IPC Section 317 - Exposure and abandonment of child under twelve years, by parent or person having care of it

The Indian Penal Code, 1860 (hereinafter referred to as “the Code”) acts as the cornerstone for the criminal laws in India. Among all the provisions in the Code, Section 317 deals with the exposure and abandonment by a parent or whoever is responsible for the care of a child under twelve years of age. It was enacted to protect young children from the cruel acts, neglect, and abandonment of a person responsible for the care of such a child. This Section aims to protect children of tender years as they are unable to take care of themselves. They have the risk of being grievously hurt or dead.

Legal Provision of Section 317 IPC

Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

IPC Section 317: Explained In Simple Terms

Section 317 of the Indian Penal Code deals with child abandonment. It applies to parents or guardians who leave a child under 12 years old with the intent to abandon them. This means if a father, mother, or caretaker deliberately leaves the child somewhere with no intention of coming back for them, they can face legal action.

The punishment for this crime can be:

• Imprisonment for up to 7 years
• A fine
• Or both

Essentials Of Section 317 IPC

Section 317 of the Code covers a host of relevant issues that need to be understood to understand the Section properly. These include:

The Act of Exposure or Abandonment

• Section 317 of the Code penalises exposure or abandonment of a child under twelve years of age by their parents or any person having care of a child.
• “Exposure” includes leaving the child in conditions where his life or his well-being is exposed to risk. While “abandonment” means completely abandoning the child with no intention to provide future care at any time.
• The place of abandoning a child could be anywhere- public or private, indoors or outdoors- as far as it is proved that the intent is altogether to abandon the child.

Perpetrators

The persons guilty under this Section are:

• The biological parent of the child - either father or mother;
• Any other person having care of such a child, with no regard to what degree of relationship to the child he or she bears. A foster parent, a guardian, or someone who has assumed responsibility for their care, will fall under this head.

Role of Intent

• The key ingredient to this Section is the “intention” of the parent or caregiver. The act must be performed to completely abandon the child.
• Unless this intention is established, the act may fit under other forms of neglect or maltreatment but may not constitute abandonment under Section 317.

Penalty

• A person who exposed or abandoned the child under this Section shall be liable to the sentence of imprisonment of either description for a term which may extend up to seven years.
• Along with imprisonment, a fine may also be imposed according to the nature of offence.
• The discretion available in the sentence allows the Courts to consider the facts and the extent of the neglect in individual cases.

Explanation Clause

• The explanation in Section 317 is clarificatory that, if a child dies due to exposure or abandonment, this Section will not prohibit the trial of the offender for murder or culpable homicide as the case may be.
• This Section ensures that the nature of the circumstances is more severe in cases where the abandonment resulted in deaths, and thus a higher charge should be framed beyond Section 317 of the Code.

Section 317 criminalises the act of a parent or caretaker deliberately abandoning a child less than twelve years of age, with imprisonment, fine, or both.

Particulars of Section 317 IPC

• Chapter: Chapter XVI
• Punishment: Imprisonment of either description for a term which may extend to 7 years, or with fine, or with both
• Cognizance: Cognizable
• Bail: Bailable
• Triable by: Magistrate First Class; Court of Sessions in Madhya Pradesh
• Compoundability: Not compoundable
• Section in Bhartiya Nyaya Sanhita, 2023: Section 93

Consequences Of Non-Compliance to Section 317 IPC?

Any person convicted of an offence under Section 317 shall be liable to imprisonment of either description which may extend to 7 years, or fine, or both.

Significance of Section 317 IPC

Section 317 of the Code is a tool for the protection of the rights and well-being of children. It criminalises an act that results in the abandonment of a child which is tragic, merciless ruining of a child physically, emotionally, and socially. While punishing the act, the law tries to stop child abandonment and ensure that children receive the care and support that allows them to grow and flourish in society.

Cases Related to Section 317 IPC

Empress Of India vs. Banni (1879)

This case deals with the application of Sections 304 and 317 of the Code in a case of death due to exposure. The judgement focuses on the point that no one can be punished twice for a crime. In this case, the accused, Musammat Banni, was initially charged under Section 317 Code.

The child however died due to the exposure. In consequence of this, the Court held that the offence under Section 317 became merged with the more serious charge of culpable homicide under Section 304 of the Code. This is so because the act of unlawful exposure had resulted in the death of the child. The Court explained the principle with this analogy. If a man assaults another and the latter eventually dies from the injuries suffered during the assault, the charge of assault turns into a charge of manslaughter.

While it was appropriate to frame charges under Section 317 in the initial stages, the death of the child meant that the case was to be ultimately dealt with under Section 304 of the Code. The conviction and sentence imposed under Section 317 were quashed to avoid double punishment for the same act.

