children) Act, 2015
the age of majority is eighteen years for both boys and girls. 21 Under the
Commission for Protection of Child Rights Act, 2005, the word Child has not
been defined anywhere, but from the objective of the Act, it appears that the
Commission for Protection of Child Right has adopted the definition provided
under the Convention on the Rights of the Child (CRC) i.e. children upto the
age of eighteen years.22 The Code of Criminal Procedure states the juvenile
means a person who is under the age of sixteen years. The recently passed
Right of Children to Free and Compulsory Education Act, 2009, defines child
to mean a male or female child of the age of six to fourteen years.23

A child may have been rescued from labour or trafficking and brought
before the police. A parent may walk in with a child to lodge a FIR alleging
sexual abuse. A child victim of a brutal sexual assault may be found abandoned
on the roadside by a patrolling police vehicle. After providing immediate
comfort to the child and the person accompanying the child, the police may
have to prima facie determine the age of the person, particularly to determine
whether the victim is indeed a child under the JJ Act, 2015, POCSO Act, 2012,
or other relevant laws. This is crucial because certain child-friendly procedures
need to be followed and legal provisions applied if the victim is a child. For

19
Section 2(ii), The Child Labour (Prohibition and Regulation) Act, 1986.
20
Section 2(c), The Karnataka Shops and Establishment Acts, 1961, defines the age of child as 14
years.
21
Section 2(k), The Juvenile Justice (Care and Protection of Children) Act, 2000
22
Preamble of The Commission for the Protection of Child Rights Act. 2005.
23
Section 2(c), The Rights of Children to Free and Compulsory Education Act, 2009.

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 The Child: Concept, Definition and Rights

instance, if the child rescued from labour appears to be above 14 years, relevant
provisions pertaining to exploitation of a child employee under the JJ Act, 2015
and the CALPRA will have to be applied. If a victim of penetrative sexual
assault or sexual assault is below 12 years, the offence will be aggravated under
the POCSO Act.

Thus, it can be observed that various Acts do not have a uniform

definition of the term child. All the statutes vary the upper age limit between
fourteen, sixteen and eighteen years. The variation goes further, as Article 45
of the Constitution specifies that the State shall endeavour to provide an early
childhood care and protection for all children until they complete the age of six
years. Fundamental Right to Education under Article 21A of the Constitution is
restricted the age limit for compulsory education up to fourteen years. Keeping
in view the aforesaid flexibility and variation, it is strongly felt that the age for
a person to be a child should be increased to eighteen years. Even the POSCO
Act (Protection of Children from Sexual Offence Act, 2012) is subject to
criticism on age issues. According to this law, a sexual offence can only be
called so if it is Committed with or without the consent of a child below
fourteen years of age or without the consent of a child above sixteen years,
whereas this Act sets sixteen years as the definite age of children. Voting and
marriage laws set the age at eighteen years and twenty-one years for girls and
boys respectively. Clearly, there is disparity and the fact that Indian law does
not recognize a uniform age for children, often leads to complications. Under
these alternative specifications, the term child as provided in various statutes is
viewed as burden who invokes rights to maintenance and support.

2.3 INADEQUACY OF THE DEFINITION OF CHILD

Constitutionally children are recognized as resources for the country‟s

development, necessitating their nurturing and advancement. It seems that there

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 The Child: Concept, Definition and Rights

does not appear to be any criterion or scientific parameter regarding the

definition of child. Keeping this in view it is necessary that the age of the
children should be brought in conformity to the Child Rights Convention, 1989
i.e. below eighteen years of age. The idea of review of the definition of child in
the light of Article 1 of the Convention of the Child Rights has been under
consideration with the Law Commission of India.

In spite of various definitions, the definition of the term child covered

under various Indian laws is not uniform and adequate. Different statutes
prescribe different maximum age limits, but no legislation gives the minimum
age when the child may be called as a „person “as it is not clear whether an
unborn child can be treated as a victim of child abuse. The Black‟s Law
Dictionary defines child as unborn or recently born human being. The term
includes or applies to the adopted, unborn, after horn, illegitimate (child horn
out of unlawful wedlock), or legitimate child (child horn in lawful wedlock).

As for rights of unborn child, medical authority has recognized since

long that a child is in existence (alive) from the moment of conception and for
many purposes its existence is recognized by the law. The criminal law regards
unborn child as a separate legal entity.24 Even the preamble of United Nations
Charter declares rights of the child, before as well as after birth, which is
nowhere mentioned under Indian Legislations. An unborn child can also be
subjected to child abuse by parents and sometimes by others.

According to the Convention on the Rights of Child, Article 1 defines

child as every human being below the age of eighteen years unless under the
law applicable to the child, majority is attained earlier.25 The United Nation

24
Section 299 IPC, 1860, Culpable Homicide (explanation3). The causing of the death of a child in the
mother‟s womb is not homicide. But it may amount to culpable homicide to cause the death of a living
child if any part of that child has been brought forth, though the child may not have breathed or being
completely born.
25
Article 1, United Nations Convention on the Rights of the Child, 1989.

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 The Child: Concept, Definition and Rights

Child Rights Convention definition of child, however, grants individual

countries the discretion to determine by law whether childhood ceases at
twelve, fourteen or whatever age is found appropriate. This was done to avoid
debates over abortion which could have threatened the acceptance of the Child
Right Convention. A Committee set up by the National Commission for Child
Rights has adopted the United Nations Child Rights Convention definition.

