Child Abductions at Birth: Legal Dynamics and Pursuit of Justice

Author: Palak Duneja, 4th year Student at Delhi Metropolitan Education affiliated to GGSIPU.

Introduction

Child Abduction is the act of unlawfully taking away or detaining a child from the child’s parents or Legally assigned guardians, without their consent and Approval. This crime can involve strangers or someone whose presence the child is familiar with^[1]. The primary concern which lies is the unauthorised detention of the Child. This may lead to an everlasting – emotional trauma and violate the rights of the parents and the Child. The concept of Abduction as a criminal offence or the definition of the same can be traced back to the British – colonial Era, when the Indian Penal Code was enacted. However, There have been several Cases which have influenced the punishment criteria for this offence, till date.

Child Abduction: A Brief Overview

According to the Black’s Law Dictionary, the word “Abduction” refers to a criminal Offence which involves taking away someone  by force or strong persuasion^[2].  The issue of Child Abductions in India is complex as it is influenced by multiple social, economic as well as cultural factors. Social and Economic factors include Poverty, Lack of Education, etc^[3].

In a country like India, Child Abductions can occur for various reasons which can include family disputes, Financially low or Financially High, trafficking, etc. It is very commonly assumed and seen that the abductor in most cases is someone who results to be a relative of the Child or a family Friend.

Assessing the Causes

The following can be some of the reasons why a child may be Abducted^[4]:

Desire of Having a Child

Desire to have a child by someone who cannot have it due to reasons such as Infertility, can be a major reason for causing Child Abductions at Birth. This desire can be seen to occur due to emotional breakdown, pressures received from the society to have kids and even the non- ability to adopt a kid, legally.

Mental Health Issues

There are some individuals present who are not properly treated for Mental Illnesses or even have severe mental Health conditions. These people can cause Child Abduction as a belief of Compulsion, etc. They might feel that a particular newborn baby is their child.

Financial Issues^[5]

Financial Issues are those issues which can force any person to take drastic measures, which initially he/she might not have wanted to take. The abducted baby may be sold by the abductor for Illegal Adoption or Trafficking. Criminals also consider newborns more suitable for their plans as they are easy to integrate into a new family and too innocent to understand what is right and wrong.

Custody Disputes^[6]

Divorces or Judicial Separation can lead to one parent taking drastic measures to attain sole custody of the child. These disputes arise due to fear, Anger and Desperation because they might consider the parent unfit.

Surrogacy and Adoption

Scams of Surrogacy and Adoption scams are another factor contributing to child abductions at birth. Fake Surrogacy agreements or Fraudulent Adoption procedures are used to gain access to the data in regards to newborns.

Legal Protection

Child Abductions are considered to be a criminal offence in the society due its nature of inflicting tremendous amount of Pain and suffering both physically as well as Mentally. The Indian Government has provided protection against this crime under multiple statutes, including the newly enacted 3 criminal Laws in the Year 2023. The provisions are as follows:

1. Indian Penal Code:

IPC has always addressed the issue of child abductions which also involves Abductions at Birth.

• Section 361 – The Section deals with the offence of Kidnapping from the Legal Guardianship taking a minor^[7] or a person of unsound mind away from their guardians without their consent.^[8]
• Section 362 – The section talks about defining Abduction.^[9]
• Section 363 – The Section describes punishment for kidnapping which involves imprisonment upto 7 years along with fine^[10].
• Section 364A – Severe punishments are applicable in cases of abduction for ransom, etc. These punishments also involve Life Imprisonment and Death Penalty^[11].

2. Juvenile Justice (care and Protection of Children) Act, 2015:

The Act involves the following provisions:

• Section 75 – This Section penalises any person who causes cruelty to a child which involves abduction and assigns Imprisonment upto 3 years along with Fine^[12].
• Child Welfare Committee – The Act establishes CWC which ensures the protection and welfare of the Child. They intervene in cases of Abduction and provide immediate care.^[13]

3. Protection of Child from Sexual Offences (POCSO) Act, 2012

This Act lays down specific inference on the protection from Sexual Offences, including the cases of Child Abduction. Following are the relevant provisions:

• Penalties – The POCSO act mentions severe penalties for children related offences which also involve a punishment of Life Imprisonment^[14].
• Child – Friendly Procedure – The Act mandates child – friendly legal procedures which involve protection of the Child’s identity^[15].

