This article is written by Yamini Jain, a student of III year BA LLB at ILS Law College, Pune, and it provides a brief overview of the ‘Offences relating to children’ under the Indian Penal Code, 1860 along with relevant case laws.

Introduction

The offences relating to children under the Indian Penal Code, 1860 include those enlisted under Sections 312- 318, i.e. causing of miscarriage, injuries to unborn children, abandonment & exposure of infants, concealment of births & secret disposal of their dead bodies.

Causing miscarriage

Sections 312, 313 & 314 deal with the offence of causing miscarriage and its aggravated forms, distinguishing the liability into two categories with reference to the woman’s consent and of her being ‘with child’ or ‘quick with child’.

Essential Ingredients

Voluntarily Causing Miscarriage

The provision under the aforesaid Sections is applicable to such cases where miscarriage is voluntarily caused. Section 39 of the IPC defines ‘voluntarily’ as to intentionally cause/ employs such means as known to be likely to cause an effect, thus, intention/mens rea to cause miscarriage is an essential element of this offence.

Woman with Child and Woman Quick with Child

The factum of pregnancy is a prerequisite to the offence. The sections provide distinct liabilities for offences against a woman who is known to be ‘with child’ or ‘quick with child’. In the case of Queen-Empress v. Ademma, it was held that “the moment a woman conceives and the gestation period/ pregnancy begins, the woman is said to be ‘with child’; while in another case of Re: Malayara Seethu, a woman ‘quick with child’ was referred to as a more advanced stage of pregnancy wherein ‘quickening’ is perceived to be the mother’s stimulus to the movement of her foetus. However, an offence against a woman quick with child’ is an aggravated form of that against a woman ‘with child’, and hence, the punishment prescribed for the latter is imprisonment for upto 3 years/ fine/ both, and for the former is upto 7 years with fine.

Miscarriage

Ther term ‘miscarriage’ has not been defined under the IPC and its usage is synonymous to ‘abortion’. In the legal context, miscarriage is the premature expulsion of the product of conception at any time before the full term is reached; while medically, three distinct terms of abortion, miscarriage, and premature labour are used to indicate the expulsion of the foetus at different stages of gestation. ‘Miscarriage’ is particularly used if such expulsion occurs from the fourth to the seventh month, before it’s viable.

Consent of Woman

Sections 312 & 313 deal with the aspect of the woman’s consent against whom such offence is committed. Section 312 envisages the situation where the woman consents to the causing of miscarriage of her foetus and is held equally liable to the committing of such offence with imprisonment of upto 7 years and fine. Section 313, on the other hand, manifests a much graver form of such offence, i.e committed without that woman’s consent and hence is liable to imprisonment for life, or upto 10 years & fine.

Causing of Miscarriage Resulting in Death of Woman

According to Section 314 of the IPC, an act done with the intention of causing miscarriage, when results in the death of such woman, it is an offence liable with imprisonment of upto 10 years and fine. Provided, if the woman was one to be ‘quick with child’, or if such offence was committed without the woman’s consent, then it is considered a more serious offence and hence may be punishable with imprisonment for life. It has to be stated here that intention to cause/ knowledge of the act likely to cause death is not an essential element for it to constitute an offence under this Section, but a direct nexus between the act done and the death of the woman has to be established before the Court. 

Exceptions

Exceptions to the offence of causing miscarriage/ abortion are twofold:

• Good faith- Section 312 of the IPC exempts such persons who cause miscarriage in good faith (as defined under Section 52) to save the woman’s life.
• Medical Termination of Pregnancy Act, 1971- It was enacted to legalise the termination of certain pregnancies by registered medical practitioners in order to provide for safe abortions. The Act, prevailing over the aforementioned provisions of IPC, allows a woman to legally abort her pregnancy if its continuance would be injurious to her life (physically/mentally); if the foetus is detected with abnormalities; or if such pregnancy is a result of rape or failure of contraceptives. 

Injury to an Unborn Child

Sections 315 & 316 envisage the provisions relating to injury caused to an unborn child. They cover the situations where an act is done with the intention of preventing such child to be born alive; or causing the death of a child who’s quick unborn by an act amounting to culpable homicide.

Essential Ingredients of Section 316

Act to Be Before the Birth of the Child

An essential element under these two provisions is that the culpable act/actus reus should be done before the child is born resulting into the prevention of such child being born alive or cause it to die after its birth. It merely covers injury caused to an unborn child, since whence such act is committed after the birth of the child, it’d be dealt with other provisions of the IPC.

Intention

Section 315 declares that the ‘intention to prevent a child from being born alive/to cause it to die after its birth’ is essential to the offence committed under it, except when done in good faith for the purpose of saving the mother’s life. An offender under this Section shall be liable with imprisonment which may extend to 10 years/fine/both.

Causing Death of Quick Unborn Child by Act Amounting to Culpable Homicide

Section 316 is a graver variant of Section 315, wherein the act is done with the intention/ mens rea to commit an offence amounting to culpable homicide (presumably of the mother), which act though does not cause the death of the mother, but causes the death of a quick unborn child, and is punishable with imprisonment of upto 10 years and fine. Further, if the actus reus results in the death of the mother, then it shall amount to culpable homicide[1]. 

