Women represent approximately one-half of the global population, but because of gender disparities and bias, they are put in separate disadvantageous roles. They have become the subjects of abuse and exploitation all over the world by a male dominated culture. Ours is a tradition-bound culture under which, since time immemorial, women have been abused socially, politically, mentally, psychologically and sexually, often in the name of faith, sometimes under the pretext of scriptural writings and sometimes by legal prohibitions.

Before enacting the Constitution of India, the idea of equality between men and women was almost alien to us. Of course, the Preamble of the Constitution, which is the supreme law of the nation, seeks to protect civil, economic and political justice, freedom of thinking, speech, religion, faith and worship, equality of status and opportunities for its people, including women, and to foster fraternity that ensures the integrity of the individual.

The unfavourable sex ratio in India is cause by female infanticide or abortion of the female child before birth. The Indian sex-ratio was in a bad state in 1981 at 962 girls per 1000 boys. However, 20 years later, the inequality was even worse at 927 girls per 1000 boys. India has one of the world's highest infanticide rates. Between 2001 and 2011, India lost 3 million girls to infanticide. [1]

From the colonial era, cases of infanticide in India have been reported. It was first “discovered” during British rule by Jonathan Duncan who reported infanticidal instances by the Rajkumar Rajputs, Benares. The Rajkumar Rajputs allegedly starved new-born daughters to death. Soon after, infanticidal clans were discovered in India, namely, the Chauhhans, Bhadauriyas, Jats, Ahirs, etc who came from Punjab, Rajasthan and Uttar Pradesh.

At first the British considered the practice peculiar as it was not connected to caste or race. However, with increasing cases, it was soon considered to be a caste and clan characteristic. It was also discovered by the British that infanticide was linked to marriage customs. Hypergamy, status, dowry avoidance and a general neglect of female child led these clan to commit infanticide. [2]

Even though infanticide is illegal, it is still practiced secretly, which is evident from the ever skewed sex-ratio of India.

Infanticide under the Indian Penal Code

Section 315

Section 315 of the Indian Penal Code, 1860, relates to ‘ Act done with the intent to prevent child being born alive or to cause it to die after birth'. [3] It is the only provision in the Indian Penal Code that mentions infanticide as an offence, that is, killing of a child who is of 0 to 2 years of age. According to this section, an act done by a person with the intention of preventing a child from being alive when he/she is born or causing it die after he/she was born alive, causes the child to die before or after birth, will be punished for a term of imprisonment extending to ten years, or will be charged with fine, or both. Such act, when committed, does not include an act done to save the life of a pregnant woman, that is an act done in good faith.

In a case filed by the petitioner, if there is no documentary evidence that could be collected during the investigation of the case to support such an offence, a charge can nevertheless not be framed against the petitioner. Moreover, if the female was not examined by a doctor or a board of doctors to check if there was a termination of pregnancy before the birth and there exists no medical report for the same, then charge cannot be framed under this section. this is because, as the charge relates to the termination of pregnancy at the instance of the accused, such charge has to be supported by the medical opinion of a registered practitioner and the same will constitute a prima facie material for the charge. [4]

Section 315 regards the intention of the accused as important. The provision clearly states that if the termination of pregnancy is done with the intention of saving the life of the mother, then Section 315 is not applicable and cognizance cannot be taken for the offence. In State of Maharashtra v Rajendra Ramkisan Jaiswal [5], during the delivery of the child, there was a rupture in the mother's uterus . The rupture caused internal bleeding leading to the death of the mother as well as the child. Hence the death was not as a result of a deliberate act down by the respondent and was therefore not punishable under Section 315 of the Indian Penal Code.

Section 318

Section 318 of the Indian Penal Code relates to ‘Concealment of birth by secret disposal of dead body' . Under this Section, if a person, after the birth of a child, secretly buries or otherwise disposes off the dead body of the child to intentionally conceal the birth of the child, will be punishable with a term extendable to two years of imprisonment, or charged with fine, or both. [6] The offence is cognizable, bailable, and non-compoundable.

This section intends to preventing infanticide. It is directed towards a person who disposing of the body of a child upon his/her birth.
The properties of this section are:

1. Secret burying or in any way disposing of the dead body of an infant
2. The fact whether the child dies before, during or after the birth is not required.
3. The person disposing the body of a child should have an intention to conceal the birth of that child.

In Geetabai Tukaram Ambre v State of Maharashtra [7] , the accused mother was convicted under Section 318 of the Indian Penal Code as she intentionally tried to dispose of the body of her new born child to erase the evidence of giving birth. The mother was unmarried and committed the crime because of social compulsion, hence, her intention was clear.