4. Bhartiya Nyaya Sanhita, 2023

The relevant provisions are as follows:

• Section 99 – This section talks about buying a child of any Age for Prostitution purposes or Illicit Intercourse is an offence and punished with imprisonment which shall not be less than 7 years but extend upto 14 years with Fine.^[16]
• Section 137 – This Section talks about any child or any person of unsound mind, when kidnapped from the protection of the Legal Guardian without their consent is punishable under BNS^[17].
• Section 141 – This section talks about Importation of Girl under the Age of 21 years or a boy under the Age of 18 years from the Foreign Country with the intention that the girl or boy may be forced to perform illicit intercourse with another person is an offence which is punishable with Imprisonment upto 10 years and Fine^[18].

5. Hague Convention on the Civil Aspects of International Child Abduction, 1980

India’s participation in the International treaties and conventions also stretches the legal Protection against Child Abduction. However, Hague Convention on the Civil Aspects of International Child Abduction, 1980 has not been fully adapted and implemented by the Indian Government in India but it has helped in influencing the approach to child abduction of the country. This convention provides protection to the children from International Abduction by anyone and ensures their safe return to their respective home country^[19].

Recent Incidents & Case Studies

1. Government Hospital in Rohini (2024):

A woman is arrested with a charge of kidnapping a newborn from a government hospital in Northwest Rohini District. She faked her pregnancy and got admitted in the hospital for a medical Checkup and later kidnapped the Baby. The reason behind this was her inability to conceive a child along with her lying to her husband about her being pregnant.^[20]

2. Use of AI to trace missing kids (2024):

An NGO named ‘Search my Child’ has requested the Minister of state of Ahmedabad, Mr. Harsh Sanghavi to use the benefit of Artificial Intelligence for finding children who have been missing for a long time which would have resulted in changing their visual expressions^[21].

3. Civil Hospital Complex, Ludhiana (2023):

A 4 day old baby was kidnaped by a woman and her accomplice for selling from the hospital.^[22]

4. B K Hospital, Faridabad (2023):

3 people kidnapped a baby from B.K Hospital, Faridabad soon after the baby was delivered. The person who kidnapped the baby, had taken the newborn near Anand Vihar Metro station with an intention to sell the kid for Rs. 1.5 lakh and was being guided by a Faridabad resident. ^[23]

5. Minor Boys rape and murder girl in Andhra Pradesh (2024):

3 minor boys gang raped and further murdered an 8 year old girl in the district of Nandyal, Andhra pradesh after abducting her and further hiding her body after murder.^[24]

Conclusion

Child Abduction at birth is a serious crime that requires a legal framework and effective enforcement of the legal framework to ensure the safety of children and their families. It has been reported that during the period 2018 – mid 2023, approx. 6 children had disappeared per hour, among which abduction of Girl child was higher than that of Boy child.^[25] According to the Data provided by the Ministry of Women and Child Development in 2023, approx. 2,75,125 children were abducted and went missing between the year 2018 – 2023. Madhya Pradesh had the highest number of reported missing children across the nation.

In September 2023, Varanasi police had arrested 10 people who were kidnapping over 50 children and making them beg^[26]. Preventing child Abduction at birth requires introduction of strong security measures in the Hospitals and Birthing Centres. Strict identification methods such as use of electronic tagging on the Newborns and hiring a team which are trained to recognize suspicious behaviour and activity could be done to prevent abductions at birth.

^[1] ABOUT ABDUCTION, Action Against Abduction, http://www.actionagainstabduction.org/about-abduction/.

^[2] ABDUCTION DEFINITION & LEGAL MEANING, The Law Dictionary, https://thelawdictionary.org/abduction/.

^[3] Amarnath K. Menon, HOW TRAFFICKERS SOLD STOLEN BABIES TO CHILDLESS COUPLES AROUND INDIA, India Today (May. 30, 2024, 6:42PM), https://www.indiatoday.in/india-today-insight/story/how-traffickers-sold-stolen-babies-to-childless-couples-around-india-2545621-2024-05-30.

^[4] Madison Park, WHO WOULD STEAL A BABY, AND WHY?, CNN (Jan. 25, 2011), http://edition.cnn.com/2011/HEALTH/01/25/baby.abduction.profile/index.html.

^[5] Amarnath K. Menon, supra note 3.

^[6] C.M Frankie, WHAT DRIVES SOME PEOPLE TO KIDNAP CHILDREN?, A&E Television Networks (Aug. 2, 2021), https://www.aetv.com/real-crime/why-do-some-people-kidnap-kids.

