Section 317 Of IPC: Exposure And Abandonment Of Infants

Key points

• This section protects the rights of children below 12 years.
• The child must be abandoned by the mother, father or any legal guardian.
• Intention of abandoning must be present.

Introduction

Our Legislatures and the Supreme Court have always made laws to protect children from any kind of mis-happenings. Children constitute a large part of our population and are often the neglected ones. Children have the right to be protected from all types of exploitative and vulnerable situations. Children all over the world have always been considered as the most vulnerable & innocent victims of crimes committed in the society. Amongst the most significant legislations enacted to protect children’s rights and ensure their safety are the POCSO Act and the Juvenile Justice Act, whereas the Indian Penal Code, 1860 also recognizes the various offences committed against children and penalizes the offenders under various sections. Therefore, some specific rules have been made to safeguard their rights.

Child abandonment can be considered as an illegal practice undertaken by the parents, with the intention of never resuming or reasserting their guardianship.

Section 317 of Indian Penal Code

Section 317 of the Indian Penal Code provides for the “Exposure and abandonment of child under the age of twelve years, by parent or person taking care of it.” It states that whoever being the father or mother of a child under the age of twelve years, or having the care of such child; such as guardian, if they expose or leave such child in any place with the intention of wholly abandoning the child, they shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both.

Essentials to be convicted under Section 317 of IPC

For any accused to get convicted under the Section of 317, the following four essentials must be present.

1. The person coming within its purview must be the father or mother or the guardian; who takes care of the child: Section 317 places equal liability on both the parents of the child or the legal guardian. This has been observed in Emperor v. Blanche Constant Cripps & Anr. In this case, the court held that, the intervening period can be several months and during that whole time the person who is in actual possession of that child would have to take care of that child within the meaning and contemplation of the Section 317 IPC. This would include the daycare centers, creches, orphanages, etc. under it.
2. Such child has to be under the age of twelve years: This section makes provisions for protection of children under twelve years of age, as they are considered incapable to safeguarding themselves.
3. The child must have been exposed or left in any place by his or her legal guardian with the intention of wholly abandoning him/her: This section does not make a person liable if the parent or guardian leaves the child temporarily. It must have been done with an intention to constitute it as an offence.
4. Death of child as a result of exposure: If a child dies as a consequence of exposure or abandonment, then the parent in whose care the child was placed would be held liable under the offence of culpable homicide or that amounting to murder.

Scope of Section 317

Section 317, IPC is applicable when a child below 12 years of age is exposed or abandoned, both legitimately and illegitimately. As the children below the age of 12 years, are not in a position to protect themselves, this section is meant to protect their interests. The primary responsibility is put on the mother, father or guardian, who has the custody of the child, to bring up the child and to provide adequate care for children of tender age. Both father and mother have equal duty of care to look after the child. And apart from parents, the persons under whose care the child is placed, all are equally liable under Section 317.

This section does not discriminate between children born in wedlock or outside wedlock. All the children are given equal importance and status. The day care centers, crèches, orphanages, schools etc., are all covered by this provision. This section does not intend to prevent the trial of the offender for murder or culpable homicide, as per the case may be, if the child die in consequence of the exposure.

Explanation of Section 317 of IPC

In short, the gist of Section 317 is providing punishment for exposing or leaving the child with an intention to abandon him or her.

The words ‘expose and leave’ mean leaving the child in dangerous circumstances or situation, neglecting the child and not providing the child adequate protection from natural elements like cold, heat and other hazards.

‘Expose’ here means to put the child outside physically, such that the putting outside involves some physical risk to the person who was put out. This section further stipulates that ‘exposing or leaving of the child’ should also have the ‘intention to abandon’.

The word ‘leave’ does not only mean relinquishment, but it means deserting the child in a place, with the intention of leaving him/her to its fate.

