Child rights are a major component to decide whether a country is a safe harbour for its citizens, yet there are instances when the parent or the caretaker of the child is the one who abandons a child who lacks agency and necessary means to fend for itself. While the wordings of the current section are sufficient to address many instances, they fall short to cover under its ambit many instances that arise in the practical applicability of the section, write Chakshu Purohit & Sonal Gupta

The dichotomy between the belief systems that the human moral compass should aim towards self-gain or the preservation of one another takes a significant hit each time an adult, entrusted with the care and custody of a child, abandons the child at a tender age to fend for itself without considering the effects and consequences of such actions. However, it is lesser known that such acts are punishable under Section 317 of the Indian Penal Code, 1860.

Dissecting Section 317 IPC

Section 317 IPC renders the act of a person who is a parent or has the care of a child under the age of 12 years punishable when, by way of such act, the said parent or the one who has the care of the child “exposes” or “leaves” the child “at any place” “with the intention of wholly abandoning such child.

However, the section clearly provides that if such act results in murder or culpable homicide, the present section is not a bar to the trial against the said serious offenses. This implies that if the child suffers injuries, the accused shall be tried under Section 317; however, if such abandonment by the accused has resulted in the death of the child, the accused shall be liable for murder or culpable homicide as the case may be.

The object of the section is to bring about the deterrence of abandonment or desertion by a parent or the one in care of a child of tender years in such a manner that the child, not being able to take care of itself, may run the risk of dying or being injured.

The Defence of ‘To Any Place’ Vis-à-vis ‘To Any Person’

Interestingly, mere abandonment is not sufficient to bring home the offense under Section 317; the child must also be exposed to some danger or injury. Hence, in Queen-Empress vs Mirchia, a case before the High Court of Allahabad, wherein the mother of an illegitimate child abandoned the child to a blind woman, promising to return which she never did, was not held liable under Section 317 IPC, as the act of the mother did not “expose” and “abandon” the child “to any place,” as the child was nevertheless left to the care of the blind woman.

Justice Blair remarked: “It seems to me manifest that if the drafters of the Act had intended to include in the section a case like the present, they would have used, after the expression ‘in any place,’ the words ‘or with any person,’ or some other words to that effect.”

This implies that a parent or one taking care of the child has the utmost liberty to expose and abandon the child to the risk of injury/danger if such abandonment has been constructively planned in such a way that the child is with someone who, even though might not be able to take any care of the child, constitutes sufficient human contact to make the act not fall under the definition of Section 317.

Another situation can be envisioned in this scenario when a parent, with an intention to expose and leave its child below 12 years of age, asks someone else to conduct the final act of exposing and abandoning the child to any place; in this situation, one might take the defence that such another person only held the child for a mere time gap of 2 minutes and was never “having the care of such a child” and was holding the child solely upon the instruction and objective to leave the child at the said place by the parent. It is interesting to ponder this given scenario.

To settle the issue, the High Court of Bombay in the case of Emperor vs Blanche Constant Cripps Anr. rightly held as follows: “We cannot help feeling, however, that in cases of this kind, any person receiving an infant from its mother on the distinct understanding, as in this case, that the mother never desired or wished to have the child back again, must in law be regarded as a person having the care of that child until he or she had transferred it to the care and custody of some other person or institution.”

Yet another instance can be thought of when it is difficult to determine whether the exposure caused was sufficient or bore any contributory nexus to the death of the child. This instance was dealt with by the High Court of Madras in the case of King-Emperor vs Antakke. In this regard, the High Court held that the consequence of abandonment/leaving is not a sine qua non to attract the provisions of Section 317. The Court held: “The manner of the exposure or leaving and the consequence likely to ensue from it are not essential ingredients of the offence under Indian law, though they may often be properly taken into consideration in estimating its gravity and in apportioning the sentence.”

What does English Law say?

The parallel legislation in English jurisprudence is Section 27 of the Offences against the Person Act 1861, which reads as follows:

Whosoever shall unlawfully abandon or expose any child, being under the age of two years, whereby the life of such child shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanour and being convicted thereof shall be liable to be kept in penal servitude.

Now, there are mainly three points of distinction that can be drawn between Indian and English legislation regarding the said offense. Firstly, the obvious, that the Indian law is applicable regarding offences committed against children up to the age of 12 years, whereas the ambit of age is merely 2 years in its English counterpart. However, the second and third points of distinction need to be studied with depth to understand Indian Law with its fullest clarity and to determine whether any changes are required in our legislation. As per English Law, the consequences of abandonment and exposure are sine qua non to attract the said crime, whereas in its Indian counterpart, and as rightly mentioned in King-Emperor vs Antakke, the consequences of abandonment and exposure are not essential ingredients of the said offence. Another notable point of distinction is that the words “at any place” are missing in English legislation, which automatically widens the ambit of the offence and shall incorporate the term “to any person,” as was rightfully mentioned in Queen-Empress vs Mirchia.

In this regard, the High Court of Allahabad in Queen-Empress vs Mirchia, while distinguishing both legislations, fairly noted: It differs materially in language from the section which is in force in England, and which became law about the same time that the Indian Penal Code came into force. Their objects were apparently similar, though not identical. The words of the English Act, Section 27, are… Those words differ materially from the words of the Indian Penal Code section. The provisions of the English Act are limited to children under two years of age, while in India, they are extended to children under twelve years of age. The English Act does not define the mode of such abandonment or exposure, and no doubt the word ‘expose’ read with the word ‘abandon’ would probably be held to be used in a wider and less literal sense than the words of the Indian Penal Code.

What changes must be introduced to Section 317?

Imagine a situation when a fully conscious parent with an intention to expose and abandon the child leaves a severely ailing child in the care and custody of such another person who is three years old or a lunatic, knowing fully that such another person will not be able to provide for such ailing child in any manner whatsoever be covered under the ambit of Section 317? The answer is NO. This implies that the section should clearly address this situation by not only adding the words “to any person” along with “to any place” but also shall add a few more words which shall clarify the desired position, and the most common defense taken by the accused that the child was not abandoned and exposed at any place but was left with a person can be ruled out. Additionally, the ambit of age can be safely reduced to an age wherein the child lacks any agency of itself. For example, the age can be reduced to 5 years as suggested by the Law Commission of India in its 42nd report.

Way forward

Child rights are a major component to decide whether a country is a safe harbour for its citizens, yet there are instances when the parent or the caretaker of the child is the one who abandons a child who lacks agency and necessary means to fend for itself. While the wordings of the current section are sufficient to address many instances, they fall short to cover under its ambit many instances that arise in the practical applicability of the section. The changes suggested are highly material to the successful practical implication of the section and hope is posed on the legislature to understand the gravity of the situation and make necessary amends.

(The authors are advocates at the Supreme Court)