The court clarifies that abandonment under Section 75 of the JJ Act does not require the act of leaving a child to be 'wholly' neglectful as per Section 317 IPC.

ORDER

Dated : 26^th March, 2026 The 1^st accused in S.C.No.315/2025 on the file of the Additional Sessions Court-I, Thalassery arising out of crime No.777/2024 of Peringome police station, Kannur, filed this Crl.M.C under Section 528 of BNSS praying for quashing all further proceedings against her. The offences alleged against the petitioner and the co-accused are under Sections 75 and 87 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short, JJ Act).

2. The prosecution case is that the accused, who is the mother of a three year old child suffering from autism, on 5.11.2024 at about 6.30 pm, abandoned the child and eloped with the 2^nd accused, her paramour.

3. According to the learned counsel for the petitioner, in order to attract the word 'abandon' the conduct of the accused should be calculated to leave a child, exposed to risk without protection. He has also relied upon the definition of the word 'abandoned child' as defined in Section 2(1) of the JJ Act, which reads as follows :-

S.2(1). "abandoned child" means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry.

4. He has also relied upon Section 317 of IPC which deals with exposure and abandonment of a child under 12 years by parents or person having care of it, in support of his above argument. of reads as follows :

317. Exposure and abandonment of child under twelve years, by parent or person having care of it.—

Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

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.

5. Relying upon the decision of this Court in XXX and Another v.

State of Kerala and Others, 2025 SCC OnLine Ker. 7952, the learned counsel would argue that though the rigour of Section 317 IPC as such is not applicable in a prosecution under Section 75 of the JJ Act, since at the time when the petitioner left her home, the child was in the care and custody of his father and grandmother and the petitioner only left the house and not exposed the child to sunlight and wilderness, the offence under Section 75 of the JJ Act is not attracted. Further, according to the learned counsel, in the above decision, the prayer for quashment was rejected for the reason that the mother had not entrusted the child with her parents. Relying upon the decision in Suman Vijay v. State Govt. of NCT of Delhi and Another , 2024 SCC OnLine Del.5268, he would argue that unless a child was examined by child Psychologist/counsellor, the actual reason for the child becoming violent after the incident, cannot be ascertained.

6. Section 317 IPC deals with exposure and abandonment of a child under 12 years with the intention of wholly abandoning such child and the punishment provided for the same is imprisonment of either description for a term which may extend to seven years or with fine or with both. The heading of Section 75 of the JJ Act is “Punishment for cruelty to child” and the punishment provided for the said offence is only imprisonment for a term which may extend to three years or with fine of Rs.1,00,000/- or with both.

7. As held by this Court in XXX and Another v. State of Kerala (supra), the word 'wholly' as available in Section 317 IPC is conspicuously absent in Section 75 of the JJ Act. Therefore,