JAMIA MILLIA ISLAMIA

OFFENCE RELATED TO MISCARRIAGE

SUBMITTED BY: SUBMITTED TO:

VISHAL JAIN DR. SAMIA KHAN

ROLL NO.-71
20185175
BA LLB(HONS) 3rd SEM
 INDEX

S. No. TOPIC

1. Acknowledgement

2. Introduction

3. Meaning of Abortion

4. Legal Status

5. Miscarriage in context of INDIAN laws

6. Case laws

7. Conclusion

8. Bibliography
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my faculty DR. SAMIA KHAN who gave me the
golden opportunity to do this wonderful project on the topic OFFENCE RELATED TO
MISCARRIAGE, which also helped me in doing a lot of Research and i came to know about so many
new things I am really thankful to them.
 INTRODUCTION
Miscarriage means the premature expulsion of the child or foetus from the mother’s womb at
any period of pregnancy before the term of gestation is completed. Sections from 312 to 318
of Chapter-XVI in the Indian Penal Code, 1860 explain the provisions about “Offences of the
causing of Miscarriage, of Injuries to Unborn Children of the Exposure of Infants, and of the
Concealment of Births”. These provisions are intended to prevent the illegal abortions,
injuries against unborn children, etc. Section 312 of the Code says that whoever voluntarily
causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith
for the purpose of saving 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 be quick with child, shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall be also liable to fine. A woman, who causes
her to miscarry, is within the meaning of this Section.
Section 312 of the Code says that whoever voluntarily causes a woman with child to
miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving 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 be quick with child, shall be
punished with imprisonment of either description for a term which may extend to seven
years, and shall be also liable to fine. A woman, who causes her to miscarry, is within the
meaning of this Section.

A miscarriage, technically, is the definition of loss of pregnancy between fourteen weeks up

to a period of viability of the foetus which used to be taken as twenty eight weeks but which
is increasingly coming down because we can now keep babies alive from about twenty four
week's gestation onwards. The medical term 'abortion' means the pre-mature ending of a
pregnancy before the foetus or baby is viable- that can happen spontaneously and, in general,
we refer that as 'miscarriage'- but that whatever there is a medical condition that necessitates
that the pregnancy needs to be ended before the foetus is viable, that is what is considered an
abortion.
MEANING OF ABORTION
Abortion generally refers to the expulsion from the uterus of the product of conception.
According to Webster's New International Dictionary 'abortion' means an act of giving
premature birth. The word abortion has been derived from a Latin term 'abortus' means an
object which had been detached from its proper site, means an act of giving pre-mature birth,
especially the expulsion of human foetus pre-maturely at any time before it is viable or
capable of sustaining life.' There have been a lot of discussions as to a definition of the word
abortion. Though there are various dictionary definitions of the word but what the vast
majority of people in world wide understand when one refers to abortion is the direct and
intentional killing, by what ever means, of an unborn child at whatever stage of his or her
development from conception upto birth and including birth. At the moment of birth, the
killing of the child is called partial birth abortion. After birth the killing of the child is called
infanticide.1
Abortion may be classified into two categories depending upon the nature and circumstances
under which it occurs :
(a) Spontaneous, which is technically referred to miscarriage, and
(b) Induced, which means voluntary miscarriage.
Falling under the first category is not punishable, while induced abortion constitutes a
criminal offence under Section 312 to 316 of the Indian Penal Code. Out of almost 35
million abortions which take place annually in the world, more than half of them are illegal
and performed by untrained, unskilled persons and done under highly unhygienic conditions.
Abortion generally refers to the expulsion from the uterus of the product of conception.
According to Webster's New International Dictionary 'abortion' means an act of giving
premature birth. The word abortion has been derived from a Latin term 'abortus' means an
object which had been detached from its proper site, means an act of giving pre-mature birth,
especially the expulsion of human foetus pre-maturely at any time before it is viable or
capable of sustaining life.'

