Causing Miscarriage and Injuries to the Unborn with Relevant Case Laws

This article explains miscarriage as an offense mentioned in the Indian Penal Code. Questions like what is miscarriage and how is it different from abortion have been explained. The various sections about causing miscarriage and injuries to the unborn child have been explained in detail. Miscarriage and abortion are women related offenses that are in much debate all over the world. Should Medical Termination of Pregnancy be allowed for the older foetus or not, especially in cases of crimes against women is also a much-debated question. This article briefly touches upon these topics with the help of appropriate case laws.

Introduction

Miscarriage is the spontaneous loss of a foetus before the 20th week of pregnancy[1]. Miscarriage in women can be a source of much grief and pain and therefore a physically and emotionally draining experience. Although miscarriage can be caused due to several reasons including excessive alcohol and drug use, hormonal issues, illnesses, and sometimes genes of the parents, miscarriage caused to a woman voluntarily to harm her or her unborn child can be an especially difficult experience for the victim. In such cases, the Indian Penal Code provides provisions for punishing said crime under sections 312 to 316 of the Code. Section 312 of the Indian Penal Code clearly states that:

“Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage is not caused in good faith to save the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman is quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” [2]

This offense is recognizable by the Court of Sessions as non-bailable, non-compoundable, and triable.

Explanation:

The essential elements of this section are:

  •  The miscarriage must be voluntarily caused (with the consent of the woman), even if it is done by the woman herself;
  • and it must not be caused in good faith.

The punishment for this crime is 3 years imprisonment, or 7 years in case of a woman being ‘quick with child’, that is, in an advanced stage of pregnancy.

In the case of Ademma (1886), ‘woman with child’ as contained in this section was explained as; where a woman caused herself to miscarry because she was only one month pregnant and there was nothing that had been formed as a child or foetus, the acquittal of the woman was considered bad in law.

In Akhil Kumar v. the State of MP, a woman was pregnant of 24 weeks due to illicit relations with a man and the doctor administered her an injection to terminate the pregnancy. The woman died the next day without miscarriage. The doctor was held liable for ‘voluntarily causing miscarriage’ within the meaning of this section as it was presumed that he knew the effects of the medicine.

In contrast to section 312, section 313 talks about voluntarily causing miscarriage as in the previous section but without the consent of the woman. In this case, keeping in mind the physical and psychological trauma to the victim, the punishment given is 10 years and fine. Where a woman kicked a pregnant lady in the abdomen causing her to miscarry, she alone was convicted of the crime as the woman did not consent to the miscarriage. [3]

Difference between Medical Termination of Pregnancy and Miscarriage

Medical Termination of Pregnancy or simply abortion is allowed under the MTP Act, 1971 by registered medical practitioners where there is a substantial risk to the mental or physical health and wellbeing of the pregnant woman or unborn child. Grave injury to the woman is presumed in the case of rape survivors, faulty contraceptives in married women, and cases of sexual assault. Medical Termination of pregnancy is artificially done and is allowed within 3 months of pregnancy. After this termination of pregnancy becomes riskier over time. However, miscarriage may be of two types- Natural and through human interference. Nearly 20 to 30 percent of all pregnancies end up in miscarriage. This could be due to several underlying causes; social, hormonal, and environmental et al. The court can only interfere if the miscarriage was caused through human intervention.

Even if they attempt to cause miscarriage is unsuccessful, persons can be punished for an attempt to cause miscarriage under section 511 of IPC. Attempt defies any exact definition, therefore what constitutes an attempt is decided by the court of law.  