Abandonment and Exposure of an Infant

Section 317 of the IPC deals with the offence of exposing a child under twelve years of age with an intention of wholly abandoning it, done by a parent or any person having care of it. An offender under this Section shall be liable with imprisonment of upto 7 years/fine/both. 

Essential Ingredients of Section 317

Child to Be Under twelve Years

This Section makes provision for the protection of children under twelve years of age as they’re considered inefficient in safeguarding themselves, and applies equally to all children irrespective of their legitimacy. The primary responsibility is cast on the parents & persons holding custody of such a child for the purpose of its care & protection.

Responsibility is on Both Father and Mother or Person Having Care of Such Child

Contrary to the provisions of the Guardians & Wards Act 1890, wherein the father is declared as the natural guardian of the child, the IPC as per Section 317 equally obliges both the father & mother alike to provide care & protection to the child, irrespective of the child being born in/outside wedlock.

Section 317 also places a similar duty & liability, as imposed upon the parents of the child, on the person made responsible for the care & protection of the child, and hence, daycare centres, creches, orphanages, etc. are all included under it[2].

Exposing or Leaving with Intention to Abandon

The essence of this provision of the IPC is ‘exposing/leaving’ the child along with an ‘intention to abandon’ it. The term ‘leave’ must be read ejusdem generis with ‘expose’, as together they denote the explicit meaning of this Section, declaring that leaving of the child in danger, neglecting it, and inadequately protecting it from naturally hazardous elements.

Further, it manifests that such exposure/leaving of the child must be accompanied with the intention of abandonment of the child. It, therefore, indicates not merely leaving the child temporarily, it should have been done with the required intention to constitute an offence under this Section.

Death of Child As a Consequence of the Exposure

The explanation to Section 317 stipulates that whence the death of a child under 12 years of age is caused because of the aforementioned exposure/leaving, then the parent or such person in whose care the child was placed, shall be held liable for the offence of culpable homicide or that amounting to murder. However, it is essential to note that the death so caused must be a proximate consequence of such unlawful exposure/abandonment and should’ve been done with the knowledge that it’s likely to cause such death. 

Concealment of Birth of a Child

Section 318 of the IPC deals with a situation where a person intentionally endeavours to conceal a child’s birth by secretly burying or disposing of the dead body of the child, irrespective of the death occurring before/after/during its birth. A person convicted under this Section shall be liable with imprisonment which may extend to 2 years/fine/both.

Essential Ingredients of Section 318

Secret Disposal of Bodies of Children

In accordance with the general policy of publicising births & deaths, the Registration of Births & Deaths Act, 1969 imposes a compulsion upon every person to register births and deaths with the local authorities, since the certificates issued for it are rather essential for various civil transactions. Detection & prevention of infanticide is one of the prominent principles operating behind this provision. Moreover, Section 318 while recognising the secret burial of the child’s body circumscribes all other methods of it being secretly disposed of.

Dead Body of Child

The term ‘body’ in this Section indicates a precondition that the secret burial/disposal should be of the dead body of the child, i.e. the child should not be a mere embryo/foetus but should’ve been developed and matured. Further, in the case of Radha v. State of Rajasthan, it was held that if the child were alive at the time of such secret burial/ disposal, then no offence would be made out under this Section, but would attract other provisions of the IPC.

Conceals or Endeavours to Conceal Birth

An essential element stipulated by this Section is that of the intention of the accused to conceal/attempt to conceal the birth of the child. The offence becomes complete when the birth of the child, dead/living, is concealed by any means.

Conclusion

It is understood that the offences enumerated in the aforementioned sections have been accentuated by the social pressures and value-based judgments on unwed mothers. Though the male members are equally responsible, the social stigma & ostracisation is placed on the woman only, which in turn leads a woman to abort her child. Further, the situation of abandonment of children/infanticide is mostly seen in respect of female children only. Unless this social attitude changes and social reforms are brought in good measure, all of us at large hold a moral responsibility for these offences committed against children. 

References

• The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860.
• 3 Hari Singh Gour, PENAL LAW OF INDIA 3175 (11th ed. 1998).
• K I Vibhute, P.S.A PILLAI’S CRIMINAL LAW 731- 739 (13th ed. 2019).
• Queen Empress v. Ademma, (1886) ILR 9 Mad 369. 
• Re Malayara Seethu, AIR 1955 Kant 27.
• Jaising P. Modi, MEDICAL JURISPRUDENCE & TOXICOLOGY (10th ed.).
• Medical Termination of Pregnancy Act, 1971, No. 34, Acts of Parliament, 1971.
• Motia v. State of Rajasthan, AIR 1951 Raj 123.
• Emperor v. Blanche Constant Cripps, AIR 1916 Bom 135.
• Radha v. State of Rajasthan, (1973) Raj LW 684.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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