History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v5.c71.s1.280

v5.c71.s1.280

Some smṛtis like Bṛhad-yama III. 1–2 and Śaṅkha state that a boy over five years of age and less than eleven years old, if guilty of some pātakas such as drinking *surā*, has not to undergo penance personally, but his brother, father or other relative or friend has to undergo it for him and that if a child is less than five then whatever act it may do it is not deemed a crime, nor is it a sin and it is not liable to any legal penalty nor to any ¹⁸⁷ prāyaścitta. The Mit. (on Yāj. III. 243) comments that these verses are not meant to prescribe a total absence of prāyaścitta in the case of children of five or less but are meant to convey that they are not liable for the full prāyaścitta prescribed for a sin. Its argument is that the texts lay down generally without any reference to the stage of life that a brāhmaṇa should not be killed or that a person belonging to the three higher castes should not drink surā.¹⁸⁸ Hence any one of whatever age who is guilty of having done such prohibited acts is liable and the words of Gaut. II 1 and of Kumāra are to be interpreted as not excusing altogether the drinking of surā by a child but as referring to minor lapses. Bṛhaspati expressly states that the dictum about a child being allowed to eat what it likes is confined to such matters as will not fall under grave sins.