INTRODUCTION
Chapter XVI of Indian Penal Code 1860 deals with the offence affecting human body which also includes offences relating to children such as causing miscarriage, injury to unborn children, abandonment and exposure of an infant and concealment of the birth of a child etc. In this article, we will try to understand more about the offence of Miscarriage and its various aspects.
The term Miscarriage usually used synonymously with the term Abortion. Medically both the terms are distinguished on the basis of phase of pregnancy when the product of conception is expelled from the womb of the mother. The term ‘abortion’ is used when the removal of ovum takes place within the first months of pregnancy before the formation of the placenta and the term ‘miscarriage’ is used when the removal of a foetus takes place between the fourth to seventh month of pregnancy before it is viable.
The term Miscarriage has not defined anywhere in the Indian penal code 1860. From the legal point of view, the term miscarriage means loss of a pregnancy that is a removal of immature child or foetus or embryo from the mother’s uterus at any period of pregnancy before the growth of a child completed.
More specifically, abortion can be classified into Spontaneous and Induced abortion.
In spontaneous abortion, abortion takes place on its own without any intervention of any medical procedures. That’s why it is also called natural abortion and is a medical term used for miscarriage. It may happen due to some medical problem of a woman which hinders in the development of child and progress of a pregnancy.
In Induced abortion, the woman voluntarily terminate the pregnancy caused by the deliberate interference of medical or surgical procedures to end the pregnancy
From a legal perspective, it can also be considered as a criminal abortion as according to IPC such kind of abortions are of illegal nature until the enactment of Medical termination of pregnancy act, 1971 (MTP Act) takes place which provides some special provisions to perform an abortion under a legal scope.
PROVISIONS OF CAUSING MISCARRIAGE UNDER IPC
Section 312 of the Indian Penal Code deals with the causing of miscarriage and provides punishment for the same. According to this section, a person who voluntarily causes a woman with child to miscarry shall be punished with the imprisonment for a term which may extend to three years, or with fine or with both and if causes a woman quick with the child to miscarry shall be punished for a term which may extend to seven years and also liable to fine. A woman who causes herself to miscarry also comes under the purview of this section.
Exception: The section is not applicable in the cases where the miscarriage is caused in good faith for the purpose of saving the life of the woman.
Essential Ingredients of the section-
1.ACT MUST BE VOLUNTARY
The section is applicable only when the act has done voluntarily and not a consequence of any accident or mishap and the act must also not be done in good faith. Voluntarily is defined under section 39 of IPC which represent intention or mens rea of the act. Thus, intention to cause miscarriage is a very essential element of the offence.
2.WOMAN WITH CHILD AND WOMAN QUICK WITH CHILD
These two terms are used within the section to distinguish punishment. The term ‘woman with child’ indicates a pregnant woman. In the case of Queen Empress v. Ademma[1], it is described that a woman is said to be with the child at the moment a woman conceives and the gestation period or the pregnancy begins.
The term ‘Quick with child’ refers to an advanced stage of pregnancy where quickening takes place that is mother feels the movement of the foetus in the fourth or fifth month of pregnancy or the embryo has taken a foetal form.[2]
So, causing a miscarriage of a woman quick with the child is more grave offence then causing a miscarriage of woman with child and therefore more rigorous punishment provided for the same.
In case of Akhil Kumar v. State of MP[3], a woman had a pregnancy of 24 weeks out of unlawful relations and a doctor applies an injection for termination of the pregnancy but the woman died the next day without miscarriage. It was held that doctor is amounted to voluntarily causing miscarriage under section 312 of the act with section 511 as it is presumed that he knows the possible effect of the medicine.
CONSENT OF WOMAN UNDER MISCARRIAGE
The offence of miscarriage under IPC is distinguished on the basis of consent. Consent plays a very essential role in determining the offence. Section 312 indicates the offence to be caused with the consent of the woman though it is not expressly written in the section itself but inclusion of section 313 that is causing of miscarriage without consent clearly indicates a distinction between the both.
So, in section 312 the offence of miscarriage is caused with the consent of the woman. Thus a woman causes herself to miscarry along with the person causing miscarriage will be liable to be punished under this section.
The offence of causing miscarriage without the consent of woman provided under s.313 is a much graver offence than s.312. Section 313 of the act can only be attracted in the case where pregnancy is terminated without the consent of prosecutrix.[4]
According to section 313 if the same offence provided under s.312 committed without the consent of the woman, whether the woman is quick with the child or not, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.