^[7] A person who is under the age of 16 for Boys and 18 for Girls.

^[8] CHAPTER 11 – KIDNAPPING AND ABDUCTION, Manupatra,, http://student.manupatra.com/Academic/Abk/Indian-Penal-Code/chapter11.htm.

^[9] Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. [Indian Penal Code,1860, § 362.]

^[10] Whoever kidnaps any person from or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.  [Indian Penal Code,1860, § 363.]

^[11] Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.]  [Indian Penal Code,1860, § 364(A).]

^[12] Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both:

Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this section shall not apply in such cases:

• Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees:
• Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees.

[Juvenile Justice (care and Protection of Children) Act, 2015, § 75.]

^[13] The State Government shall by notification in the Official Gazette constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the duties conferred on such Committees in relation to children in need of care and protection under this Act and ensure that induction training and sensitisation of all members of the committee is provided within two months from the date of notification. [Juvenile Justice (care and Protection of Children) Act, 2015, § 27(1).]

^[14] Protection of Child from Sexual Offences (POCSO) Act, 2012.

^[15] (3) Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section 2 in a simple language so that the child understands the contents being recorded. [Protection of Child from Sexual Offences (POCSO) Act, 2012, § 19(3).]

(4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same. [Protection of Child from Sexual Offences (POCSO) Act, 2012, § 19(4).]

(5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection including admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report, as may be prescribed. [Protection of Child from Sexual Offences (POCSO) Act, 2012, § 19(5).]

^[16] Whoever buys, hires or otherwise obtains possession of any child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such child will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to fourteen years, and shall also be liable to fine.[Bhartiya Nyaya Sanhita, 2023, § 99.]

^[17] Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. [Bhartiya Nyaya Sanhita, 2023, § 137(2).]

^[18] Whoever imports into India from any country outside India any girl under the age of twenty-one years or any boy under the age of eighteen years with intent that girl or boy may be, or knowing it to be likely that girl or boy will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine. [Bhartiya Nyaya Sanhita, 2023, § 141.]

^[19] Convention on the Civil Aspects of International Child Abduction, 1980.

^[20] WOMAN KIDNAPS NEWBORN FROM HOSPITAL, HELD, The Times of India (Jan. 6, 2024, 08: 14 IST), https://timesofindia.indiatimes.com/city/delhi/absence-of-law-cant-give-blanket-immunity-to-adulterer-spouse/articleshow/106587189.cms.

^[21] TNN, USE OF AI T TRACE MISSING KIDS, The Times of India (May. 25, 2024, 04:43 IST), https://timesofindia.indiatimes.com/city/ahmedabad/use-ai-to-trace-missing-kids/articleshow/110410006.cms.

^[22] BABY KIDNAPPED FROM MOTHER & CHILD HOSPITAL, RESCUSED IN 10 HOURS, The Times of India (Apr. 18, 2023, 08:39 IST), https://timesofindia.indiatimes.com/city/ludhiana/baby-kidnapped-from-mother-child-hospital-rescued-in-10-hours/articleshow/99572992.cms.

^[23] Express News Service, STAFF NURSE, 2 OTHERS HELD FOR KIDNAPPING NEWBORN FROM FARIDABAD HOSPITAL, The Indian Express (Sep. 14, 2023, 10:31 AM), https://indianexpress.com/article/cities/delhi/staff-nurse-held-kidnapping-newborn-faridabad-hospital-8939336/.

^[24] MINOR BOYS RAPE AND MURDER 8 YEAR OLD GIRL IN ANDHRA VILLAGE, The Salesman (Jul. 11, 2024, 7:45 PM), https://www.thestatesman.com/india/minor-boys-rape-and-murder-eight-year-old-girl-in-andhra-village-1503319450.html.

^[25] Biswajeet Banerjee, VANISHING INNOCENCE| EPIDEMIC OF MISSING CHILDREN, The Pioneer (Sep. 17, 2023), https://www.dailypioneer.com/2023/sunday-edition/vanishing-innocence—epidemic-of-missing-children.html.

^[26] Biswajit Banerjee, RESCUING HOPE: THE UNSEEN CRISIS OF MISSING CHILDREN IN INDIA, Free Press Journal (Mar. 3, 2024, 07:17 IST), https://www.freepressjournal.in/india/rescuing-hope-the-unseen-crisis-of-missing-children-in-india.