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KD GAUR, Indian Textbook on Indian Penal Code
LEGAL STATUS OF ABORTION
PRE 1971”

The Indian Penal Code, enacted in 1860 and written in accordance with contemporaneous
British Law, declared induced abortion illegal. Induced abortion was defined as purposely
"causing miscarriage". The penalty for abortion practitioners was either three years in prison,
or a fine, or both; for the woman availing of an abortion, the penalty was either seven years
in prison, or a fine, or both. The only exception was when abortion was induced in order to
save the life of the woman.
The prevalence of illegal abortions, combined with the idea that abortion could be a mode of
population control, caused the government to reconsider the law. In 1964, the Central Family
Planning Board of the government of India met and formed a committee to examine the
subject of abortion from the medical, legal, social, and moral standpoints. The abortion study
committee, headed by Mr. Shantilal Shah (Health Minister of Maharashtra) submitted its
report in December 1966. This report suggested that the penal code was too restrictive and
recommended that the exemptions under which abortion was permissible be increased and
liberalised. Many of the report's suggestions were included in the subsequent Medical
Termination of Pregnancy (MTP) Act.

POST 1971:
The Indian abortion laws fall under the Medical Termination of Pregnancy (MTP) Act, which
was enacted by the Indian Parliament in the year 1971 with the intention of reducing the
incidence of illegal abortion and consequent maternal mortality and morbidity. The MTP Act
came into effect from 1 April 1972 and was amended in the years 1975 and 2002.

Pregnancies not exceeding 12 weeks may be terminated based on a single opinion formed in
good faith. In case of pregnancies exceeding 12 weeks but less than 20 weeks, termination
needs opinion of two doctors. The Medical Termination of Pregnancy (MTP) Act of India
clearly states the conditions under which a pregnancy can be ended or aborted, the persons
who are qualified to conduct the abortion and the place of implementation. Some of these
qualifications are as follows:
• Women whose physical and/or mental health were endangered by the pregnancy
• Women facing the birth of a potentially handicapped or malformed child
 • Rape
• Pregnancies in unmarried girls under the age of eighteen with the consent of a
guardian
• Pregnancies in "lunatics" with the consent of a guardian
• Pregnancies that are a result of failure in sterilisation
• Conducting or associating or helping to conduct Pre-Natal Diagnostic tests for
determining the sex of the foetus.
• Sex selection on a woman or a man or both on any tissue, embryo, conceptus fluid
or gametes derived from either or both of them.2

MISCARRIAGE LAW IN INDIA

The provisions regarding abortion in the Indian Penal Code were enacted more than a century
ago and were in conformity with the English law at that time.' In India, beginning in 1861,
abortion, except to save the life of the mother, became illegal regardless of whether or not the
foetus had attained the viability, i.e., capacity to live independently outside the mother's
womb. The Indian Penal Code uses the expression "causing miscarriage" to denote abortion.
Miscarriage technically refers to spontaneous abortion, whereas "voluntarily causing
miscarriage" (induced abortion) which forms the offence under the Indian Penal Code, 1860'
stands for criminal abortion. The law of the land has always held human life to be sacred and
the protection that the law gives to human life it extends also to the unborn child in the
mother's womb. The unborn child must not be destroyed unless it is for the purpose of
preserving the yet more precious life of the mother. Mother's life is more precious than of the
unborn child because she is the originator of the foetus and her life is well established. The
mother has with duties and responsibilities and allowing the mother to die would also kill the
foetus in most cases. Keeping this in view the code has designated causing miscarriage
(induced abortion) a serious offence, and made both causing miscarriage "with the consent"
or "without the consent" of the women punishable under section 312 and 313 of the Indian
Penal Code 1860, respectively. However, to attract the provisions of section 312 of the
Indian Penal Code two essential elements must be satisfied, (i) Miscarriage should have been
caused voluntarily; and (ii) Miscarriage should not have been caused in good faith for the
purpose of saving the life of the woman. According to section 312' of the Indian Penal Code,