“The Union Cabinet modified the 1971 Medical Termination of Pregnancy (MTP) Act in late January 2020, which requires women to pursue abortions as part of reproductive rights and gender equity. The amendment extended MTP’s upper limit for women from 20 to 24 weeks, including rape survivors, victims of incest, adults, and minors of varying capacities. Failure of contraception is also accepted and MTP is now open to “any woman or her partner” replacing the old rule for “only married woman or her husband.” The new legislation is forward-thinking, empathetic, and looks at a very complex topic with a human face.”[4]

Section 314 of the Indian Penal Code talks about doing an act that causes death to the woman with a child intending to cause miscarriage to the woman. The offender needs not to know whether the act is likely to cause death or not, however, intention to cause miscarriage is a must. If the act is done with the consent of the woman, the punishment is for a term that may extend to 10 years along with a fine. However, if the act was done without the consent of the woman, the maximum punishment is life imprisonment. In Vatchhalabai Maruti Kshirsagar v. the State of Maharashtra, a nurse did an attempt to cause miscarriage to a pregnant lady but was not successful. Two days later, the accused attempted to cause her miscarriage and succeeded. After a week the condition of the girl became serious and she was hospitalized and died of septicemia due to ruptures in the vagina. It could not be proved that the ruptures were at the hands of the accused and therefore he was not convicted under section 314.

Injuries to the Unborn Child

Under Section 315 of IPC, act done to prevent the child from being born alive, causing its stillbirth or causing it to die after birth (without good faith) is punished with imprisonment up to 10 yrs. or fine or both. Collecting evidence to prove that the act was done with any ill intent or the woman’s allegations are true, must be supported. The intention is an important ingredient in Section 315 that cannot be overlooked. The crime committed under this section is of the foeticide of a fully developed fetus, in case the child is killed before birth, or infanticide immediately after birth when death is caused. The distinction between infanticide and foeticide is small but significant in theory, while in consequences it is substantial. The former is conducted after delivery but may amount to murders and the latter, when the child is still in the womb, before delivery. The crime may be identified, is not bailable, is not compoundable, and triable by the session court.

In contrast to section 315, section 316 of IPC gives punishment that may extend to 10 years to a person guilty of culpable homicide who by such act causes the death of a quick unborn child (QC).

The distinction between murder and culpable homicide is just a “murder motive.” The perpetrator must have a motive in Culpable Homicide to inflict such bodily harm that is likely to cause death. In murder, the accused must recognize that in the “ordinary course of nature to cause death” his acts will cause death or bodily harm. In Murugan v. State of Tamil Nadu, the accused caused her wife to die by striking her while she was 20 months pregnant with a child. After 12 weeks of conception, the foetus gained life. He was convicted under section 316 of IPC.

Conclusion

The offense of miscarriage is a crime under the Indian Penal Code, 1860. When a miscarriage is caused voluntarily by a person wanting to harm a pregnant woman or child, a mishap in such a case can cause severe trauma to the woman. The number of crimes against women in India is high, therefore precautions have to be taken to make sure that a woman with a child is not mistreated by her in-laws, husband, relatives, or any member of the society. Due to this, the punishment for causing a miscarriage is high. In contrast, there is much debate around the world on whether abortion is a female’s right or if it should be illegal. Though pro and anti-choice candidates differ in their statement about morals, everyone agrees that women have a right to reproductive healthcare. The system must support women, and their rights as members of society should be respected.

Frequently Asked Questions

  • Which sections of IPC, 1860 cover miscarriage?
    • Section 312-318 of IPC covers the crime of Miscarriage.
  • How often do miscarriages occur and why?
    • Miscarriages unfortunately occur often and their causes can be many. Therefore, it not preventable.
  • Are miscarriage and abortion the same?
    • No, miscarriages are mostly involuntary and caused due to natural reasons. In contrast, abortion is voluntary.
  • When does miscarriage take place?
    • Miscarriage often occurs in the first three months of pregnancy. The first 12 weeks is when the probability of miscarriage is high.

References


  • [1]Pregnancy Loss (Before 20 weeks of Pregnancy), NIH, https://www.nichd.nih.gov/health/topics/pregnancyloss#:~:text=Pregnancy%20loss%20occurs%20when%20a,pregnancy%20loss%22%20throughout%20this%20information.
  • [2] Indian Penal Code, 1860, Section 312.
  • [3]Tulsi devi v. State of UP (1996) CriLJ 940.
  • [4] Chitra Subramaniam, India’s New Abortion law is progressive and has a human face, (March 7, 2020), https://www.orfonline.org/expert-speak/india-new-abortion-law-progressive-human-face-62023/.

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