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Miscarriage: Meaning, Validity, Exceptions, Attempt & Abetment

 This topic talks about the sections governing the offence of miscarriage. It explains the
validity of consent, as in whether the aspect of consent would make any difference or not.
The elements of the offence of miscarriage i.e., voluntary act or intentional act, what acts
can be called as miscarriage as the definition of miscarriage is not provided, the
difference between the terms woman with child and woman with a quick child is
explained in detail.
 Further, the aspect of intention, where is required and where it is immaterial is also
explained. What can be an exception when an offence of miscarriage is committed which
are not unlawful and not punishable under law. The attempt and abetment of the offence
of miscarriage is also dealt in brief to explain the application of the law given in penal
code.
 Miscarriage is an offence under Indian Penal Code, and is one of the offence covered
under the category of “Offences Relating to Children”.

I. Is causing miscarriage a crime: with consent or without consent ?

The miscarriage either caused to a woman with consent or without consent is treated as an
offence as it is a chapter concerning the children and not specifically the mother. Hence, even
though the mother consents, miscarriage is illegal in the eyes of law.

“Section. 312. Causing miscarriage:

 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
also be liable to fine
 Explanation: A woman who causes herself to miscarry, is within the meaning of this
section”

“Section. 313. Causing miscarriage without woman’s consent:

 Whoever commits the offence defined in the last preceding section without the consent
of the woman, whether the woman is quick with child or not, shall be punished with
imprisonment for life, or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine”

“Section.314. Death caused by act done with intent to cause miscarriage:

 Whoever, with intent to cause the miscarriage of a woman with child, does any act which
causes the death of such woman, shall bepunished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine; if
act done without woman’s consent.—and if the act is done without the consent of the
woman, shall be punished either with imprisonment for life, or with the punishment
above mentioned
 Explanation—It is not essential to this offence that the offender should know that the act
is likely to cause death”
 Section 312 to 314 are related to the offence of miscarriage, dealing from miscarriage
with consent to the death of the victim while attempting to miscarriage. All the above
made punishable under these sections.

II. Consent: does it make any difference ?

 Though section 312 does not explicitly mention the consent of the women to be present.
But it is made evident from the inclusion of a separate section 313, wherein the consent
of the woman is absent. This makes us clear that section 312 talks about miscarriage with
the consent of the woman.
 So, the person causing miscarriage along with the woman consenting that miscarriage
will be criminally liable for causing a miscarriage of the unborn child she is carrying.
But when the miscarriage is caused without consent, then section 313 will be applicable
and the woman who did not consent for miscarriage of the unborn child she is carrying is
not made criminally liable.
 Only the perpetrators are made liable. Further, the punishment under section 312 is for a
lesser term when compared to section 313.

III. Act must be voluntary: not an act of good faith :

The act of causing miscarriage must be “voluntary” as per the requirement of the law and must
not be an act done in “good faith”. As the law requires the criminality aspect in the act of
miscarriage committed. Now, what is “voluntary” depends upon its definition given in section 39
of the code.

“Sec.39 “Voluntarily”: A person is said to cause an effect “voluntarily” when he causes it by


means whereby he intended to cause it, or by means which, at the time of employing those
means, he knew or had reason to believe to be likely to cause it”

Hence, the section makes it an essential ingredient i.e., presence of “mens rea” to commit the
miscarriage offence.

That is the reason why the word voluntary was added and the aspect “bonafide intention” is to be
excluded.

IV. Difference between “woman with child” and “woman with quick child”

 The act has mentioned two different terms i.e., “woman with child” and “woman with
quick child” what do they mean and what is the difference between the two is not
provided in the section.
 These two terms are different and one means a woman who is pregnant, but the one
whose period of pregnancy has just started and is still in the gestation period. Whereas
the term woman with a quick child means a woman who is in the advanced stage of her
period of pregnancy and the foetus has some movement i.e. the embryo has taken the
form of a foetus which is said to be having some form of life in it. This crime committed
at this stage is much graver when compared to the above form.
 The fact of this difference is important for the relevant application of the law. Also, the
fact that whether a woman was pregnant or not is also important as the law does not
punish otherwise. For suppose a woman who assumes that she is pregnant and undergoes
an abortive method to remove the pregnancy is not punishable under the law.

V. Miscarriage: What act can be called as a miscarriage ?

 The term “miscarriage” is not defined anywhere in the code, though it is treated as an
offence under the same code. The word is often synonymously used to word “abortion”,
which is neither defined in penal code nor in medical termination act. This act governs
the termination of pregnancy but never uses the term abortion. The distinction of the
same has been discussed in the case of Re Malayara Seethu.
 It has been explained as- “Legally, miscarriage means the premature expulsion of the
product of conception, an ovum or a foetus, from the uterus, at any period before the full
term is reached.
 Medically, three distinct terms, viz., abortion, miscarriage and premature labour are used
to denote the expulsion of a foetus at different stages of gestation. Thus, the term,
abortion, is used only when an ovum is expelled within the first three months of
pregnancy before the placenta is formed.
 Miscarriage is used when a foetus is expelled from the fourth to the seventh month of
gestation, before it is viable, while premature labour is the delivery of a viable child
possibly capable of being reared before it has become fully mature”.