There is now incontrovertible evidence26 that adolescence is a period of

significant changes in brain structure and function. Although most of this work
has appeared just in the past 15 years, there is already strong consensus among
developmental neuroscientists about the nature of this change. And the most
important conclusion to emerge from recent research is that important changes
in brain anatomy and activity take place far longer into development than had
been previously thought. Reasonable people may disagree about what these
findings may mean as society decides how to treat young people, but there is
little room for disagreement about the fact that adolescence is a period of
substantial brain maturation with respect to both structure and function.

(a) Structural Changes in Brain: Four specific structural changes27 in the

brain during adolescence are noteworthy.

 First, there is a decrease in gray matter in pre-frontal regions of

the brain, reflective of synaptic pruning, the process through
which unused connections between neurons are eliminated. The
elimination of these unused synapses occurs mainly during
preadolescence and early adolescence, the period during which

26
L. Steinberg, “Asocial Neuroscience Perspective on Adolescent Risk-Taking, “Developmental
Review 28 (2008) 78-106.
27
Laurence Steinberg, should the Science of Adolescent Brain Development Inform Public Policy?
This article is adapted from the annual Henry and Bryna David Lecture, which was delivered at the
National Academy of Sciences on November 3, 2011.

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 The Child: Concept, Definition and Rights

major improvements in basic cognitive abilities and logical

reasoning are seen, in part due to these very anatomical changes.

 Second, important changes in activity involving the

neurotransmitter dopamine occur during early adolescence,
especially around puberty. There are substantial changes in the
density and distribution of dopamine receptors in pathways that
connect the limbic system, which is where emotions are
processed, and rewards and punishments experience, and the
prefrontal cortex, which is the brain‟s chief executive officer.
There is more dopaminergic activity in these pathways during the
first part of adolescence than at any other time in development.
Because dopamine plays a critical role in how humans experience
pleasure, these changes have important implications for
sensation-seeking.

 Third, there is an increase in white matter in the prefrontal cortex

during adolescence. This is largely the result of myelination, the
process through which nerve fibers become sheathed in myelin, a
white, fatty substance that improves the efficiency of brain
circuits. Unlike the synaptic pruning of the prefrontal areas,
which is mainly finished by mid-adolescence, myelination
continues well into late adolescence and early adulthood. More
efficient neural connections within the prefrontal cortex are
important for higher-order cognitive functions-planning ahead,
weighing risks and rewards, and making complicated decisions,
among others-that are regulated by multiple prefrontal areas
working in concert.

 Fourth, there is an increase in the strength of connections

between the prefrontal cortex and the limbic system. This

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 The Child: Concept, Definition and Rights

anatomical change is especially important for emotion regulation,

which is facilitated by increased connectivity between regions
important in the processing of emotional information and those
important in self-control. These connections permit different
brain systems to communicate with each other more effectively,
and these gains also are ongoing well into late adolescence. If
you were to compare a young teenager‟s brain with that of a
young adult, you would see a much more extensive network of
myelinated cables connecting brain regions.

(b) Functional Changes in Brain: Adolescence is not just a time of

tremendous change28 in the brain‟s structure. It is also a time of
important changes in how the brain works, as revealed in studies using
functional magnetic resonance imaging, or FMRI. These imaging
studies reveal that adolescent brain:

 First, over the course of adolescence and into early adulthood,

there is a strengthening of activity in brain systems involving
sell-regulation. During tasks that require self-control, adults
employ a wider network of brain regions than do adolescents, and
this trait may make self-control easier, by distributing the work
across multiple areas of the brain rather than overtaxing a smaller
number of regions.

 Second, there are important changes in the way the brain

responds to rewards. When one examines a brain scan acquired
during a task in which individuals who are about to play a game
are shown rewarding stimuli, such as piles of coins or pictures of
happy faces, it is usually the case that adolescents‟ reward centers
28
L. Steinberg and E. Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity,
Diminished Responsibility, and the Juvenile Death Penalty.” American Psychologist 58 (2003) pp.
1009-1018.

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 The Child: Concept, Definition and Rights

are activated more than occurs in children or adults.

(Interestingly, the age differences are more consistently observed
when individuals are anticipating rewards than when they are
receiving them). Heightened sensitivity to anticipated rewards
motivates adolescents to engage in acts, even risky acts, when the
potential for pleasure is high, such as with unprotected sex, fast
driving, or experimentation with drugs.

 A third change in brain function over the course of adolescence

involves increase in the simultaneous involvement of multiple
brain regions in response to arousing stimuli, such as pictures of
angry or terrified faces. Before adulthood, there is less cross-talk
between the brain systems that regulate rational decision making
and those that regulate emotional arousal. During adolescence,
very strong feelings are less likely to be modulated by the
involvement of brain regions involved in controlling impulse,
planning ahead, and comparing the costs and• benefits of
alternative courses of action. This is one reason why
susceptibility to peer pressure declines as adolescents grow into
adulthood; as they mature, individuals become better able to put
the brakes on an impulse that in aroused by their friends.

These structural and functional changes29 do not all take places along
one uniform timetable, and the differences in their timing raise two important
points relevant to the use of neuroscience to guide public policy. First, there is
no simple answer to the question of when an adolescent brain becomes an adult
brain. Brain systems implicated in basic cognitive processes reach adult levels
of maturity by mid-adolescence, whereas those that are active in self-regulation
do not fully mature until late adolescence or even early adulthood. In other

29
L. Steinberg, “A Social Neuroscience Perspective on Adolescent Risk-taking,” Developmental
Review 28 (2008) pp. 78-106.