Section 302

In India, the offence of infanticide or the killing of an infant is charged as murder and is therefore equivalent to conviction under Section 302 of the Indian Penal Code. [8]

Section 302 relates to ‘punishment for death'. It states that if a person commits murder, he/she can be punished with a sentence of death, imprisonment for life and will be liable for fine. [9]

In S.K. Harison v State of Delhi [10], the father of the infant was convicted under Section 302 of the Indian Penal Code for the murder of his four month old infant.

Instances not amounting to Infanticide

Death by Abandonment of an Infant

If in a case of abandonment or exposure leading to an infant's death, the accused is not charged under Section 315 of the Indian Penal Code, and the same is not regarded as infanticide. When an infant is abandoned, it has a risk of dying because of lack of care, being injured, or other crimes committed against the infant. However, a death under that circumstance does not come under this provision and is dealt with under Section 304 of the Indian Penal Code. [11] Section 304 relates to culpable homicide not amounting to murder.

Abandonment of an infant by a parent or a person assigned the care of a child, with the intention to fully abandon that child, leads to an offence under Section 317 of the Indian Penal Code, 1860. [12] A punishment under this section is described as a term of imprisonment for seven years, or with fine, or both.

Natural death

Section 315 of the Indian Penal Code takes into account the killing of an infant which is intentional. Intentional killing of an infant can be done because of discontent with the gender of the infant at birth, etc. However, the intention of the accused must be proved to constitute a crime of infanticide. [13] The Indian Penal Code does not consider natural deaths, also known as Sudden Infant Death Syndrome/Cot/Crib deaths, in which a new-born infant dies naturally upon birth or is a stillborn.

It also does not take into account death of an infant out of complication arising naturally after birth. These can be jaundice, birth asphyxia and other infection or heart defects. These causes of death are outside of the control of a human being and cannot be held against any accused in the court of law.
Lastly, the Indian Penal Code does not consider death of an infant done out of good faith of saving the mother's life as an infanticide. [14]

Cases pertaining to Infanticide

S.K Harison v State of Delhi [15]
In this case, the accused working in the Indian Navy met his wife and infant son of four months every alternate day after leaving his family at his parent's house. The accused had a history of inflicting violent behaviour on his wife and on 28th June 1990 accused her of chastity upon coming back from work. In a fit of rage, the appellant in this case snatched the infant from his mother, swung him in the air, and his head hit the bed's side. After this, the appellant continuously hurt him until his death.

While committing this gruesome act, the appellant had also put on the tape recorder and radio on full volume so that the noise of the infant's cry does not reach his neighbours. The appellant, however, contended that the death of the infant was accidental resulting after he tried to snatch the infant from his mother and the infant's head hit the folding bed. The court held that the mother had been pressurised to change her statement and going by the appellant's violent past had reason to believe that the story narrated by the mother was true. The appellant, who was previously convicted under Section 302 of the Indian Penal Code, was denied his appeal.

Miss Lulano Lotha v The State of Nagaland [16]
In this case, Lulano Lotha, a tribal girl from Nagaland was accused of infanticide of her new-born child. She was also accused for concealment and secret disposal of dead body, and was therefore charged under Sections 318 and 302 of the Indian Penal Code. This case is her appeal from the jail against the two above mentioned convictions. As confessed by the appellant in this case, Lulano gave birth to a male child through natural labour near her house.

After birth, she squeezed the throat of her child three times that caused his death immediately. After that she secretly disposed of the dead body by wrapping it with a cloth and disposing it in the nearby jungle. The officer in-charge of that area found a disposed of placenta of a dead body three days later and upon medical examination of Lulano arrested her for infanticide. The medical practitioner deciphered that Lulano delivered a full term baby by herself evident from the post-delivery fluid on her body.

He also said that the baby breathed before dying and was perfectly healthy after examining the dead body for post-mortem. He concluded that the cause of death was indeed asphyxia by strangulation. Upon evidence that the child was not stillborn and according to the confession of Lulamo, she was convicted for infanticide under Section 302 and concealment of the dead body and secret disposal under Section 318 of the Indian Penal Code. She was sentenced to life imprisonment and two years simple imprisonment for the same.

The court in this case held that, the confession given by the mother is not conclusive as it is given in English which is not the language of the mother. The court believed that her confession must not be properly translated. Moreover, the medical evidence is not definite and it cannot be said if the child was born alive. Therefore the charge of murder failed. The court also held that the mother was not seen pregnant during her gestation period and the court has no proof of her relation with the dead infant. Therefore, the charges were withdrawn and the appeal was allowed.

K.E. Thankamani v State of Kerala [17]
In this case, the Supreme Court granted special leave to the appellant who is convicted under Section 302 for the death of her two infants by throwing them into the well. The prosecution presented the case that the appellant had herself jumped into the well but had survived and therefore drew attention of the court to Rule 131 of the Criminal Rules of Practice, Kerala, 1982. According to this rule, in cases where women are convicted for the murder of their children or infanticide, a High Court reference has to be made to the government by the Sessions Judge stating his opinion on the reduction of sentence for the mother. Since the said rule was not noticed by the previous courts, the Supreme Court considered the matter of reduction of sentence for the appellant and mother in this case.

