India’s Abortion Laws
By Yuvraj Ranolia,
3rd-year (6th semester) student of the School of Law, Christ (deemed to be University).
Abstract- This article tries to give a brief of an legislation & laws India possess and practices to control abortion or it’s related crimes which existed in society with long lasted taboos and to give an overview of what are the rights of Indian women during pregnancy relating to abortion. India has a long back history of Abortion as a religious taboo in society as long as ‘Sati-Pratha’, but ironically this has been removed way back by British high officials during the Colonization era[1]on 4th December 1829. The researcher have used emancipatory and pragmatic approach for this research. With this author tried to answer the options one possessed for an abortion during pregnancy and ended this article with giving personal analysis.
Index terms- Introduction, Indian Penal Code, The Medical Termination of Pregnancy Act, 1971, Analysis.
1. INRODUCTION:
Abortion means “termination of pregnancy before the fetus can develop an independent life[2]. The US Supreme has put a light on this matter and said that ‘Constitution of US permitted every pregnant woman to decide to whether or not to terminate her pregnancy, during the first trimester of her pregnancy but obtaining an abortion from a licensed physician only’[3] pregnant woman have given every right to decide what she wants and given her health priority.
The pregnancy of a woman can be taken through abortion only when with her consent and of her legal guardian in writing where she has not attained the age of 18 years (age of majority defined under Indian law)[4] and in all the situations of abortion, the consent of pregnant woman & her physical, mental and emotional health will be given utmost significance[5], the gestation period will be measured by the legally allowed practitioner in case of abortion which is not allowed before or less than 12 weeks and two doctors view in case the gestation period has moved more than 12 weeks but not 24 weeks[6], the reason for this extension is to reduce ‘Maternal Mortality’ and giving girl’s consent an upper hand deciding whether to go for an Abortion or not.
2. INDIAN PENAL CODE:
Section 312 of IPC talk that if the miscarriage is caused not to save the life of a pregnant woman or in good faith[7], then the miscarriage will be illegal and carry the punishment of 3 years or with fine or with both an if the woman is quick with child, shall be punished with imprisonment extending to 7 year
s and with fine[8]. An unmarried woman who is pregnant because of her illicit relationship and the miscarriage was caused to wipe out evidence of deceased being pregnant[9] and the accused was held liable for causing miscarriage[10], an act done with intent to prevent a child from being born alive or to cause it to die after birth[11], causing the death of a quick unborn child by act amounting to culpable homicide[12].
s and with fine[8]. An unmarried woman who is pregnant because of her illicit relationship and the miscarriage was caused to wipe out evidence of deceased being pregnant[9] and the accused was held liable for causing miscarriage[10], an act done with intent to prevent a child from being born alive or to cause it to die after birth[11], causing the death of a quick unborn child by act amounting to culpable homicide[12].
Causing miscarriage to a woman without her consent or create a situation in which she was out of option except to abortion[13], then also the person who made the woman to left with no other option except for abortion; will lead to imprisonment for a term of 10 years and fine[14].
Whoever does any act with the intent to cause miscarriage to a woman without her knowledge or consent, will fetch punishment for a term which may extend to 10 years and also be liable to fine[15]. Karnataka High Court had punished a husband (accused) with 5 years of Rigorous Imprisonment who made extra-judicial confessions to three persons to the effect that the death took place during an abortion and the circumstantial evidence shows beyond reasonable doubts[16].
