BNS S.88 to S.99 protect children from exploitation, abandonment and violence. They form the second half of Chapter V (Offences against Woman and Child). These provisions operate alongside the Protection of Children from Sexual Offences Act 2012 (POCSO) and the Juvenile Justice Act 2015, but this note deals only with the BNS provisions.
BNS S.88 = IPC S.312 (causing miscarriage). BNS S.93 = IPC S.317 (exposure of child). BNS S.95 = new (hiring child to commit offence, no IPC equivalent). BNS S.96 = IPC S.366A (procuration of child). BNS S.97 = IPC S.369 (kidnapping child for theft). BNS S.98 = IPC S.372 (selling child). BNS S.99 = IPC S.373 (buying child). Confidence: high for carried provisions; S.95 is entirely new.
Causing Miscarriage and Related Offences (S.88 to S.92)
| Section | Offence | Punishment |
|---|---|---|
| S.88 | Voluntarily causing miscarriage (not in good faith to save the woman's life). If quick with child, enhanced | Up to 3 years or fine or both; if quick with child, up to 7 years + fine |
| S.89 | Causing miscarriage without the woman's consent | Life imprisonment, or up to 10 years + fine |
| S.90 | Death caused by act done with intent to cause miscarriage | Up to 10 years + fine; if without consent, life or up to 10 years + fine |
| S.91 | Act done with intent to prevent child being born alive or to cause its death after birth | Up to 10 years or fine or both (unless in good faith to save the mother) |
| S.92 | Causing death of quick unborn child by act amounting to culpable homicide | Up to 10 years + fine |
Note: The Medical Termination of Pregnancy Act 1971 (as amended 2021) provides the lawful exception. Termination within its terms (by a registered medical practitioner, within the prescribed gestational limits, with the required opinion) is not an offence under S.88.
Offences against Born Children (S.93 to S.99)
| Section | Offence | Key Elements | Punishment |
|---|---|---|---|
| S.93 | Exposure and abandonment of child under 12 by parent or person having care | Intention of wholly abandoning the child | Up to 7 years or fine or both |
| S.94 | Concealment of birth by secret disposal of dead body | Secretly burying or disposing, whether child dies before, during or after birth | Up to 2 years or fine or both |
| S.95 | Hiring, employing or engaging a child to commit an offence | Whoever hires, employs or engages any child for that purpose; includes sexual exploitation or pornography | Not less than 3 years, up to 10 years + fine; plus punishment for the offence itself |
| S.96 | Procuration of child | Inducing a child to go from any place so that the child may be forced or seduced to illicit intercourse | Up to 10 years + fine |
| S.97 | Kidnapping or abducting child under 10 for theft | Taking a child under 10 intending to steal from the child's person | Up to 7 years + fine |
| S.98 | Selling child for prostitution | Disposing of a child intending it to be used for prostitution, illicit intercourse or any unlawful purpose | Up to 10 years + fine |
| S.99 | Buying child for prostitution | Obtaining possession of a child intending it to be used for prostitution or illicit intercourse | Not less than 7 years, up to 14 years + fine |
S.95: A New Provision
S.95 has no IPC equivalent. It criminalises the act of hiring, employing or engaging a child to commit any offence. The Explanation makes clear that using a child for sexual exploitation or pornography falls within this section.
Why it was introduced: Children are increasingly used as instruments of crime (drug delivery, theft, begging syndicates) because they attract lower punishment or are immune under S.20 (below 7). S.95 targets the adult who engages them, imposing a minimum of 3 years and adding the punishment for the offence itself.
Presumptions in S.98 and S.99
| Section | Presumption |
|---|---|
| S.98 Explanation 1 | Where a female under 18 is sold to a prostitute or to any person keeping a brothel, the person disposing is presumed to have disposed with intent for prostitution (until the contrary is proved) |
| S.99 Explanation 1 | Where a prostitute or person managing a brothel obtains possession of a female under 18, she is presumed to have obtained possession for prostitution (until the contrary is proved) |
These are rebuttable presumptions shifting the evidential burden to the accused.
Interaction with POCSO Act 2012
| Basis | BNS Chapter V | POCSO Act 2012 |
|---|---|---|
| Scope | General criminal offences against children | Specifically sexual offences against children (under 18) |
| Gender | Some provisions are gender-neutral; S.63 (rape) is male-on-female | Completely gender-neutral; protects all children |
| Penetrative sexual assault | S.63 to S.66 (rape, only male perpetrator) | S.3/S.4 (any person) |
| Non-penetrative | S.74, S.75 | S.7/S.8 |
| Mandatory reporting | Not required under BNS | S.19 POCSO mandates reporting |
| Special Court | Regular court (Sessions) | Designated Special Court under POCSO |
| Overlap | Where both apply, charge under the provision giving the higher punishment | Same principle |
Recall Check
- What is the new offence in S.95 that has no IPC equivalent?
- What presumption arises when a female under 18 is sold to a person managing a brothel?
- Distinguish S.88 (causing miscarriage) from the MTP Act.
- What is the minimum punishment for buying a child for prostitution (S.99)?
Key Cases
No specific landmark case is cited for these provisions in the syllabus. The relevant case law on child trafficking and exploitation is largely under POCSO and is outside the scope of this note.
