Explanation:- This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.
” Section 317 requires three essentials: 1) The person coming within its purview must be father or mother or must have the care of the child. 2) Such child must be under the age of twelve years. 3) The child must have been exposed or left in any place with the intention of wholly abandoning it. Section 317, IPC is applicable only where the exposure or abandonment is of a child, both legitimate and illegitimate below 12 years of age.
This section is meant to protect the interests of children below 12 years of age, because they are not in a position to protect themselves. The primary responsibility is cast on the parents and adults, who may have the custody of the child to bring up the child and to provide adequate care for children of tender age. Generally the father is the natural guardian of the child and the mother’s status is only after that of the father. However, as far as Section 317 is concerned, the provision makes both the father and mother equally duty bound to care for the child. The section makes no difference between children born in wedlock or outside the wedlock. Apart from the parents, Section 317 also makes persons under whose care the children are placed, equally liable. Thus, day care centres, creches, orphanages, schools etc.
, are all covered by this provision. The gist of Section 317 is exposing or leaving with intention to abandon. The words ‘expose and leave’ mean leaving the child in danger, neglecting the child and not giving the child adequate protection from natural elements like cold, heat and other hazards. ‘Expose’ means to put outside physically, so that such putting outside involves some physical risk to the person who was put out.
The section further stipulates that ‘exposing or leaving of the child’ should be accompanied with ‘intention to abandon’. The word ‘leave’ must be understood ejusdem generis with expose. It does not mean merely relinquishment, but desertion in a place, with the intention of leaving it to its fate. The expression ‘or having the care of such child’ does not apply to a menial servant such as a nurse or an ayah. It means a person who has undertaken the support and maintenance of the child, whether by adopting it or by way of contract with the parent, or otherwise.
When the exposure and abandonment of the child under 12 years of age, results in the death of the child, then the father, mother or person in whose care the child has been left with, will be liable for murder or culpable homicide as given in the explanation to Section 317. However, such death of the child should be as a consequence of the exposure. The unlawful exposure of the child should directly cause death and should be done with the knowledge that it is likely to cause death, then the explanation to the section will apply. Section 317 applies where a child is exposed and no death supervenes; if, however, death follows, the conviction must be under Section 304. The offence is complete notwithstanding that no actual danger or risk of danger arises to the child’s life. Hari Singh Gour provides the following illustration: A woman deserted her illegitimate child of 10 days under circumstances where the child could and did obtain food.
However the child died of natural causes after four days. It was held that the mother was not guilty of murder. The nature of offence under Section 317 is cognizable, bailable, non-compoundable and triable by Magistrate of the first class.