Section 317 of Indian Penal Code, 1860 – Explained!
There is an explanation attached to the section which clarifies that in case of death of a child in consequence of the exposure the trial of the offender for murder or culpable homicide, as the case may be, shall go on and this section will not prevent the same. The section deals with the liability of the father or mother of the child or of any person who has care of the child. The child must be under twelve years of age.
The section is attracted when the offender shall expose or leave such child in any place. It must also be proved that the intention of the offender while doing so was to wholly abandon such child. If the child dies in consequence of the exposure this section shall not prevent the trial of the offender for murder or culpable homicide, as the case may be.
This section may be read in conjunction with illustration (b) of section 307 which says: ‘A with the intention of causing the death of a child of tender years exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
Whether the child is legitimate or illegitimate does not make any difference to the liability of its father and mother. It is, therefore, immaterial whether the child is born in wedlock or out of it. ‘Exposing’ the child means to put it outside physically and by such putting the child is subjected to some physical risk. ‘Leaving’ means putting the child under nobody’s care and causing it to remain unattended. In either case the intention must be to wholly abandon it.
Where the mother of a newborn child with the intention of disposing it of gave it to her sister who carried it by a train and then left it in a compartment. The child was found wrapped and a bottle of milk was lying beside it. The mother was held guilty under this section read with section 109 and her sister under this section only.
But where a married woman eloped with another man leaving her little child in the house of her husband, it was held that she could not be held guilty under this section as intention of wholly abandoning the child could not be inferred from the facts.
Where the mother of a newborn child exposed it and it died some time later under such circumstances which could be connected with its exposure remotely, the mother was held not guilty of murder but only of an offence under this section.
Where the mother of a newborn child left it in a place quite close to a village near a public road from where it was recovered shortly thereafter, the mother was held guilty under this section. On the other hand, where a ten day old illegitimate child was deserted by its mother under such circumstances that it was able to get milk feed, it was held that the mother had not committed an offence under this section.
Similarly, where the mother of a six month old illegitimate child left the child under the care of a blind woman promising to return soon but she never returned, it was held that she was not guilty under this section.
The offence under section 317 is cognizable, bailable and non-compoundable, and is triable by court of session.