This article is written by Yamini Jain, a student of III year BA LLB at ILS Law College, Pune, and it encompasses the provisions under the Indian Penal Code, 1860 that penalize the offences committed against children.

Introduction

Children all over the world are considered among 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 recognises the various offences committed against children and penalizes their commission under various heads. These offences may include homicide, foeticides, kidnapping, sexual acts, etc. and are discussed herein.

Murder (Section 302)

Murder, as defined under Section 300, is a species of the offence of culpable homicide. The acts excepted under this section are found to be culpable homicide not amounting to murder. Any person who commits an offence of Murder is punishable under Section 302 with death, or imprisonment for life & fine; provided that death penalty is pronounced only in the rarest of rare cases whereby the collective conscience of the community expects the holders of the judicial power centre to inflict such punishment irrespective of their personal opinion, for example, when the victim is an innocent child.

Abetment of Suicide (Section 305)

Abetment by other persons for the commitment of suicide by children: Section 305 of the IPC provides that a person who abets suicide, committed by a person under the age of eighteen years shall be punished with death/life imprisonment, or imprisonment of upto 10 years and fine. This provision is based on a reasonable public policy principle to prevent other persons’ involvement, instigation, and aiding in the termination of a child’s life.

Kidnapping & Abduction

Kidnapping in any form curtails the liberty of an individual, thereby impinging the right to life guaranteed under Article 21 of the Constitution of India. The IPC, under Section 359, recognises two kinds of ‘kidnapping’:

• Kidnapping from India; and
• Kidnapping from lawful guardianship.

An offender of kidnapping shall be punished under Section 363 of the IPC with imprisonment of upto 7 years and fine.

• Kidnapping for exporting (Section 360)

Section 360 provides that whoever conveys any person ‘beyond the limits of India’ without his/her consent or of the legal guardian, commits the offence of kidnapping that person from India. It essentially indicates that the offence is complete the moment a person is taken outside the geographical territory of India, but until so happens it may amount to an attempt to commit this offence banking on the principle of locus poenitentiae.

• Kidnapping from lawful guardianship (Section 361)

Section 361 deals with the taking away/enticing of minor children, i.e. under sixteen/eighteen years of age for male/female respectively, from lawful guardianship without their consent. The object of the section is to afford protection & security to minor wards from being seduced, harmed, or otherwise exploited by others.

• Kidnapping for ransom (Section 364A)

Section 364A of the IPC provides that whoever kidnaps/abducts and detains a person while causing reasonable apprehension of death/hurt in order to extort ransom, shall be punishable with death/life imprisonment and fine. This section was inserted in the IPC by the Criminal Law (Amendment) Act, 1993 to provide for stringent punishments for such an offence.

• Kidnapping for begging (Section 363-A)

Section 363A was introduced in the year 1959 to counter the growth of ‘organized begging’, wherein unscrupulous persons kidnapped children and maimed them for the purpose of begging, as defined under this section. It also introduced the presumption that if a person other than the lawful guardian uses/employs a minor for begging, then unless the contrary is proven, the child is presumed to be kidnapped. The offence of kidnapping the minor for begging is punishable with simple/rigorous imprisonment upto 10 years and fine, and if the child is maimed during the commission of this offence, the accused shall be punished with imprisonment for life.

• Kidnapping to compel for marriage (Section 366)

Section 366 provides that whoever kidnaps/abducts any woman with intent/knowledge likely to compel her to marry any person against her will, or in order that she may be forced/seduced to illicit intercourse shall be punishable with imprisonment of upto 10 years and fine. Further, if such offence is committed by employing the means of criminal intimidation/abuse of authority, the same punishment shall apply. The Bombay High Court, in the case of Emperor v. Ayubkhan Mir Sultan, has laid down that a minor’s consent to marry the accused cannot be effective even for the purposes of this section, and that it would amount to an offence under such circumstances. This was later affirmed by the Apex Court in its judgment of Thakorlal D Vadgama v. State of Gujarat, by stating that if the accused had laid a foundation by inducement/allurement/threat and if this gain influences the minor to leave her guardian’s custody, then it’d be prima facie difficult for him to plead innocence on the ground that the minor voluntarily came to him.

• Kidnapping for slavery etc. (Section 367)

Section 367 punishes those persons who kidnap/abduct any person in order to subject him or dispose him to the danger of being subjected to grievous hurt/slavery/unnatural lust of anyone, with imprisonment of upto 10 years and fine.

• Kidnapping for stealing from its person (Section 369)

Under 10 years of age only: Section 369 provides the punishment for kidnapping/abducting a child under 10 years of age in order to dishonestly take any movable property from the person of such child, by making the offender liable with imprisonment of upto 7 years and fine.

Procuration of minor girls (Section 366-A)

For inducement to force or seduce, to illicit intercourse: For convicting a person under Section 366-A, it’s essential to establish that he has induced a minor girl below the age of 18 years to go from any place/ do any act with the intent/knowledge that she would be forced/seduced to illicit intercourse with another person. Such offender shall be punishable with imprisonment of upto 10 years and fine.

Selling of minors for prostitution (Section 372)

Section 372 provides the punishment for selling a person under the age of 18 years of either sex for the purpose of prostitution, illicit intercourse, or for any other immoral purpose. The offence is complete the moment there is sale/letting to hire a minor with the aforementioned intention/knowledge, and is punishable with imprisonment of upto 10 years and fine. Further, such offence committed against a female is presumed to be done with the required mens rea unless proven to the contrary.