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 The Child: Concept, Definition and Rights

words, adolescents mature intellectually before they mature socially or

emotionally,30 a fact that helps explain why teenagers who are so smart in some
respects sometimes do surprisingly dumb things.

There is another kind of a synchrony in brain development during

adolescence that is important for public policy. Middle adolescence is a period
during which brain systems implicated in how a person responds to rewards are
at their height of reusability but systems important for self-regulation are still
immature. The different timetables followed by these different brain systems
create a vulnerability to risky and reckless behavior that is greater in middle
adolescence than before or after. It‟s as if the brain‟s accelerator is pressed to
the floor before a good braking system is in place. Given this, it‟s no surprise
that the commission of crime peaks around age 17, as does first
experimentation with alcohol and marijuana, automobile crashes, accidental
drowning, and attempted suicide.

If we adopt a single definition of the childhood age, it will have far

reaching consequences. For this purpose United Nation Child Right
Convention’s definition of the child should be universally adopted. This will
certainly be a step forward for protection of child rights especially in the field
of education, as lakhs of children who are in the age group of fifteen to
eighteen years remains deprived of free and compulsory education. Thus there
is a need to lay down the definitions of child in keeping with the above
observations.

There have been others who don‟t think on the above lines. They have
been pressurizing the government and the civil society to reduce the age of the
criminal responsibility so that the juveniles who commit the most heinous

30
R. Dahl, “Adolescent Brain Development: A Period of Vulnerabilities and Opportunities,” Annals of
the New York Academy of Sciences 1012 (2004) pp. 1-22.

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 The Child: Concept, Definition and Rights

crimes should be sent to the adult prisons. This line of thinking is based on
following grounds:31

Firstly, juveniles should be no less accountable than adults. One voice

that has spoken out for tougher legislation is that of Dr. Don Boys, the
international director of the Christian/Conservative Think Tank Common Sense
for Today and a former member of the Indiana House of Representatives. His
argument against leniency is forceful:

We are told that kids murder, mug and maim because they grew up in
poverty; however, poverty doesn‟t cause crime; crime causes poverty.
Juveniles, like adults, commit crimes because they choose to do so. And they
must be held accountable..... when young criminals kill and rape, they should
be treated like adults, even executing them. Most of us are horrified at that
though, hut if capital punishment can be defended then who is to say one must
be 21? If a 16-year-old commits a vicious murder, who says he should not pay
with his life...so the message to kids should be clear, concise and conclusive.
No free ride until 18. No anonymity. No blaming poverty, parents or potty
training for criminality. No more community service for rape and murder. Even
the dullest teen will understand that society considers leniency lunacy and a
thing of the past.32

Secondly, Trying Juveniles as adults can protect the society. it‟s

certainly true that many children and adolescents who have broken the law
have simply stumbled down the wrong path and can benefit from the
rehabilitative services that are a part of any good juvenile facility‟s programme.
However, it is also true that there are a small number of juveniles who are so
far beyond any possible help that many people think it would be dangerous to

31
Kevin Hue, Point-Counterpoint: Trial of Juveniles as Adults, Chelsea House Publishers Philadelphia
(2003).
32
Don Boys. “Criminal Children: the Lunacy of Leniency.” Common Sense for Today,
www.cstnews.com/Code/CrimeChild.htm.retrieved on 7th January 2015.

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 The Child: Concept, Definition and Rights

allow them to ever roam the streets again. Some researchers have classified
these offenders as “super-predators” who are unusually cruel and feel no
remorse for the things they have done. They are, according to one researcher, a
“new breed of youth who kill intentionally, remorselessly, and gleefully.” 33

Thus there is need to balance both these perspectives that is of reducing

the age of “child” or maintain it at 18 years. We have laid down both the
perspectives before the readers both in support of maintaining it at 18 years and
reducing it below 18 years.34 Recently, the Indian Parliament reduced it to 16
years under the Juvenile Justice (Amendment) Bill, 2014 which is yet to
become law but for the assent of the President of India. The debates are going
on in the Indian civil society about this regressive step on the part of Indian
legislature.

2.4 CONCEPT OF CHILD RIGHTS

The children have equal value as other human beings. The best interest
of the child should be the primary consideration; the weight should be given to
the child‟s opinion. Every child without any exception whatsoever shall be
entitled to basic fundamental rights without distinction or discrimination on
account of race, colour, sex, language and religion and political and social
background.35 The child shall be entitled from his birth, to a name and a
nationality.36 The Child shall be protected from practices which may foster
social, religious and any other form of discrimination and shall be brought up
in a spirit of understanding.

According to the Commission for Protection of Child Rights Act, 2005,

Child Rights37 includes the Children‟s Rights adopted in the United Nations

33
Kathleen M. Heide. “Why Kids Keep Killing: The Correlates, Causes, and Challenge of Juvenile
Homicide,” Stanford Law and Policy Review 7 (Winter 1995-96):43.
34
Ibid. p. 48.
35
Principle 1, United Nation Declaration on Child Rights, 1959.
36
Principle 3, Ibid.
37
Section 2(b), The Commission for the Protection of Child Rights Act, 20005.

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 The Child: Concept, Definition and Rights

Convention on the Rights of the Child on 20 November, 1989 and ratified by

the Government of India on 11th December, 1992.

Under this Convention the Civil Rights of children included the right to
a name and a nationality, protection from torture and maltreatment, special
rules governing the circumstances and conditions under which children may be
deprived of their liberty or separated from their parents. The Economic Rights
under the Child Rights Convention include the right to get benefit from social
security, the right to a standard of living, which is adequate to ensure proper
development and protection form exploitation at work.