Death caused while committing the act of miscarriage: Is mens rea required?

 Section 314 is made to hold any person criminally liable for committing miscarriage and
meanwhile causes the death of the woman who is expectant with pregnancy.
 Here, the person committing miscarriage need not have the intention to cause death and
still is liable for her death.
 This section provides much harsh punishment when compared to other sections when the
death is caused to a woman who did not consent for the miscarriage or whose consent is
absent. The law requires the fact of committing miscarriage to be proved as well as that
there is direct nexus between result of his act and the death of that woman. If the link is
too remote then the court will not accept the charge of this section against the accused.
 Hence, the facts relating to the act done by the accused leading to a result i.e., death
which is proximate enough to satisfy the court, must be proved for the application of this
above section.

VI. Exception: What cannot be called as an offence of miscarriage ?

1. Good Faith :

 The section provides for an exception saying that “it should not be done in good faith”, as
the law will not punish someone who commits the offence of miscarriage without mens
rea.
 So, if someone causes miscarriage in order to save the woman from any danger to her
life.

Case :

 In the case of State of Maharashtra v. Flora Santuno Kutino (2007) Cr LJ 2233


(Bom), where the accused, who caused the pregnancy to a woman with whom he had an
illicit relationship and due to which she died, pleaded the exception of good faith.
 The court refused saying that, miscarriage was caused not due to danger to her life but to
swipe off the illicit relationship they had. This is not treated as good faith, hence
convicted.

2. As per the law: “Medical Termination of Pregnancy Act, 1971”

 The law provides for an act to govern the legal termination of pregnancy.
 In the cases like rape, uninvited pregnancy which could effect the mental and physical
health of the woman badly or will lead to abnormalities to foetus or woman, would be a
valid cause to undergo a termination of pregnancy.
 Further termination caused by any means by a medical professional as governed by this is
treated as legal if the guidelines and limitations of the act are taken into consideration and
are followed with diligence.
 Thus, under any valid cause of the woman undergoing termination of pregnancy or the
anyone causes termination to protect the woman’s life the act will help it to be under the
legal confines and will not be a crime under the Indian Penal Code.

VII. Attempt of miscarriage: a diversified opinion of the court of law

 In the case of Munah Binti Ali v. Public Prosecutor, (1958) 24 Malayan Law
Journal 159(CA) where a woman was attempting to abort another woman and the same
was complained by the victim saying that she tried to abort her. but the accused raised a
contention that the victim was never pregnant and hence this is an impossible task to
achieve and should be considered merely preparation.
 The court rejected the contention and convicted her of that offence by considering the
illustrations of section 511.
 And said that the attempt made by the accused may not have been accomplished but that
was because the non-existence has frustrated the accomplishment otherwise the same
would have become successful which was also the exact communication made by the
illustrations.
 Although the above case explicitly deals with the ambit of section 511, it can also be
dealt with under the offences relating to miscarriage, as it involves the case of an attempt
to abort a woman.
 The above case is contradictory when we take the aspect of pregnancy as the main issue.
 Thus, this case was seen as a diversified opinion where the woman has not consented and
the intention of causing miscarriage and some overt act done to achieve the intended
result was made punishable as an attempt to miscarriage although the woman was never
pregnant in the first place. Perhaps, this case cannot be treated as a general rule and can
be made applicable only under special circumstances.
VIII. Abetment of miscarriage:

 The abetment of the offence of miscarriage is also punishable under the penal code.
 In the case of Madan Raj Bhandari v. State Of Rajasthan AIR 1970 SC 436, the
accused had abetted the victim to undergo miscarriage of pregnancy which was a result of
their illicit relationship. The victim, later on, died due to improper way of causing
miscarriage. The court of law declared that the abettor of the miscarriage will also be
criminally liable, although the victim if alive would not be held liable.
 Further, if the co-accused, was not aware of the abetment of miscarriage being
committed by the main offender, is not proved to be an abettor and is held innocent.
 This fact will not make the main accused free of his offences. He was still made liable as
an abettor and as an offender for causing miscarriage and was convicted under section
314 read with section 109 of IPC.
 Thus, in case of abetment of miscarriage, where the accused had instigated the woman to
undergo miscarriage is innocent as the woman is been manipulated by the main offender
and is not aware of her decisions being made with her own will or not.

 In such cases, the main offender will be liable as an abettor as well as an offender of
miscarriage. Hence the case would be charged with the relevant section between 312 to
314 read with section 109 of the Indian Penal Code.