Report No. 35
Topic Number 47
Infanticide
895. Infanticide by woman.-
There is one specific type of homicide by women which requires some detailed consideration. That is infanticide by a woman of her own child, within a certain period after the delivery. It is believed that, within certain period after delivery, the mother would not have fully recovered from the effects of giving birth to the child; and the balance of her mind would, therefore; have been disturbed. In such a situation, it would be just not to impose the sentence of death on her. In fact, though there is no statutory provision on the subject in India, courts have, in the few cases of this type that have been reported, exercised their discretion in favour of the lesser sentence1.
1. For example, see Analysis of case-law, Case No. 53. Also see ibid., Case No. 47.
896. This subject has had a long history in England1. A private member's Bill, "The Child Murder Trial Bill, 1922", was passed into law as the Infanticide Act, 1922. That Act provided that where a woman, by any wilful act or omission, causes the death of her newly-born child in such circumstances` that, but for that Act, the offence otherwise would have amounted to murder, but, at the time she had not fully recovered from the effect of giving birth to the child and by reason thereof the balance of her mind was then disturbed, then she would be guilty of infanticide and might be dealt with and punished as if she had been guilty of manslaughter.
Difficulties arose as to the scope and meaning of the expression "newly born child"; and the Infanticide Act of 19382 repealed this Act and substituted a provision, whereunder a woman who caused death of her child under the age of 12 months would get the protection where the balance of her mind was disturbed by reason of her not having fully recovered from the effect of child birth. Even in cases where the Act of 1938 does not apply, for example, where the child is more than a year old, the practice in England is to commute the sentence3.
Section 1 of the Infanticide Act, 19384, is quoted below:-
"1. Offence of Infanticide.-(1) Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder, she shall be guilty of felony, to wit, of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.
(2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this Act they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide.
(3) Nothing in this Act shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter, or a verdict of guilty but insane, or a verdict of concealment of birth, in pursuance of section sixty of the Offences against the Person Act, 1861, except that for the purposes of the proviso to that section, a child shall be deemed to have recently been born if it had been born within twelve months before its death.
(4) The said section sixty shall apply in the case of the acquittal of a woman upon indictment for infanticide as it applies upon the acquittal of a woman, upon an indictment for murder."
Mere age of the child is not sufficient; the balance of mind of the mother should also have been disturbed5.
1. See detailed discussion, see R.C. Report, pp. 57 to 59, paras. 154-162.
2. The Infanticide Act, 1938 (1 & 2 Geo. 6, C. 36).
3. R.C. Report, p. 59, para. 162, and p. 277, para. 646.
4. The Infanticide Act, 1938 (1 and 2 Geo. 6, C. 36).
5. R. v. Soanes, (1948) 1 All ER 289.
897. It may be noted, that a provision reducing the punishment in the case of infanticide exists in the laws of a few other countries1. A typical provision is that found in the Criminal Code of Canada2, sections 204 and 203 of which are quoted below:-
"Section 204-A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
Section 208-Every female person who commits infanticide is guilty of an indictable offence and is liable to imprisonment for five years.".
1. See R.C. Report, p. 447, para. 30, and succeeding paras.
2. (Canada) Criminal Code, sections 204 and 208.
898. We have considered the question whether it is necessary to insert any provision in the Indian Penal Code on the subject. In India the question of sentence for murder is in the discretion of the court1, and it is open to the court to impose the lesser sentence of imprisonment for life where the mind of the offender appears to have been influenced by the effects of recent child-birth2. Where even the sentence of imprisonment for life is regarded as harsh, the court can make a recommendation to the State Government for suitable commutation of the sentence.
For these reasons, we do not recommend the insertion of any specific precision on the subject. In fact, by keeping the matter flexible, we can avoid the difficulties which arise if a rigid period is put in the provision. The question of burden of proof, namely, whether it is the duty of the defence to bring the case within the lesser offence of infanticide, would also be avoided.
1. Section 302, Indian Penal Code.
2. See Analysis of Case-Law, Case No. 53.
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