1.Infanticide in India
Approximately half of the global population comprises women, yet due to gender disparities and biases, they are often relegated to disadvantageous roles. Across the world, a male-dominated culture has subjected women to abuse and exploitation, perpetuating a tradition of social, political, mental, psychological, and sexual mistreatment. This historical treatment of women, justified at times by faith, scripture, or legal restrictions, reflects a deeply ingrained, tradition-bound culture.
Before the enactment of the Indian Constitution, the concept of equality between genders was largely unfamiliar. However, the Constitution's Preamble, as the paramount law of the nation, endeavors to safeguard civil, economic, and political justice, freedom of thought, speech, religion, faith, and worship. It aims to ensure equality of status and opportunities for all, including women, fostering a sense of fraternity that upholds individual integrity.
2. Origin of Infanticide in India
The unfavorable sex ratio in India stems from practices such as female infanticide or prenatal abortion of female fetuses. Despite efforts, the sex ratio has deteriorated over the years. India has grappled with one of the world's highest rates of infanticide, losing an alarming three million girls between 2001 and 2011.
Infanticide traces back to the colonial era in India, initially noted during British rule by Jonathan Duncan, who reported instances among the Rajkumar Rajputs of Benares, where newborn daughters were allegedly starved to death. Subsequently, other clans such as the Chauhhans, Bhadauriyas, Jats, Ahirs, originating from Punjab, Rajasthan, and Uttar Pradesh, were found to engage in infanticide.
Initially considered an unusual practice by the British, disconnected from caste or race, increasing instances revealed its association with specific castes and clans. The British further discovered connections between infanticide and marriage customs, such as hypergamy, status, dowry avoidance, and the general neglect of female children, prompting these clans to resort to infanticide.
Despite being outlawed, infanticide persists covertly in India, evident from the persistently skewed sex ratio.
3. Infanticide is punishable under IPC(1)
Infanticide is addressed under the Indian Penal Code through two key sections.
Section 315 of the Indian Penal Code, 1860, specifically addresses acts aimed at preventing a child from being born alive or causing its death after birth. This provision focuses on the killing of a child aged 0 to 2 years. According to this section, anyone intentionally preventing a child from being born alive or causing its death after birth, resulting in the child's death before or after birth, can face imprisonment for up to ten years, a fine, or both. Notably, actions taken in good faith to save the life of a pregnant woman are not considered under this provision.
In cases where there's no documentary evidence supporting the offense during investigation, or if there's a lack of medical examination or reports confirming termination of pregnancy, framing a charge against the accused becomes untenable. The charge necessitates the support of medical opinion from a registered practitioner to constitute prima facie evidence.
The crucial factor in Section 315 is the intention of the accused. If the termination of pregnancy is carried out to save the mother's life, Section 315 does not apply. An example is the case of State of Maharashtra v Rajendra Ramkisan Jaiswal, where the death during childbirth was due to an unforeseen medical complication, not a deliberate act by the respondent, hence not punishable under Section 315.
Section 318 addresses the "Concealment of birth by secret disposal of dead body." This section penalizes individuals who, after a child's birth, clandestinely bury or dispose of the child's dead body to intentionally conceal the birth. Punishment for this offense can include up to two years of imprisonment, a fine, or both. Notably, the timing of the child's deathbefore, during, or after birthis not a determining factor. The crux is the intent to conceal the child's birth through secret disposal of the body.
These sections within the Indian Penal Code aim to prevent infanticide and penalize actions related to the deliberate concealment or causing of a child's death, either before or after birth.
4. Landmark cases of infanticide
Instances of infanticide have been documented in various legal cases:
In the case of S.K Harison v State of Delhi(2), an Indian Navy employee was convicted for causing the death of his four-month-old son. His history of violence towards his wife culminated in a brutal act where he fatally injured the infant. Despite his claim of accidental death, the court found the mother's statement credible due to pressure to alter her testimony. Given the appellant's violent past, his appeal was dismissed.
Miss Lulano Lotha v The State of Nagaland involved a tribal girl convicted for infanticide and concealment of the dead body of her newborn child. Despite her confession, doubts arose regarding translation accuracy and uncertainty about the child's live birth. The lack of definitive medical evidence led to the withdrawal of charges and her eventual acquittal.
In K.E. Thankamani v State of Kerala(3), a mother was convicted under Section 302 for throwing her two infants into a well. The Supreme Court, considering a rule for reduction of sentence in such cases, sought a reevaluation of her sentence due to prior courts' oversight of the rule.
Mst. Radha v The State of Rajasthan involved a woman accused of killing her newborn. Although evidence suggested she disposed of the infant's body, uncertainty about the cause of death led to her acquittal. The absence of proof linking the injuries sustained by the infant to its demise resulted in her release.
These cases highlight complexities in prosecuting infanticide, involving considerations of evidence, translations, medical findings, and the circumstances surrounding the deaths. The uncertainties surrounding live birth, causes of death, and legal standards for conviction underscore the challenges in these distressing cases.
5. Conclusion
The reliability of infanticide data in India remains questionable due to its clandestine nature, as individuals often resort to secrecy to evade legal repercussions. Similarly, sex-selective abortions are covertly performed by hospitals and doctors for monetary gain.
These practices, though underreported, are reflected in the persistent unequal sex ratio in demographics and India's infant mortality rate of 32 deaths per 1000 live births as of 2017, indicating the prevalence of such actions. Consequently, India's "Beti Bachao, Beti Padhao" policy aimed at protecting and educating girls appears far from achieving its objectives.
While foeticide is addressed prominently in the Indian Penal Code through Sections 312, 315, and 316, there's a lack of explicit definition or distinct provisions specifically targeting infanticide or female infanticide. Case laws have revealed that instances of infanticide are often considered under Section 302, which pertains to the punishment for murder.
Despite legislative efforts to discourage female infanticide and sex-selective abortions initiated in 1994, their enforcement has been ineffective. Reports from the Comptroller and Auditor General of India in 2015 highlighted alarming statistics, indicating that 73 percent and 55 percent of sonography centers in affluent states like Gujarat and Maharashtra remained uninspected.
6.Citation References
1. Indian Penal Code, 1860 bare act https://www.legalserviceindia.com/legal/article-4381-infanticide-in-india-an-analysis.html
- Indian penal code 1860 (45 of 1860)
- S.K. Harison v. State (NCT of Delhi), 2006 SCC OnLine Del 1145
- K.E. Thankamani v State of Kerala, 1999 CriLJ 487