The Social Rights includes the right to the highest attainable standard of
health services, the right to social care for handicapped children, protection
from social exploitation and abduction, and access to appropriate information.
The Cultural rights of the children under the Child Right Convention include
recreation, leisure and participation in artistic and cultural activities. The Right
to Survival of a child includes the right to life, the highest attainable standards
of health and nutrition and adequate standards of living. The Right to
Protection of the child includes freedom from all forms of exploitation, abuse,
inhuman or degrading treatment and neglect, including the right to special
protection in situations of emergency and armed conflicts.

The Right to Development includes the right to education, support for

early childhood development and care, social security and the right to leisure
recreation and cultural activities. The right to participation includes the respect
for the views of the child, freedom of expression access to appropriate
information and freedom of thought conscience and religion.

The United Nation Committee on the Rights of the Child has identified a
thematic clustering of Child Rights as laid down in Article 4, 42 and 44 of the
Child Rights Convention. These Articles highlight the need to constantly

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 The Child: Concept, Definition and Rights

review the relevance of the existing legislations and the importance of bringing
national legislation in conformity with the Convention. The Child Rights
Convention is guided by the principle that the essential needs of children are
met all the time.

The Convention stresses that the rights shall be extended to all children
without discrimination of any kind irrespective of the child‟s or his or her
parents or legal guardian‟s race, nationality, colour, sex, language, religion,
political or other opinion, social origin, property, disability, and birth or other
status.38 In all matters relating to the placement of a child outside the care of
the child‟s own parents, the best interest of the child, particularly need for
affection and right to security and continuing care, should be the paramount
consideration.

2.5 EXPLOITATION OF CHILD AND VIOLATIONS OF CHILD

RIGHTS

Child welfare has been given considerable importance both nationally

and internationally. But it is also true that child abuse and Child Rights
violation is rampant at large scale. According to Black’s Law Dictionary,39
child abuse is defined as any form of cruelty to a child‟s physical, moral or
metal wellbeing. It is also used to describe some forms of sexual attack which
may or may not amount to rape. To make it wider, the Black‟s Law Dictionary
defines Abused and Neglected Children, as those children who are suffering
serious physical or emotional injury inflicted on them, including malnutrition.

According to David Gil, child abuse is the intentional, non-accidental

use of physical force or intentional, non-accidental acts of omission on the part

38
The Right to be A Child: UNICEF, New Delhi, India 1992.
39
5th Edition.

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 The Child: Concept, Definition and Rights

of a parent or other caretaker interacting with a child in his or her care, aimed at
hurting, injuring or destroying that child.40

These definitions do not include all forms of abuses to which children

are usually subjected to, by their parents. The term abuse is much wider and
will cover all the aspects of neglect as well. Yet, it is necessary to distinguish
between abused and neglected children. As Sussman and Cohen maintain:41

“An exploited child shall mean a person under eighteen years of

age who is suffering from serious physical harm or sexual
exploitation, caused by those responsible for the care or others
exercising temporary or permanent control over the child, and the
neglected child shall means the one, whose physical and mental
conditions are seriously impaired as a result of the failure on the
part of those responsible for his care, or other, exercising
temporary or permanent control over the child to provide
adequate food, shelter, clothing, physical protection or medical
care necessary to sustain the life and health of the child”.

Child exploitation is a state of emotional, physical, economic and sexual

maltreatment meted out to a person below the age of eighteen years and is a
globally prevalent phenomenon. The extent, magnitude and trend of the
problem have not been understood properly in the developing countries. The
growing complexities of life and the dramatic changes brought about by
socioeconomic transition in India have played a major role in increasing the
vulnerability of children to various and newer forms of abuse. Child abuse is a
violation of basic human rights of a child and is an outcome of a set of inter-
related, familial, social, psychological and economic factors. The problem of
child abuse and human rights violation of‟ a child is one of the most critical
maters on the International Human Rights agenda. The term child abuse may
have different cultural milieu and socio-economic situations.

40
David G. Gil. Violence Against Children-Physical Child Abuse in the United States, Harvard
University Press (1st Edn., 1970); (revised Edn., 1970).
41
Alan, Sussman and Stephen J. Cohen. Reporting Child Abuse and Neglect: Guideline for Legislation,
Cambridge, Mas Ballingar, (1975).

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 The Child: Concept, Definition and Rights

Under the Juvenile Justice (Care and Protection of Children) Act, 2000,
“Child in need of care and protection”42 means a child who:

 Is found begging or who is a street child or a working child;43

 Is found without having any home or settled place of abode and without
any ostensible means of subsistence;

 Who resides with a person (whether a guardian of the child or not) and
such person has threatened to kill or injure the child and there is a
reasonable likelihood of the threat being carried out, or has killed,
abused or neglected some other child or children and there is a
reasonable likelihood of the child in question being killed, abused or
neglected by that person;

 Who is mentally challenged or ill, or children suffering from terminal

diseases or incurable diseases having no one to support or look after;

 Has a parent or guardian who is unfit or incapacitated to exercise control

over the child;

 Lives in a brothel or with a prostitute or frequently goes to any place

used for the purpose of prostitution or is found to associate with any
prostitute or any other person who leads an immoral, drunken or
deprived life;

 Who is being or is likely to be grossly abused, tortured or exploited for

the purpose of sexual abuse or illegal acts;

 Who is found vulnerable or is likely to be inducted into drug abuse or

trafficking;

 Who is a victim of any armed conflict: civil commotion or natural

calamity.
42
Section 2(d), The Juvenile Justice (Care and Protection of Children) Act, 2000.
43
Added by Juvenile Justice (Amendment) Act, 2006.