Jaganmoy Banerjee And Ors. vs. State Of West Bengal And Anr. (2006)

This case includes petitioners- a medical officer and members of a non-governmental organisation. These petitioners were accused of several offences that had been committed in the care of a child. The factual background upon which the allegations arise is that the child was born in the emergency chamber of the medical officer and later cared for in the short stay home of the NGO. The judgement eventually quashed the proceedings against the petitioners with the conclusion that none of the alleged offences were applicable or provable.

In this case, the biological family of the child abandoned the child shortly after birth. They left the child under the impression that they may take the child in case their family accepted them as their offspring. However, the petitioners in this case were not the child's parents. The Court declared that there was no evidence to show that the petitioners had abandoned the child. Some efforts at finding alternative care for the child were made by the petitioners. They contacted other organisations and even considered putting the abandoned child for adoption.

Champaben D/O Chelabhai Gamjibhai vs. State (2014)

In this case, the defendants Champaben and Bharatkumar were accused of throwing the newborn baby down in the well with the intent to conceal the birth of an illegitimate child. This led to the killing of the infant and an additional charge of murder to the original charge under Section 317 of the Code. The prosecution argued that the accused persons, motivated by their desire to conceal their illicit relationship and the subsequent birth of their child, abandoned the infant, which ultimately led to its death. That act of abandonment was the basis for the charge under Section 317 of the Code. The accused were held guilty by the Court for murder under Section 302 read with Section 114 of the Code. They were also found guilty of abandoning an infant to wholly abandon him under Section 317 read with Section 114 of the Code.

Vandana Dubey vs. State of Chhattisgarh (2020)

This case is related to Section 317 of the Code. The accused in this case was a revenue inspector who had abandoned a child whom he had fathered with the prosecutrix. Prosecutrix, however, claimed that the accused had taken away their child and left him. Witnesses testified that they saw the prosecutrix holding the child in a bag while riding on a motorcycle driven by the accused.

The Court was not satisfied with the claim of the prosecutrix and suspected that she herself might have planned to desert the child to conceal the birth of the child. Due to uncertainty whether the child was abandoned by her or the accused, and in the absence of any evidence that the accused was the father of the child, the requirement of an offence under Section 317 of the Code was not satisfied.

Vijayakumar D. Petitioner vs. Station House Officer Aryancode Police Station And Others (2020)

The Kerala High Court in this case scrutinised whether Section 317 of the Code was applicable in the facts of the case. Sahee, the mother, left her two small children, who were aged 15 and 11 years respectively, in the care of the father for a considerable amount of time, leaving to seek employment. The Court gave a bail order to Sahee and released her from custody, casting doubts about the validity of charges levelled against her.

This is how the Court came to that conclusion:

• In this case, the Court was not satisfied that Section 317 of the Code applied to this case. It relates to the exposure and abandonment of a child under twelve years of age by a parent or guardian in a manner likely to cause his death. The Court noted that Sahee had left her children with their father, who is the natural guardian of the minors. This would mean that the Court felt the children were not abandoned in a manner that endangered their lives, which is the requirement of Section 317 of the Code.
• The Court admitted that there was still an ongoing investigation. Although they had some reservations in respect of the charges brought, they said the investigation of the matter had to be pursued. This thus shows that although the Court questioned whether Section 317 of the Code applied in that particular case, it did not rule out the existence of other offences or issues that needed further investigation.
• The Court favoured the liberty of the subject during the investigation. Sahee was furnished with bail on her own recognisance without the necessity of sureties. The Court ordered that she should not be detained in jail while the investigation ran its course. It is an example which highlights the emphasis of the Court in maintaining the liberty of the subject during its course of legal procedure.

Challenges in Implementation

Although Section 317 of the Code clearly stipulates the framework under which the abandonment of children should be punished, several challenges persist:

• Proving Intent: One of the toughest challenges of this Section is how to prove that the parent or caregiver had the intent to “wholly abandon” the child. Often, many cases of child abandonment are complicated by mental illness, poverty, or social stigma. These issues make it difficult to prove and establish the intent.
• Social Stigma: Mothers of newborns may abandon their children in a number of situations associated with social stigma, including pregnancy out of wedlock, poverty, or fear of what others would say about their situation. Such cases call for sensitivity while handling the matter. In these scenarios, it is better to approach the matter from a rehabilitative point of view than a punitive one.
• Underreporting of cases: In many of India, cases of abandonment of children go unreported. Not all such cases are reported or brought to notice because there is either a lack of awareness, access to legal resources, or societal apathy. Strengthening reporting and creating awareness are more essential for better enforcement of Section 317 of the Code.

Conclusion

The provision of Section 317 of the Indian Penal Code, 1860 plays a crucial role in safeguarding children from the dangers of abandonment. Through criminalising exposure and abandonment, the law infers the liability of parents and guardians toward their children. However, it is only through multifaceted societal support structures, including mental health services, child welfare systems, and public advocacy programs, that such tragic scenarios are curbed and the very causes of abandonment are combated.