Definition
The defence of legal minority — a child below 7 years is absolutely incapable of committing an offence; a child aged 7-12 has a rebuttable presumption of incapacity that depends on whether the child had sufficient maturity to judge the nature and consequences of the act.
Sections 25-26 BNS 2023 (formerly Sections 82-83 IPC) establish the 'infancy' defence: (a) Section 25 BNS (absolute defence) — a child under 7 years of age cannot be guilty of any offence, regardless of the act committed. (b) Section 26 BNS (rebuttable presumption) — a child aged 7-12 who has not attained sufficient maturity of understanding to judge the nature and consequences of their conduct is not guilty of an offence. This is the doli incapax (incapable of evil) presumption — rebuttable by the prosecution showing that the child had sufficient maturity. Juvenile offenders aged 7 and above are generally tried under the Juvenile Justice (Care and Protection of Children) Act, 2015.
Statutory Definition
Section 25, Bharatiya Nyaya Sanhita (BNS), 2023 (formerly Section 82 IPC): 'Nothing is an offence which is done by a child under seven years of age.' Section 26 BNS (formerly Section 83 IPC): 'Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.'
Etymology & Origin
From Latin 'infantia' (speechlessness, early childhood) from 'infans' (unable to speak, infant) from 'in' (not) + 'fari' (to speak). In law, 'infancy' originally covered the period of childhood when a person was too immature to understand legal obligations — the 'incapable of speaking for themselves' stage.
Full Legal Analysis
Infancy: The Law’s Protection of Children from Criminal Responsibility
Criminal liability requires a guilty mind — and the law recognises that very young children lack the cognitive development to understand right from wrong in a legally meaningful sense. The infancy defence is not merely procedural; it reflects a fundamental moral principle: the criminal law is designed for adults who can understand what they do and why it is wrong. Small children cannot be held criminally responsible because they do not yet have that capacity.
The Doli Incapax Presumption
The doctrine 'doli incapax' (Latin: incapable of evil) presumes that a child below a certain age lacks the capacity to form criminal intent. In India: (a) Under 7: absolutely incapable — no prosecution possible. (b) 7-12: presumed incapable, but the presumption can be rebutted by showing that the child had sufficient maturity. What constitutes 'sufficient maturity'? Courts examine: hiding evidence, trying to escape, showing awareness of wrongdoing after the act, and the nature of the act itself. A 10-year-old who commits a sophisticated fraud may be found to have sufficient maturity; one who commits an impulsive act of violence may not.
Juvenile Justice Act, 2015
Children above 7 years who commit offences are generally handled under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), not the BNS/CrPC. Key provisions: (a) Children in conflict with law (CICL) aged below 18 are tried by the Juvenile Justice Board, not regular courts. (b) Children aged 16-18 accused of heinous offences may be tried as adults by the Children's Court if the JJ Board, after assessment, finds that the child has adult-level maturity. (c) The focus is on rehabilitation, not punishment.
“The law does not punish children for being children. Criminal liability requires a mind capable of choosing wrong over right. The infancy defence recognises that this capacity develops with age — and that holding children to adult standards of criminal accountability would be both unjust and counterproductive.”
This Term in Indian Statutes
Bharatiya Nyaya Sanhita, 2023, 2023
"Nothing is an offence which is done by a child under seven years of age."
Absolute infancy defence — child under 7 absolutely incapable of committing an offence