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 The Child: Concept, Definition and Rights

A universal definition of child abuse in the Indian context does not exist
and requires to he defined. According to World Health Organization, child
abuse may have varied facets such as physical abuse, sexual abuse, emotional
abuse and neglect.

Physical abuse can he understood as inflicting of physical injury upon a

child. This may include beating, hitting, punching, shaking, kicking, burning or
otherwise harming a child. Some of the parents or caretakers may not have
intended to hurt the child. It may however he the result of over discipline or
physical punishment that is inappropriate for the child‟s age.

Sexual abuse means inappropriate sexual behavior with a child. It

includes fondling a child‟s genitals, intercourse, incest, rape, sodomy,
exhibitionism and sexual exploitation. To be considered as child abuse these
acts have to he committed by a person responsible for the care of a child (i.e.,
parents, relatives, guardian, institutional authorities or a teacher). If these acts
are committed by a stranger, then it would be considered as sexual assault and
handled solely by the police and criminal courts.

Emotional abuse is also known as verbal abuse, mental abuse and

psychological maltreatment. It includes acts or the failures to act by parents or
caretakers that have caused or could cause serious behavioral, cognitive, and
emotional or mental trauma. This can include parents and caretakers using
extreme or bizarre forms of punishment such as confinement in a closet or dark
room or being tied to a chair for long periods of time or threatening or
terrorizing a child. Less severe acts, but no less damaging are belittling or
rejecting treatment, using derogatory terms to describe the child, habitual
tendency to blame the child or make him or her a Scapegoat.

According to the United States Congress, the terms child abuse and
neglect means physical and mental injuries, sexual abuse and exploitation,

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 The Child: Concept, Definition and Rights

neglectful treatment or maltreatment of children of less than eighteen years of

age.

The World Health Organization‟s World Report on Violence and

Health, has defined violence against children as the intentional use of physical
force or power, against oneself, another person or against group or community
resulting in injury, death, psychological mal-development or deprivation.

The United Nations Study on Violence against Children44 across the

world and what can be done about it basically focuses on violence that happen
when someone uses their strength or their position of power to hurt someone
else purposely, not by accident. Violence includes threats and acts which could
possibly cause harm, as well as those that actually do the harm to a person‟
feelings, their mind or their general health and wellbeing as well as to their
body. It also means harm people do to themselves including killing themselves.
For United Nations Study children are everyone under the age of eighteen years
and violence against children includes:

 All forms of physical or mental violence, injury and abuse (harming

body or mind);

 Neglect or had treatment;

 Maltreatment or exploitation, including sexual abuse and exploitation

(such as child prostitution);

 Trafficking (sale and trading) of children;

 Child abuse is any form of violence against children, when it is done by

someone who is responsible for them or has power over them and that
they should be able to trust (such as parents, other close family members
and teachers).

44
P.S. Pinheiro, 2006, http://www.popline.org as accessed on 24.02.2019.

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 The Child: Concept, Definition and Rights

The definition of child abuse according to a study45 conducted by the

Ministry of Women and Child Welfare refers to, the intended, unintended and
perceived maltreatment of the child, whether habitual or not, including:

 Psychological and physical abuse, neglect, cruelty, sexual and emotional

maltreatment;
 Any act, deed or word that debases, degrades or demean the intrinsic
worth and dignity of a child as a human being;
 Unreasonable deprivation of his or her basic needs for survival such as
food and shelter, or failure to give timely medical treatment to an injured
child resulting in serious impairment of his or her growth and
development or in his or her permanent incapacity or death;
 Inflicting physical injury upon a child, i.e. hitting, kicking, beating or
otherwise harming a child physically;
 Emotional abuse such as verbal abuse, mental abuse and psychological
maltreatment. It also includes failure to act by parents, caretakers, peers
and others who have caused or could cause serious behavioral,
cognitive, emotional or mental distress or trauma to the child‟s;
 Inappropriate sexual behavior including fondling of child‟s genitals,
making the child fondles an adult‟s genitals, sexual assault (intercourse,
incest, rape and sodomy), exhibitionism and pornography. To be
considered as child abuse, these acts have to be committed by neighbors,
relatives, extended family members, peers, older children, friends, and
strangers or by a day care provider;
 Child neglect is an act of omission or commission leading to the denial
of a child‟s basic needs. Neglect can be physical, educational, emotional
or psychological. Physical neglect means denial of food, clothing,
appropriate medical care or supervision. It may also include

45
Study on Child Abuse India, 2007, Ministry of Women and Child Welfare, Government of India in
association with Prayas, a Non-Governmental Organization working towards Child Right (2007).

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 The Child: Concept, Definition and Rights

abandonment, failure to provide appropriate Schooling or special

educational needs and lack of emotional support and love.

To constitute the aforesaid behaviors as child abuse, these acts must he

committed by the person who is responsible for the child‟s welfare.

2.6 CONTRASTS BETWEEN CHILD ABUSE, CHILD NEGLECT

AND CHILD RIGHT VIOLATIONS

According to Dr. Nuzhat Parveen Khan,46 child exploitation is a positive

act towards the exploitation of child, while neglect is omission or failure of
some obligations. Abuse is a wider term and covers in its definition or failure
of some obligations. Abuse is a wider term and covers in its definition all the
aspects of neglect also. The two terms can he described further as follows:

• Purposely for begging, prostitution or any other immoral and illegal

activity.

• Beating mercilessly, more than their authoritative right.

• Making them subject to over work or works in hazardous factories

which is unsuitable to their weak physique and tender age.

