• Abandonment of child leaving husband’s home under Section 317 IPC and Section 75

Me and my husband have a child together. The child is 4 months old. 
I don’t want to live with my husband anymore. I am willing to take care of the child and live separately from my husband, with the child. I want to know what if my husband doesn’t let me take the child and insists on keeping the child with him, can I face any legal repercussions? Can I be sued under IPC section 317 or section 75 with regards to abandonment of the child, if I decide to live separately from my husband and leave the baby in his care? 
What other legal repercussions can I face if I decide not to live with my husband and as per his wish, leave the child with him?
Asked 6 days ago in Family Law
Religion: Hindu

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7 Answers

Your baby is only 4 months old 


how can you even think about abandoning your baby 


3) when your husband goes to office you can leave your husband residence with baby 


4) go to your parents place 


5) cannot be forced to stay with husband 


5) if you are abroad come down to India with child 

6) 317. Exposure and abandonment of child under five years by parent or person having care of it.- Whoever being the father or mother of a child under the age of five 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, if such act endangers, or is likely to endanger, the life of the child or permanently injures, or is likely to permanently injure, the health of the child, be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."


7) you would not be prosecuted under section 317 IPC as you are leaving the child in custody of his father 

Ajay Sethi
Advocate, Mumbai
92778 Answers
7130 Consultations

5.0 on 5.0

You cannot be sued under IPC section 317 or section 75 for abandonment of the child, if you decide to live separately from your husband and leave the baby in his care. Section 317 of the Indian Penal Code states that anyone who is the parent or caretaker of a child under twelve years and intentionally leaves the child in a place with the intention of completely abandoning them can be punished with imprisonment for up to seven years, or a fine, or both. Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 states that anyone who leaves a child in any place with the intention of abandoning them can be punished with imprisonment for up to three years, or a fine of one lakh rupees, or both.

However, in your case, you are not leaving the child in any place, but in the care of your husband, who is also the child’s father and natural guardian. Therefore, you are not abandoning the child, but merely giving up your custody rights. You are also willing to take care of the child and live separately from your husband, which shows that you are not neglecting or deserting the child. Therefore, you cannot be charged under these sections for abandonment of the child.

However, this does not mean that you will not face any legal repercussions if you decide to live separately from your husband and leave the child with him. Some of the possible legal consequences are:

  • Your husband may file for divorce on the grounds of cruelty or desertion by you under Section 13(1)(ia) or (ib) of the Hindu Marriage Act, 1955. He may also claim alimony or maintenance from you under Section 25 of the same act.
  • Your husband may file for sole custody or guardianship of the child under Section 6 or 7 of the Hindu Minority and Guardianship Act, 1956. He may also claim child support or maintenance from you under Section 20 of the same act.
  • You may lose your parental rights and responsibilities towards the child, such as your right to visitation, access, education, health, religion, etc. You may also lose your inheritance rights over the child’s property.
  • You may face social stigma and discrimination from your family and society for leaving your husband and child.

Therefore, it is advisable that you do not take such a drastic step without considering all the legal and personal implications. You should try to resolve your marital issues amicably with your husband and seek professional help if needed. You should also think about the best interests and welfare of your child and how your decision will affect him or her. You should consult a lawyer for specific guidance on your case.


Muraleedharan R
Advocate, Trivandrum
183 Answers
2 Consultations

5.0 on 5.0

As per law, both the parents have an equal right to the custody of a child.

- Under Hindu law, A mother usually gets custody of the minor child, under the age of five and fathers get custody of older boys, but it is not a strict rule and is primarily decided based on the child’s interests.

- The choice of a child above the age of nine is considered, and further a mother who is proven to neglect or ill-treat the child is not given custody.
- Since, the said child is only 4 months old ,then the custody should be given to the mother , and he cannot insist on keeping the child with him.

- However, if your husbands keep the child with him , then you will not face any legal repercussions , and further cannot be sued for the same under any provision of law, as the custody will remain with the natural guardian. 

- Further, you cannot be forced legally to live with your husband and to keep the child with you. 

Mohammed Shahzad
Advocate, Delhi
12115 Answers
169 Consultations

5.0 on 5.0

You need to file for custody for taking him with you forever the court will decide the same

Prashant Nayak
Advocate, Mumbai
30725 Answers
154 Consultations

4.1 on 5.0

No case made out if child stay with father but being mother, first legal right of custody of child is on mother.

This is not a case of abandonment.

Yogendra Singh Rajawat
Advocate, Jaipur
22283 Answers
31 Consultations

4.4 on 5.0

If you want to leave the company of your husband, you cannot be forced by him to remain with him and live together against your willingness.

The child until attains 5 years of age can remain with the mother as per Indian law, however since you are residing in USA, you may enquire locally about your situation.

It can be presumed that you are living in India because you are referring to Indian Penal Code, hence you can very well take the infant child with you while leaving the house of your husband. 

T Kalaiselvan
Advocate, Vellore
82974 Answers
1980 Consultations

5.0 on 5.0

Dear client
In many legal systems, parents have certain rights and responsibilities towards their children, regardless of whether they are living together or separately. If you decide to live separately from your husband and want to take care of your child, you typically have the following options:

Negotiate a Custody Agreement: You and your husband can come to an agreement on child custody and visitation arrangements, either informally or through mediation. This can help establish clear guidelines on how the child's time will be divided between both parents.

Legal Custody: Legal custody refers to the right to make important decisions about the child's upbringing, such as education and healthcare. In many cases, both parents continue to share legal custody even if they don't live together.

Physical Custody: Physical custody refers to where the child resides. If you have physical custody, the child will primarily live with you, but your husband may still have visitation rights or parenting time.

Child Support: If your husband is not the primary caregiver, he may be required to pay child support to help with the child's expenses, even if he has visitation rights.

It's important to note that unless there are concerns about the child's safety or well-being, most legal systems prioritize the best interests of the child. Courts generally aim to ensure that both parents have a role in the child's life.

Abandonment charges are typically not applicable if you are leaving the child with the other parent, especially if it's agreed upon by both parties. However, you should consult with an attorney in your jurisdiction to understand the specific laws and regulations that apply to your situation. They can help you navigate the legal process and protect your rights as well as the best interests of the child.

In situations like this, it's often advisable to seek legal counsel early to ensure that your rights as a parent are protected and that any arrangements are made in a legally enforceable manner.



Anik Miu
Advocate, Bangalore
7720 Answers
88 Consultations

5.0 on 5.0

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