In case of Moidenkutty v. Kunhikoya[5], comparison between s.312 and s.313 is done that is punishment under s.312 is for a lesser term as compared to s.313 and in s.313 the person causing a miscarriage is alone liable to punishment but in s.312 person causing miscarriage and the woman herself both are liable for punishment.
In the case of Tulsi Devi v. State of Uttar Pradesh[6], a pregnant woman kicked by an accused woman in her abdomen resulting in miscarriage. Here accused woman convicted under section 313 of IPC.
DEATH CAUSED IN ATTEMPT TO COMMIT MISCARRIAGE
A person is liable to be punished under section 314 if the act of person while causing miscarriage leads to the death of such woman and shall be punished with imprisonment of either description for a term which may extend to ten years and also liable to fine.
But in case the act is done without the consent of such woman then it becomes more aggravated form of the offence and thereby shall be punished either with life imprisonment or with the same punishment previously mentioned.
Whether the offender may or may not known to the fact that the act committed by him can cause the death of such a woman, he shall be liable for the offence under this section. Here intention to cause death is not essential, it is sufficient to show that there is an intention to cause miscarriage.
In case of Jacob George v. State of Kerala[7], a pregnant woman operated by a homoeopath in order to cause abortion but she died after a few hours of operation as her uterus got perforated. So here conviction of doctor was upheld under s.314.
EXCEPTION TO OFFENCE OF MISCARRIAGE
Some exceptions are also there due to which miscarriage can be caused legally-
- Like in s.312 of IPC it is stated that the offence of miscarriage would not attract if the abortion is done with good faith for the purpose of saving the life of a mother and will be liable for the act if not done with good faith. So, a person will not be liable if the offence of miscarriage is carried out in order to prevent danger to the life of the mother.
In the case of State of Maharashtra v. Flora Santuno Kutino[8], Here the accused causes miscarriage to a woman, to end her pregnancy which is a consequence of their illicit relationship but the act of miscarriage leads to the death of that woman due to excessive bleeding. The court set aside his plea of an act done in good faith on the ground that the miscarriage was carried out to conceal his illicit relation and not to save the life of the deceased. So here good faith is not involved and hence convicted.
- Medical Termination of Pregnancy Act, 1971 provides certain guidelines under which a woman can easily terminate her pregnancy by registered medical practitioners in following cases where pregnancy involves risk to the life of woman due to certain abnormalities (physically or mentally) if pregnancy is an outcome of rape or due to failure of contraception methods and affects the mental health of woman etc.
CONCLUSION
Causing miscarriage to a woman is a very grave offence against the unborn children but on the other hand, a woman also has right over their body. So, there are lots of complexities involved between the right to life of the unborn child and the right to abortion by a woman. Thus, the law tries to stable the conditions and circumstances involved in both situations.
From the time of enactment of Indian Penal Code, it is against the act of induced abortions or miscarriages as provided under sections 312,313,314 with certain forms of miscarriages like causing miscarriage with consent and without consent of a woman and the act that causes death in an attempt to terminate a pregnancy with the distinguished punishments in each case. But due to growing demand of woman to terminate their pregnancy in certain situations leads to the enactment of Medical Termination of Pregnancy Act in 1971 which provides guidelines and circumstances under which woman can exercise their right to abortion within legal scope. It was needed to bring stability and woman can terminate their pregnancies but it is very essential to have a valid cause behind terminating the pregnancy to prevent criminal liability under IPC.
REFERENCES-
- The Indian Penal Code, 1860 (Act 45 of 1860).
- Ratanlal and Dhirajlal, The Indian Penal Code (Lexis Nexis, Gurgaon, 36th edn., 2019).
- PSA Pillai’s, Criminal Law (Lexis Nexis, Gurgaon, 12th edn., 2016).
[1] (1886) ILR 9 Mad 369.
[2] Re Malayara Seethu AIR 1955 Kant 27.
[3] 1992 Cr LJ 2029 (MP).
[4] Shantaram Krishna Karkhandis v. State of Maharashtra, 2007 Cr LJ 149 (Bom).
[5] AIR 1987 Ker 184
[6] (1996) Cr LJ 940(All)
[7] 1994 Cr LJ 3851.
[8] (2007) Cr LJ 2233 (Bom).
Author: RISHABH MANCHANDA,
Delhi Metropolitan Education affiliated to GGSIPU/ 2nd Year/ Law Student