2
P.S.A Pillai’s On Criminal Law
as it stood before the Medical Termination of Pregnancy Act, 1971, voluntarily causing a
woman with child to miscarry was punishable with imprisonment of up to three years and, if
the woman was quick with child, the imprisonment of up to seven years, unless the abortion
was done in good faith to preserve the life of the mother. The offender could be the woman
herself or any other person. Thus, this section 312 of the IPC [Indian Penal Code] deals with
causing of miscarriage with the consent of the woman. The saving grace of the offence, in the
section, is good faith and life saving necessity. This offence of foeticide may be committed
with or without the consent of the woman.
The Indian Penal Code under Sections 312, defines the offence of 'causing miscarriage' as
follows "whoever voluntarily causes a woman with child to miscarry shall, if such
miscarriage be not caused in good faith for the purpose of saving the life of the woman, be
punished with imprisonment of either description for a term which may extend to 3 years, or
with fine, or with both; and, if the woman be quick with child, shall be punished with
imprisonment of either description for a term which may extend to 7 years, and shall also be
liable to fine.
Explanation: a woman, who causes herself to miscarry, is within the meaning of this section.
The framers of the Code have not used the word 'abortion', in Section 312, which relates to an
unlawful termination of pregnancy. This section speaks of 'miscarriage' only, which is not
been defined in the Code. However, miscarriage, in its popular sense, is synonymous to
abortion and consists in the expulsion of the embryo-foetus at any time before it reaches full
growth.
 Section 312 – Causing miscarriage
 Section 313 – Causing miscarriage without woman’s consent
 Section 314 – Death caused by act done with intent to cause miscarriage. If act done
without woman’s consent.
 Section 315 – Act done with intent to prevent child being born alive or to cause it to
die after birth.
 Section 316 – Causing death of quick unborn child by act amounting to culpable
homicide.
 Section 317 – Exposure and abandonment of child under 12 years, by parent or
person having care of it.
  Section 318 – Concealment of birth by secret disposal of dead body.3

ROLE OF CONSENT IN ABORTION

Section 3(4) of MTP Act clarifies as to whose consent would be necessary for termination of
pregnancy
(A) No pregnancy of a woman, who has not attained the age of 18 years, or who having
attained the age of 18 years, is a lunatic, shall be terminated except with the consent in
writing of her guardian.
(B) Save as otherwise provided in clause (A), no pregnancy shall be terminated except with
the consent of the pregnant woman.
It is important to note, in this section, that the consent of the woman is the essential factor for
termination of her pregnancy. The husband's consent is irrelevant. Therefore, if the woman
wants an abortion but her husband's objects to it, the abortion can still be done. However, if
the woman does not wants an abortion but her husband wants, it cannot be done. However,
the consent of the guardians is needed in the case of minors or lunatics.

WHEN A PREGNANCY CAN BE TERMINATED?

The MTP Act, 1971 under Section 4, specifies the place where a pregnancy can be
terminated. It stipulates that an operation must take place in either "a hospital established or
maintained by the government" or in "a place which has been approved for the purpose of
this Act by the government." However exceptions are made for emergencies.
Under Section 5(1), a doctor may terminate a pregnancy if it is "immediately necessary to
save the life of the pregnant woman". In such situations, the requisites relating to the length
of pregnancy, the need for two medical opinions and the venue for operation do not apply.
However, it needs to be pointed out that one aspect of this emergency clause tends to restricts
rather than liberalize the old law. Section 312 of the IPC permitted abortions by anyone with
the object of saving the life of the mother, but under MTPA only a doctor can terminate the
pregnancy.

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W/P © no. 593 of 2016 at http://supremecourtofindia.nic.in/FileServer.pdf
IMPORTANT CASE LAWS:

ABORTION WITHOUT THE CONSENT OF MOTHER

 Shri Bhagwan Katariya And Others vs State Of M.P.