Buying of minors for prostitution (Section 373)

Section 373 punishes those persons who buy/hire any person under the age of 18 years with the intention/knowledge that he/she shall be employed for the purposes of prostitution, illicit intercourse, or for any other unlawful/immoral purpose, with imprisonment of upto 10 years and fine. Furthermore, such an offence committed against a female is presumed to be done with the required mens rea unless proven otherwise.

Rape

Section 375(6) of the IPC provides that the commission of sexual intercourse in any of the forms mentioned in clauses (a),(b),(c), and (d), with a minor girl under the age of 18 years will amount to rape, irrespective of her consent to such act. It deems the minor girl’s consent immaterial and inconsequential on a presumable ground that she’s incapable of thinking rationally and giving any consent. Plausibly, the Legislature presumes that such minor can be easily lured into consensual sexual intercourse without completely realizing its implications. Moreover, this section under Exception 2, also protects married women under the age of 15 years from being subjected to any kinds of sexual acts. 

The offence of rape committed against minor girls is punished under the IPC as follows:

Offences against newborn & unborn children

The offences against newborn & unborn child 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/ employ 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 a 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. 

In the case of Dr Jacob George v. State of Kerala, a surgical operation for abortion was performed by a quack on a woman with her consent, which resulted in her death due to the perforation of her uterus. The Supreme Court affirmed his conviction while laying down the principle that a person could be held liable under this section if the abortion is not carried out in good faith for the purpose of saving the woman’s life.

In another case of State of Maharashtra v. Flora Santuno Kutino, one of the respondents, who had illicit relations with a woman & pregnated her, was instrumental in causing miscarriage, and hence, was convicted by the High Court since such miscarriage was caused, not in good faith, but to wipe off his illicit relationship.

• 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, as highlighted in Emperor v. Blanche Constant Cripps & Anr., daycare centres, creches, orphanages, etc. are all included under it.

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.

Proposals for Reform 

The Fifth Law Commission had offered a few proposals for reform in the existing law relating to the protection of children but weren’t accounted for by the IPC (Amendment) Bill 1978 or the 42nd Law report. They are:

• A proviso should be added to Section 312 stating that it wouldn’t be an offence if miscarriage is done within 3 months of the pregnancy by a registered medical practitioner, so as to empower the mother of making the decision of bearing the child or not.
• The maximum punishment under Section 313 should be ‘rigorous imprisonment’ for upto 10 years & fine instead of life imprisonment.
• Under Section 317:

1. Age of the child precluded from exposure & abandonment should be reduced to 5 years from 12 years;
2. Reference to the risk of life or serious injury to the health of the child should be indicated more precisely;
3. The explanation to the section, being unnecessary, should be deleted.

• Section 318 should be deleted, as the concealment of birth can be punished under the law relating to registration of births & deaths, and the offence defined under this section can be punishable under Section 201 of the IPC.
• A new Section 318, making illegal omission to provide, without any lawful excuse, necessaries of life, knowing that the omission will endanger the life or seriously impair the health of that person, should be inserted.
• Section 359, 360, and 371 should be deleted from the IPC as they’re no longer relevant in the current Indian scenario, and since the offence under Section 360 could be appropriately dealt by Section 362.
• Sections 361, 362, and 368 should be revised, and the punishments provided under Sections 363, 363A, 366B, 367, 369, 370, and 372 should be enhanced. For most of these offences, taking into account their gravity, it suggested rigorous imprisonment instead of the existing imprisonment.
• A new section penalizing sexual intercourse by a man with his ‘child wife’ and ‘judicially separated wife’ should be added to the Code.

Section 364A (kidnapping for ransom) and the proposed punishment for the commission of illicit intercourse with a girl under 16 years of age with/without her consent, among other provisions, are examples of those sections that were added upon the recommendations of the Commission.

Conclusion

It is understood that the aforementioned offences relating to newborn & unborn children, 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. The IPC in pursuance of the Criminal Law (Amendment) Act, 2018, has recognised aggravated forms of various offences committed against children and has penalized them accordingly. Though plausible statutes have been enacted, minors of the society still remain vulnerable and are extravagantly exploited in the commission of crimes. Hence, stringent enforcement mechanisms should be employed to counter this issue so as to ensure the protection of children and to guarantee their safety. 

References

• The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860.
• Suman Sood @ Kamal Jeet Kaur v. State Of Rajasthan, AIR 2007 SC 2774.
• Emperor v. Ayubkhan Mir Sultan, (1943) 46 Bom LR 203.
• Thakorlal D Vadgama v. State of Gujarat, AIR 1973 SC 2313.
• K I Vibhute, P.S.A PILLAI’S CRIMINAL LAW 731- 739 (13th ed. 2019).
• The Criminal Law (Amendment) Act, 2018, No. 22, Acts of Parliament, 2018.
• 3 Hari Singh Gour, PENAL LAW OF INDIA 3175 (11th ed. 1998).
• Queen Empress v. Ademma, (1886) ILR 9 Mad 369. 
• Re Malayara Seethu, AIR 1955 Kant 27.
• Dr Jacob George v. State of Kerala, (1994) 3 SCC 430.
• State Of Maharashtra v. Flora Santuno Kutino & Ors., (2007) CrLJ 2233 (Bom).
• 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

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