Distinctions
| Basis | S.88 (Causing Miscarriage) | MTP Act 1971 (as amended 2021) |
|---|---|---|
| Nature | Criminal offence | Lawful exception |
| Who may terminate | Anyone (criminalised) | Only a registered medical practitioner with required opinion |
| Gestational limit | No limit stated; any stage is an offence | Up to 20 weeks (one opinion); 20 to 24 weeks (two opinions); no limit for substantial foetal abnormality (Medical Board) |
| Good faith saving | S.88 itself saves acts done in good faith to save the woman's life | The MTP Act provides the framework for lawful termination |
| If within MTP Act | Not an offence | Lawful |
| If outside MTP Act | Offence under S.88 | Offence under S.88 and potentially under MTP Act S.5 |
| Basis | S.95 (Hiring Child to Commit Offence) | S.98 (Selling Child for Prostitution) |
|---|---|---|
| Object | Any offence | Prostitution or illicit intercourse |
| Relationship | Hiring, employing or engaging | Selling, letting for hire, or otherwise disposing |
| Punishment | 3 to 10 years + punishment for the offence itself | Up to 10 years + fine |
| New/old | New in BNS | Carried from IPC S.372 |
| Basis | S.93 (Exposure and Abandonment) | S.94 (Concealment of Birth) |
|---|---|---|
| Child | Under 12, alive | Dead (before, during or after birth) |
| Intention | To wholly abandon | To conceal the birth |
| Disposal | Left in a place exposed to danger | Secret burial or disposal of the dead body |
| Punishment | Up to 7 years | Up to 2 years |
Flashcards
What is the new offence in BNS S.95?
Hiring, employing or engaging a child to commit an offence. Includes using a child for sexual exploitation or pornography. Minimum 3 years, maximum 10 years, plus punishment for the offence.
What is the punishment for causing miscarriage without consent (S.89)?
Life imprisonment, or imprisonment up to 10 years plus fine.
What presumption arises under S.98 Explanation 1?
Where a female under 18 is sold to a prostitute or brothel manager, the seller is presumed to have disposed of her for the purpose of prostitution until the contrary is proved.
How does S.88 interact with the MTP Act?
Termination within the MTP Act's framework (registered practitioner, within gestational limits, with required opinions) is lawful and not an offence under S.88. Termination outside that framework is punishable.
What is the minimum punishment for buying a child for prostitution (S.99)?
Not less than 7 years, up to 14 years, plus fine.
Exam Scenario
Problem: Meena, who runs a garment workshop, employs three children aged 10, 12 and 14 to work as stitchers. She also uses the 14 year old to deliver counterfeit goods to customers. Separately, an NGO discovers that a man named Farooq has "adopted" a girl aged 8 from a poor family by paying them Rs. 50,000, and has placed her in a dance bar. Advise on the criminal liability of Meena and Farooq.
Step 1: Test Meena's use of children
| Act | Provision | Analysis |
|---|---|---|
| Employing three children (10, 12, 14) as stitchers | Child labour laws (outside BNS), not an offence under BNS Chapter V unless the employment is for an offence | Not punishable under BNS S.95 because stitching garments is not an offence |
| Using the 14 year old to deliver counterfeit goods | S.95: hiring, employing or engaging a child to commit an offence | Delivering counterfeit goods is part of the offence of selling goods with a counterfeit property mark (S.349). The child is engaged to commit that offence |
Meena is liable under S.95 for using the 14 year old to deliver counterfeit goods. Punishment: not less than 3 years, up to 10 years, plus fine, and she is punishable for S.349 itself as if she committed it.
The employment of the other two children for stitching is a child labour violation under the Child and Adolescent Labour Act 1986 but not an offence under BNS Chapter V.
Step 2: Test Farooq's conduct
| Act | Provision | Analysis |
|---|---|---|
| Paying Rs. 50,000 to obtain possession of a girl aged 8 | S.99: buying a child for purposes of prostitution | Farooq obtained possession of a child intending that she be used for the purpose of prostitution (placing her in a dance bar) |
| Placing her in a dance bar | Evidence of the intent required by S.99 | Confirms the purpose |
Under S.99 Explanation 1: where a person managing a brothel (or dance bar used for such purposes) obtains possession of a female under 18, it is presumed that possession was obtained for prostitution until the contrary is proved.
Farooq is liable under S.99: not less than 7 years, up to 14 years, plus fine.
The parents who sold the child are liable under S.98: up to 10 years plus fine. The Explanation 1 presumption (disposal to a person keeping a brothel) operates against them.
S.95 does not criminalise all child labour. It criminalises hiring a child to commit an offence. Stitching garments is not an offence (though it may violate labour law). Only the delivery of counterfeit goods engages S.95.
"Adoption" for payment is not recognised. The payment of Rs. 50,000 is buying a child. The label "adoption" does not change the legal character of the transaction when the purpose is exploitation.
Conclusion. Meena is liable under S.95 for engaging a child to deliver counterfeit goods. Farooq is liable under S.99 (buying a child for prostitution, minimum 7 years). The parents are liable under S.98.
See Also
- Sexual Offences against Women : the first half of Chapter V (S.63 to S.79).
- Offences Relating to Marriage : the marriage offences in the same chapter (S.80 to S.87).
- Kidnapping, Abduction and Trafficking : trafficking of children (S.143, S.144) in Chapter VI.