Mst. Radha v The State of Rajasthan [18]
Mst. Radha, the mother of an infant as alleged by the respondents, gave birth to a child and soon after birth killed the child and disposed of the body. According to the medical report the child was found to have sustained injuries with a burned substance on the skull in the post-mortem. The prosecution side also had witnesses to prove that Mst. Radha was in her final stages of pregnancy days before she gave birth and was seen holding a bundle in which her infant child was disposed of.

The trial court had convicted her under Section 318 and 302 of the Indian Penal Code. However, the Rajasthan High Court in this case held that it is true that Radha gave birth to a live baby whose body was found disposed. The court also noted that the circumstances mentioned by the prosecution is missing one main component, that is, if the skull injuries sustained by the infant was the cause of the death of the infant.

As mentioned in Section 318 of the Indian Penal Code, the accused must dispose of the body of a deadinfant. Therefore, if in this case the infant died of lack of care due to abandonment, the mother Radha cannot be held guilty. Since the evidence cannot prove the above important fact, Radha was acquitted of her charges and the appeal was allowed.

Conclusion
The data relating to infanticide in India is unreliable. In India as well as elsewhere in the world, infanticide is done secretly to avoid court proceedings. Sex-selective abortion is also secretly conducted by hospitals and doctors for a greater pay. Practices of infanticide and foeticide is often not reported but is evident from the unequal sex-ratio demographic since many years. India's statistical data on infant mortality being 32 deaths for every 1000 live births (as of 2017) also suggests the same. Therefore, India is far from achieving its ‘Beti Bachao, Beti Padhao' policy.

The crime of foeticide is given much importance under the Indian Penal Code, 1860, which consists of Sections 312, 315, 316 dedicated against it. However, infanticide or female infanticide is not clearly defined under the Indian Penal Code. Through case laws mentioned above it was evident that crime of infanticide is considered under Section 302 of the Indian Penal Code, which is punishment for murder.

Moreover, laws designed to discourage female infanticide and sex-selective abortions were adopted in 1994, but their enforcement was ineffective. According to news sources, 73 percent and 55 percent of sonography centres were found to be uninspected in two of India's richest states, Gujarat and Maharashtra, based on 2015 reports by the Comptroller and Auditor General of India. [19]

Nevertheless, killing of an infant especially of the female one, is an established crime since the British India which is evident from the Female Infanticide Prevention Act of 1870 passed in the British period itself. Section 7 of the Act claimed that it was originally only applicable to the territories of Oudh, the North-Western Provinces and Punjab, but the Act enabled the Governor General, at his discretion, to apply the statute to every other district or province of the British Raj. [20]

References:

1. PTI, India loses 3 million girls in Infanticide, The Hindu, 2012. [1]
2. Maria Brun, Institutions Collide: A study of “caste-based” collective criminality and female infanticide in India , 1789-1871, LSEPS, 7-12, 2010. [2]
3. Indian Penal Code, 1860, § 315. [3]
4. Girish Kumar Sharan v State of Jharkhand, AIR 2010 Cr LJ 4215 (Jhar). [4]
5. State of Maharashtra v Rajendra Ramkisan Jaiswal 2010 Cr LJ 3603 (Bom). [5]
6. Indian Penal Code, 1860, § 318. [6]
7. Geetabai Tukaram Ambre v State of Maharashtra, (1998) 100 (3) Bom LR 436. [7]
8. Lulano Lotha v The State of Nagaland, 1981 CriLj 522. [8]
9. Indian Penal Code, 1860, § 302. [9]
10. S.K Harison v State of Delhi, (2007) 98 DRJ 257 (DB). [10]
11. Banni, (1879) 2 All 349. [11]
12. Indian Penal Code, 1860, § 317. [12]
13. State of Maharashtra v Rajendra Ramkisan Jaiswal, 2010 Cr LJ 3603 (Bom). [13]
14. State of Maharashtra v Rajendra Ramkisan Jaiswal, 2010 Cr LJ 3603 (Bom). [14]
15. S.K Harison v State of Delhi, (2007) 98 DRJ 257 (DB). [15]
16. Lulano Lotha v The State of Nagaland, 1981 CriLj 522. [16]
17. K.E. Thankamani v. State of Kerala, 1998 SCC (Cri) 1357. [17]
18. Radha v The State of Rajasthan, 1973 (6) WLN 709. [18]
19. Beti Bachao: Government's efforts to eradicate female infanticide and sex-selective abortion are inadequate, Engage, 2019. [19]
20. Maria Brun, Institutions Collide: A study of “caste-based” collective criminality and female infanticide in India , 1789-1871, LSEPS, 7-12, 2010. [20]
    
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