Child neglect means failure to provide for the child‟s basic needs. Child
Neglect can be categorized as, Physical Neglect, Emotional Neglect and
Educational Neglect. Physical neglect involves failure to meet the child‟s basic
physical requirements such as food, shelter, clothing, health, appropriate
medical care, supervision or proper weather protection (heat or cold). It also
includes abandonment of child. Educational neglect means failure to provide
appropriate Schooling or special educational needs. Emotional Neglect means
failure to meet the child‟s emotional and psychological needs.

46
Dr. Nuzhat Parveen Khan. Child Rights and The Law. Universal Law Publishing, Second Edition,
pp. 30.

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 The Child: Concept, Definition and Rights

Psychological neglect also includes lack of any emotional support and

love, never attending to the child and substance abuse including allowing the
child to participate in drug and alcohol use. Emotional and psychological
maltreatment of the children is the most complex type of abuse as it is invisible
and difficult to define.

Who has defined the emotional abuse to include, the failure to provide a
developmentally appropriate, supportive environment including the availability
of a primary attachment figure so that the child can develop stable and full
range of emotional and social competencies commensurate with their personal
potentials and in the context of the society in which the child dwells. There
may also he acts towards the child that cause or have a high probability of
causing harm to the child‟s health or physical, mental, spiritual, moral or social
development. These acts must he reasonably within the control of the parents
or person in a relationship of responsibility, trust or power. These acts include
restriction of movement, patterns of belittling, denigrating, scapegoating,
threatening, scaring, discriminating, ridiculing or other non-physical form of
hostile or rejecting treatments.

The recent United Nations Secretary General‟s Study on Violence

Against Children47 has also highlighted the difficulties in defining emotional
abuse. According to this study, the standard definition of emotional abuse is
lacking and very little is known about the global extent of this form of violence
except that it frequently accompanies other forms of abuse, e.g. there can be
strong co-existence between psychological and physical violence against
children in violent households. According to this study, psychological forms of
punishment are common across regions. The World Studies of Abuse in the
Family Environment48 (WSAFE) indicated that shouting, screaming or cursing

47
www.ohchr.org as accessed on 21.06.2019.
48
www.ncbi.nlm.mih.gov as accessed on 21.06.2019.

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 The Child: Concept, Definition and Rights

children are kinds of punishment practiced by parents in almost all the

countries.

A study conducted by Tulir (NGO) and Save the Child Sweden reported
that the problem of emotional abuse is universal among child domestic
servants. Most of them have faced its varied forms such as shouting, cursing,
verbally abusing, threatening and locking in a room etc. on the other hand the
Study on Child Abuse49 has come with the following indications of emotional
abuse:

 Humiliation: Humiliation of a child refers to the degradation of the self-

esteem of a child by parent, caregivers or any other person, often in the
presence of others, creating harshly damaging effects of shouting,
belittling, and name calling and using abusive language while
addressing children.

 Comparison: Parents and other caregivers often compare one sibling

with the other or one child with the other in terms of physical
appearance and other characteristics, which affects the social, emotional
and intellectual development of a child.

 Child Sexual Abuse: The subject of child sexual abuse is still a taboo in
India. There is a conspiracy of silence around the subject and a very
large percentage of people feel that this is largely a Western problem
and that child sexual abuse does not happen in India. An important
reason for this of course lies in a traditional conservative family and
community structure that does not talk about sex and sexuality at all.
Parents do not speak to children about sexuality as well as physical and
emotional changes that take place during their growing years. As result
of this, all forms of sexual abuse that a child faces do not get reported to

49
www.unicef.org as accessed on 21.06.2019.

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 The Child: Concept, Definition and Rights

anyone. A girl, whose mother has not spoken to her even about a basic
issue like menstruation, is unable to tell her mother about the uncle or
neighbor who has made sexual advances towards her.

This silence encourages the abuser and he is emboldened to continue the

abuse and to press his advantage to subject the child to more severe forms of
sexual abuse. Very often children do not even realize that they are being
abused. In a study on Women’s Experiences of Incest and Childhood Sexual
Abuse conducted by Rahi.50 some of the respondents have stated that till the
questionnaire was administered to them they (lid not realize that they had been
abused as children. They had buried the incident as a painful and shameful one,
not to he ever told to anyone.

Some deep seated feat has always moved Indian families to keep their
girls and their virginity safe and many kinds of social and cultural practices
have been built around ensuring this. This shows that there is knowledge of the
fact that a girl child is unsafe, though nobody talks about it. However, this fear
is only around girls and the safety net is generally not extended to boys.
Despite this, there is enough evidence as well as other studies which prove that
boys are equally at risk to suffer sexual abuse.

The World Health Organization has defined child sexual abuse, as the
involvement of a child in sexual activity that he or she does not fully
comprehend is unable to give informed consent to, or that violates the laws or
social taboos of society. Child sexual abuse is evidenced by this activity
between a child and an adult or another child, who by age or development is in
a relationship of responsibility, trust or power, the activity being intended to
gratify or satisfy the needs of the other person.

50
A Non-Governmental Organization.

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 The Child: Concept, Definition and Rights

The Standing Committee on Sexually Abused Children, 1984 has stated

that any child below the age of consent may be deemed to have been sexually
abused when a sexually mature person has by design or by neglect, of their
usual social or specific responsibilities in relation to the child, engaged or
engagements of the child in activity sexual in nature, which is intended to lead
to the sexual gratification of the sexually mature person. This definition is very
ambiguous as it is not clear whether or not it involves any genital or physical
contact or whether or not it is initiated h the child.