3. THE MEDICAL TERMINATION of PREGNANCY Act, 1971:
The possibility of a changed law of premature birth was first mooted by the Central Planning Board of the Government of India is 1964 as a family arranging measure[17]. The Government of India in 1964 established the Shanti Lal Shah advisory group to propose measures for change in the current law of fetus removal. The suggestions of the Committee were acknowledged and the MTPA was passed in 1971 and came into procedure on first April 1972. To dodge the abuse of instigated premature birth and to mollify the rigors of the law of fetus removal contained in the Indian Penal Code, the Medical Termination of Pregnancy Act, 1971 was passed. It is a little Act comprising of just eight areas. This authorization has been hailed as a significant milestone in India’s social enactment and a broad measure guaranteeing the ladies in India opportunity from undesirable and undesirable pregnancies. The Medical Termination of Pregnancy Act, 1971, furnishes ladies with a lawful arrangement to premature birth. It gives that a pregnancy might be ended where the length of the pregnancy doesn’t surpass 24 weeks[18], if at least two clinical practitioners[19] are of the assessment that the duration of the pregnancy would include a hazard to the life of a pregnant lady or a grave physical issue to her physical or emotional wellness [as per Section 3(2)(i)] or when there is a significant hazard that if the kid were conceived, it would experience the ill effects of such physical or mental anomalies as to be truly crippled [as per Section 3(2)(ii)]. It tends to be pregnancy either through assault or where a pregnancy happens are a consequence of disappointment of any gadget or strategy utilized by any wedded lady or her significantother to constrain the quantity of children[20].
4. Analysis:
The consent given by the state for the Abortion if where the life of a lady is at serious risk or if the youngster conceived will have genuine well being or mental issues, this guarantee safe end of pregnancy. This is the one more advance towards granting equivalent rights to a lady and breaking the previously existing man-centric forbidden in the lower level of Indian culture.
Premature birth laws don’t advocate fetus removal as a family arranging measure. Or maybe, it supports the advancement of family arrangin
g administrations to forestall undesirable pregnancies and simultaneously perceives the significance of giving protected, moderate, open and satisfactory fetus removal administrations to women who need to end a bothersome pregnancy.
g administrations to forestall undesirable pregnancies and simultaneously perceives the significance of giving protected, moderate, open and satisfactory fetus removal administrations to women who need to end a bothersome pregnancy.
ACKNOWLEDGMENT:
I would like to express my special thanks and gratitude to my family for always being there for me to support in hard & good times, encourage me to do more productive for my better performance in academics.
REFERENCES:
[1] Governor-General Lord William Bentinck.
[5] Ibid.
[6] Ibid. The limit from 20 to 24 weeks has been extended by the Union Cabinet in January 2020, declared by the Union Minister Prakash Javadekar.
[7] Section 52 of IPC: Good Faith: nothing is said to be done or believe in “good faith” which is done or believed without due care and attention. Book: Ratanlal & Dhirajlal, The Indian Penal Code, 36th Edition, 2019, Lexis Nexis publication.
[8] Section 312 of IPC: Causing Miscarriage. Book: Ratanlal & Dhirajlal, The Indian Penal Code, 36th Edition, 2019, Lexis Nexis publication.
[10] Section 312 of IPC. Book: Ratanlal & Dhirajlal, The Indian Penal Code, 36th Edition, 2019, Lexis Nexis publication.
[11] Section 315 of IPC. Book: Ratanlal & Dhirajlal, The Indian Penal Code, 36th Edition, 2019, Lexis Nexis publication.
[12] Section 316 of IPC. Book: Ratanlal & Dhirajlal, The Indian Penal Code, 36th Edition, 2019, Lexis Nexis publication.
[13] Tulsi Devi v. State of UP, 1996 Cr. LJ 940 (All).
[14] Section 313 of IPC: Causing Miscarriage without Woman’s Consent. Book: Ratanlal & Dhirajlal, The Indian Penal Code, 36th Edition, 2019, Lexis Nexis publication.
[15] Section 314 of IPC: death caused by act done with intent to cause miscarriage. Book: Ratanlal & Dhirajlal, The Indian Penal Code, 36th Edition, 2019, Lexis Nexis publication.
[16] Moidan Sab v. the State of Karnataka, 1993 Cr. LJ. 1430 (Kant).
[17] Amar Jesani, and Aditi Iyer, “Women and Abortion”, 27 Economic and Political Weekly (1993).
[20] Explanation 1: where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2: where any pregnancy occurs as a result of the failure of any device or method used by any married woman or her husband to limit the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.