The expression ‘or having the care of such child’ does not comprise merely any menial servant or care taker such as a nurse or an ayah of the child. It means any person who has undertaken to provide support, protection and maintenance of the child, either by adopting it or by way of contract with the parent, or by any other means.

If a child under 12 years of age, is exposed and abandoned and this results in the death of the child, then the father, mother or person was left to take care of the child, will be liable for murder or culpable homicide as provided under Section 317. However, the death of the child must be a consequence of the exposure. This section would be applicable if there is unlawful exposure of the child which causes death and it must be done with the knowledge that it is likely to cause death. Section 317 applies where a child is exposed and no death supervenes. However, death follows, the accused has to be convicted under Section 304. The offence is complete and states that, it is notwithstanding that no actual danger or risk of danger arises to the child’s life.

Nature of offence

The nature of offence under Section 317 is

• cognizable
• bailable
• non-compoundable
• triable by Magistrate of the first class

Need for amendments

The Fifth Law Commission had suggested a few proposals for amending the existing laws related to the protection of children provided under IPC (Amendment) Bill 1978 in the 42nd Law report. They are:

1. Age of the children mentioned in the section from exposure & abandonment should be reduced from 12 years and be made 5 years.
2. The reference mentioned as the risk of life or serious injury to the health of the child should be indicated more precisely with specific guidelines.
3. The unnecessary explanation given in the section should be removed.

Relevant Judgements

1. Vijayakumar D. Petitioner/S v. Station House Officer Aryancode Police Station And Others /S. 2020-

In this case of the Kerala High Court, the detenue, Sahee had left her two young children with her husband, the petitioner, before going to State of Karnataka, to get some employment. The Court Prima Facie held that, the contentions put up before the forum and the evidences produced, are not enough to prove the guilty of the accused in the said Sections. The Court also cleared that Section 317 of IPC will not be applicable here, as the subject had left the children in the custody of their natural guardian i.e., their father.

2. Ragini vs The State Of M.P. on 22 June, 201

In this case a charge-sheet was filed against the appellant for being prosecuted under Sections 302 and 317 IPC, after the post-mortem report showed that, the new born baby had died asphyxia due to drowning. After the trial was over, the learned trial Judge, analyzed and appreciated the evidence on record, and held the appellant guilty for having thrown the child to whom she had given birth, alive in the well. Thus, she was accused of committing the homicidal death of the child. Upon these findings, the learned trial Judge convicted the appellant under Sections 302 and 317 India Penal Code.

3. Bodh Prakash vs The State (Govt. Of NCT Of Delhi) on 10 May, 2010

In the present case, as per the evidence produced by the petitioner before the trial court, it has been nowhere demonstrated that the respondent no.1 being the mother of the child, left the minor child at some unknown place. The baby child was left in the company of her father i.e., the petitioner. It was also submitted that the minor child did not solely dependent on the breast feeding of her mother, rather she is in a position to take light food also. It must also mention on the record that the petitioner and his mother were taking care of the child. Therefore, it can also not be said that the minor child was abandoned by her mother, respondent no.1. The court held that, it is not only the duty of the mother to take care of her child, but the father is also equally duty bound to take care of his children in case the mother is not available or not ready to take care of the child. Therefore, in this case the mother cannot be prosecuted under Section 317 of IPC as she did not abandon the child, rather left the minor with her father.

Conclusion

The situation of abandonment of children or infanticide can be more specifically observed in respect of female children only. All of us at large have a moral responsibility for the offences committed against the children due to the social attitude and the male favoring mindset. Unless this social attitude changes and social reforms are brought in good measure, no change can be expected. The IPC along with the Criminal Law (Amendment) Act, 2018, has recognized aggravated forms of various offences committed against children and has penalized them accordingly. Though plausible statutes have been enacted and legislative steps are taken, the minors in our society still remain vulnerable and are extravagantly exploited in the commission of crimes. Hence, more stringent enforcement mechanisms should be employed to solve this issue and to ensure the protection of children and guarantee their safety.