Sakshi51 defines child sexual abuse as any behavior at a person under

sixteen without that person‟s informed consent. According to Sakshi child
sexual abuse is the physical or mental violation of a child with sexual intent,
usually by an older person, who is in some position of power or trust with the
child. Sexual abuse of a child takes place in the family, in the neighborhood, in
School, in institutions and on the streets. The abuser generally a male usually
violates a relationship of trust with the child, taking advantage of his power and
position.

Child sexual abuse and neglect is the intentional, non-accidental injury,

maltreatment of children by parents, caretakers, employers or others including
those individuals representing governmental, Non-Governmental bodies which
may lead to temporary or permanent impairment of child‟s physical, mental,
psycho-social development, disability or death.

The Children‟s Act 1989 of Britain defines child sexual abuse as the
involvement of dependent, developmentally immature children and adolescents
in sexual activities they do not normally comprehend, to which they are unable
to give informed consent, or that which violate the social taboos of family
roles. This definition under English law introduced the concepts of informed
consent and dependent because it is the dependent nature of child and young
people that cause child sexual abuse.
51
Sakshi (a Non-Governmental Organization), Child Sexual Abuse: Beyond Fear Secrecy and Shame,
New Delhi (1999).

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 The Child: Concept, Definition and Rights

The United Nations has defined child sexual abuse as contacts of

interactions between a child or an older or more knowledgeable child or adult
(a stranger, sibling, or persons in position of authority such as a parent or a
caretaker), when the child is being used as an object of gratification for the
older child or adult sexual needs. These contacts or interaction are carried out
against the child using force, trickery, bribes, threats or pressure.52 The World
Health Organization (WHO) estimates that one in every ten children is being
sexually abused world ide.

Child marriage is also a form of child sexual abuse. Practices like the
Devdasi (tradition of dedicating young girls to gods and goddesses) and genital
mutilation in some parts of the country are often rationalized on the ground of
culture and tradition. Pedophilia or child sexual abuse is the physical or mental
violation of a child with sexual intent usually by an older person who is in
some position of trust or power to the child. Sexual assault of children is a
vitally important and frightening subject. However, it is not as rare as it is
believed to be. Child sexual abuse by family members or by relatives, people in
the position of trust (incest) is much more traumatic than sexual abuse by
strangers. Also incest is less likely to be reported to the police.

„Child Sexual Abuse and Exploitation‟, covers the sexual maltreatment

of both children and young people. It is an abuse of power and violation of
Human Rights and, in many cases, a contemporary form of slavery. The
perpetrator can be anyone who exploits the child‟s vulnerability to gain sexual
gratification. Child sexual abuse and exploitation involves mental, physical and
emotional abuse of child through overt and covert sexual acts, gestures and
disposition when informed consents or resistance by the child victim to such
acts is not possible. It can include activities which do not involve direct

52
United Nations Child Education Fund, (UNICEF) 2001.

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 The Child: Concept, Definition and Rights

touching. Further sexual abuse and exploitation of children takes different

forms such as:

Child laborers and young domestic workers are frequently used for the
sexual gratification of the employers and other adults.

Children are used as attraction in sex tourism. Children are victims of

globally organized sex trade. In some countries, this helps in bringing the much
needed foreign exchange.

There are occurrences of sexual abuse and exploitation of children

within the families and homes; rape within the family is on rise. The Law
generally presumes that parent and guardians of the child arc innocent and it
takes a lot of professional commitment to establish an offence against parents
and guardian.

With the advent of HIV/AIDS, there is an increased demand for younger

child Prostitutes.

Children are abused within the context of cultural or traditional practices

such as child marriages, devdasi etc.

Children in institutions, Juvenile homes, and observation homes etc.

(which are supposed to take care of them) are more vulnerable to sexual abuse.

Children in situations of armed conflicts, displaced, migrants and

refugee children are particularly vulnerable to all forms of sexual exploitation.

A study on Child Sexual Abuse carried out by Save the Child Sweden53
and Tulir in 2006 looked at the prevalence and dynamics of child sexual abuse
among School going children in Chennai. The study was conducted with a

53
A Non-Governmental Organization.

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 The Child: Concept, Definition and Rights

view to add to the care indigenous body of knowledge on child sexual abuse
and with the aim of breaking the silence around the issue, dispelling certain
myths and providing research based information on child sexual abuse. The
team followed major ethical standards of confidentiality, freedom to
participate, informed consent and a multi-disciplinary team. The major findings
of this study include:

• Out of the total of 2211 respondents, 42 percent children faced at least

one form of sexual abuse or the other.

• Among the respondents, 48 percent of boys and 39 percent of the girls

faced sexual abuse.

• The prevalence of sexual abuse in upper and middle class was found be
proportionately higher than in lower or in lower middle class.

• Sexual exploitation was found to be prevalent in both joint and nuclear

families.

• Majority of the abusers were people known to the child and strangers
were a minority.

• Sexual harassment in public places and exhibitionism v as higher by

strangers.

• Sexual abuse of children was very often a pre-planned insidious abuse a

relationship by an abuser over the child.

2.7 COMPONENTS OF THE DEFINITION OF CHILD

EXPLOITATION

Form all the aforesaid definitions it emerges that there are three aspects
of the problem of child abuse namely, the victims (exploited) the exploiters,
and forms of exploitation.