The woman was married to Navneet. Applicants are younger brothers of said Navneet while
Bhagwan Katariya was the father of said Navneet. After the complainant conceived
pregnancy, the husband and the other family members took an exception to it, took her for
abortion and without her consent got the abortion done.
The Court opined that if we refer Section 3 of the Medical Termination of Pregnancy Act,
1971, a doctor is entitled to terminate the pregnancy under particular circumstances and if the
pregnancy was terminated in accordance with the provisions of law, it must be presumed that
without the consent of the woman it could not be done. Present is a case where a permanent
scar has been carved on the heart and soul of the woman by depriving her of her child. And
the Doctor will be liable.
Thus, the case laws show that a woman has an absolute right to abortion and no one can take
away this right from her. The Judiciary has been playing a vital role in securing these rights
to women. Right to abortion is a fundamental right of privacy.4
Psychological or mental trauma:

 D. Rajeswari vs State Of Tamil Nadu And Others-

This case, is of an unmarried girl of 18 years who is praying for issue of a direction to
terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted
pregnancy of the child of three months made her to become mentally ill and the continuance
of pregnancy has caused great anguish in her mind, which would result in a grave injury to
her mental health, since the pregnancy was caused by rape. The Court granted the permission
to terminate the pregnancy.

 Dr. Nisha Malviya And Anr. vs State Of M.P

The accused had committed rape on minor girl aged about 12 years and made her pregnant.
The allegations are that two other co-accused took this girl, and they terminated her
pregnancy. So the charge on them is firstly causing miscarriage without consent of girl. The
Court held all the three accused guilty of termination of pregnancy which was not consented

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(2004) 3 CALLT 609 HC
by the mother or the girl.5
 Murari Mohan Koley vs The State And Anr.
In this case, a woman wanted to have abortion on the ground that she has a 6 months old
daughter. She approached the petitioner for an abortion. And the petitioner agreed to it for a
consideration. But somehow the condition of the woman worsened in the hospital and she
was shifted to another hospital. But it resulted in her death. The abortion was not done. The
petitioner who was a registered medical practitioner had to establish that his action was done
in good faith (includes omission as well) so that he can get exemption from any criminal
liability under Section 3 of the MTP Act, 1971.
Abortion without mothers consent:

 Ms X vs Union of India (2016)

The Supreme Court allowed a rape victim based in Mumbai to abort her 24-week-old
abnormal foetus after the Centre clarified that a 20-week cap on termination of pregnancy is
not applicable if the pregnant woman’s life is found to be in grave danger. At the hearing, a
Bench of Justices J.S. Khehar and Arun Mishra perused a confidential medical report on the
condition of the woman, identified as only ‘Ms. X’, filed by a team of doctors at the
K.E.M. Hospital.
In the medical report, Justice Khehar read out the findings where the doctors had concluded
that the pregnancy was 23 to 24 weeks old. It said that continuance of the pregnancy would
involve “grave danger” to the life of the pregnant woman.
It was held that though The Medical Termination of Pregnancy Act, 1971 mandates against
abortion after pregnancy crosses the 20-week threshold, there are exceptions.

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2001(4) MPHT 20 CG
 CONCLUSION

The laws of India do not permit causing miscarriage (i.e abortion). The Medical
Termination of Pregnancy Act, 1971 (MTP) Act, which prohibits abortion, was enacted
with a view towards containing the size of the family. However, in some cases the desire
for a small family may have outweighed the desire for a child of a specific gender, leading
to abortions where the sex of the fetus was different from that desired by the family. The
MTP Act stipulated that an abortion may lawfully be done in qualified circumstances. But
the unscrupulous connived to misuse the law to have abortions conducted for the purpose
of sex selection. Later, innovative technologies made sex easier, and without the
regulations to control the use of such technologies, these technologies began to be misused
for sex-selective abortions. These actions necessitated enactment of the Pre-natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT) in 1994.
 BIBLIOGRAPHY

Books/ Statutes:
1. Gaur, K.D., Text book on the Indian Penal Code, Universal publication ltd., 4th
edition 2009
2. The Medical Termination of Pregnancy Act, 1971.
3. The Indian Penal Code, 1860.
4. The Constitution of India, 1950.
5. Shaw S.P., Laws of Child in India, 2001 edition, Allia Law Agency.
6. Rao Mamta, Law Relating to Women and Children (2010), EBC.

Articles/ Websites:
1. International Consortium for Medical Abortion, http://m.icma.md/country/IN/
2. Ministry of Health and Family Welfare, Government of India,
3. http://www.lawyersclubindia.com/articles/Abortion-violation-of-right-to- lifeagainst-
an-unborn-4092.asp

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