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 The Child: Concept, Definition and Rights

2.7.1 Victims

According to Mendelsohn, who laid the foundation of the Science of

Victimology, the victim can he any person who suffers (physical or mental)
either as a result of ruthless design or accident. Hence, there are victims of
crime and victims of accident and calamities. For him the destructive or
harmful factors which produce victims cannot he limited to one element (the
criminals) but are instead numerous such as the environment or sometimes
even the personality of the victims and the level of technology. Social trends at
victimology must then investigate all the factors that cause victimization.

According to Mendelssohn, following can he the categories of victims:

Completely innocent victim, such as a child or a person who is

unconscious.

Victim with minor guilt (a woman who agrees for miscarriage, here
woman as well as the child in the womb both are victims).

Further Hembing described a more elaborate variety and typology of

victims than Mendelsohn‟s.

 Female victims, as the female is a symbol of weakness, the male

criminals have the benefit of greater physical strength in crimes against
the women especially in sexual assault.

 Young victims, children who are physically under developed and

psychologically immature. They are weak compared to adults. So they
are easy prey to kidnapping and sex offences.

 Mentally defective and mentally deranged victims.

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 The Child: Concept, Definition and Rights

 Depressed victims, who are psychological types of victims and suffer

from feelings of inadequacy, hopelessness, apathy and submission, they
can he their own victim.

 Unborn Child Victims of sex selection test. Basically amniocentesis

method is used to detect genetic abnormalities and deformities hut it is
misused to find out sex of the fetuses leading to selective abortion of the
female fetuses using modern technology. Large numbers of children are
killed by sex selected abortion because they are unwanted; wither
because of illegitimacy or because of some other reasons. Termination
of pregnancy when takes place within twelve weeks of pregnancy is
legal but still immoral to kill a living being. Abortion after sixteen
weeks is illegal and is termed as Foeticide.54 A child victim immediately
after birth includes secret disposal of child or concealment of birth.55
Child abandonment and infanticide is killing a child immediately after
birth especially if it is a female child.56

54
Section 312 IPC: whoever, voluntarily causes a woman with child to miscarry, shall if such
miscarriage be not caused in good faith for the purpose of saving the life a women be punished with
imprisonment upto three years and with tine and if the woman be quick with child shall be punished
with imprisonment of either description for a term which may extend to seven years and fine.
Section 313 IPC: whoever, causes miscarriage without the consent of the woman, whether the
woman is quick with child or not shall be punished with imprisonment upto ten years and tine.
Section 315 IPC: whoever, before the birth of any child does any act with the intention of thereby
preventing that child form being born alive or causing it to die after its birth, and does by such act
prevent that child from being born alive, or causes its birth, shall if such act be not cause be in good
faith will be punished with imprisonment upto ten years or with fine.
55
Section 317 IPC: whoever, being the father or mother of a child under the age of twelve years or
having the care of such child, exposes or leave the child in any place with the intention of wholly
abandoning such child shall be punished with imprisonment upto seven sears and with fine.
Section 31 8 IPC: whoever. by secretly burying or otherwise disposing of the dead body of a child
whether such child die before or after or during its birth, intentionally conceals the birth of such child
shall be punished with imprisonment upto two years or with fine or with both.
Section 32(3) Medical Termination of Pregnancy Act. 197 1: whoever terminates any pregnancy in a
place other than mentioned in section 4 shall be punishable with rigorous imprisonment which shall not
he less than two years hut may extend to seven years.
56
Section 299. Explanation (3) IPC. 1860: the causing of the death of a child in the mother‟s womb is
not homicide, hut it may amount to culpable homicide to cause the death of a living child if any part of
that child has being brought forth, though the child may not have breathed or been completely born.

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 The Child: Concept, Definition and Rights

Consent given by a person under twelve years of age57 for any harm to
his body or for anything on his part is not free consent. If the victim is under
the age of twelve years, and is said to be suffering voluntarily, the person
obtaining such consent will he held liable. The above mentioned categories of
child abuse are not covered under the definitions of child abuse as given under
various existing laws. Unfortunately, a large number of children are exposed to
the risk of losing their lives through the aforesaid acts.

2.7.2 Exploiters

As defined in the Black’s Law Dictionary,58 exploiter means people

taking unjust advantage of another for one‟s own advantage or benefit, So all
the people who exploit children by any means or for any reason are the
offenders of the particular crime against child. And offender means a person
indicted in the commission of a crime and includes a person guilty of
misdemeanors. Exploiters of children are generally the people on whose
shoulders the responsibility for the welfare of this weaker section of the society
lies, such as parents, relatives, guardians. institutional guardians, teachers,
employers etc. unknown, or not so known persons is another category actively
involved in exploiting number of children by way of kidnapping, rape,
abduction, trafficking etc. the motive behind abuse by these people varies from
person to person and from situation to situation.

2.7.3 Forms of Exploitation

The various forms of exploitation include all the acts and omissions by
which children are harassed and are subjected to physical and mental abuse and
cruelty such as:

57
Section 90 IPC: consent known to be given under fear and misconception: Consent is not such
consent if it is given by a person under fear of injury or under a misconception by a person who is a
child under twelve years of age.
58
Black’s Law Dictionary, 5th Edition.

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 The Child: Concept, Definition and Rights

• Including children purposely for prostitution, begging or any other

immoral activity;

• Beating a child, sexually abusing, battering, burning or killing a child,

before or after birth;

• Subjecting children to overwork in dangerous factories and other

organized or unorganized sectors;

• Failure to meet the child‟s basic needs such as food, shelter, clothing
health etc.;

• Failure to meet emotional needs.

In general, the exploitation of the child may occur by any or all those
activities by which child is deprived of his rights and is subjected to unsuitable
treatment by any person.



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