This article has been written by Sonali Khatri is an advocate based in Jaipur. She graduated from National Law University, Jodhpur with a specialization in Constitutional Law.

If you want to know about the position of the Indian law on the crime of miscarriage, then continue reading.

In this article, amongst others, following questions have been answered: when causing miscarriage of a pregnant woman is crime; what punishment is imposed in case the accused is found guilty; how the punishment is decided; what elements a complainant should disclose in her complaint and how can an accused save himself if charged for the commission of this crime.

Loss of pregnancy (a.k.a. miscarriage) can be physically and emotionally draining experience for a woman, especially when it happened because of certain individual/s. In such situations, the affected woman may want to file a case against those individual/s who were responsible for her miscarriage. Undoubtedly, such persons may be punished under the Indian Penal Code. However, it is important that an informed decision is taken while considering the question of initiating criminal proceedings in this situation. In order to help you do that, this article has been written.

First and foremost, you should know that causing miscarriage of a pregnant woman is a crime under the Indian Penal Code (IPC). Sections 312 to 314 of the IPC deal with this crime.  Secondly, these sections use the phrase ‘woman with child’. As ‘woman with child’ simply means a pregnant woman, I have used the phrase ‘pregnant woman’ in this article so that it’s easier to understand. 

With this, let’s now look at each of the fundamental issue likely to arise whenever you would consider instituting criminal proceedings for causing of miscarriage. 

When is ‘causing a miscarriage of a pregnant woman’ crime?

It is a crime when all the following facts occur:-

1. Miscarriage is voluntarily (willingly) caused and not as a result of any accident or mishap.

For instance, administering medicine to a pregnant woman, thereby causing her miscarriage.

1. The miscarriage was not caused in good faith (e. there was no thought of saving the life of the pregnant woman while causing the miscarriage).
2. The pregnant woman did not consent to the miscarriage.

For instance, when a pregnant woman visits a doctor for regular check-up, the doctor inserts a needle inside the abdomen of the lady (as a part of some test) leading to a septic and then a miscarriage. In this case, the woman never visited the doctor for causing of miscarriage but for the test. Yet, miscarriage is what she ultimately suffered. In this case, the woman can consider filing a complaint against the doctor under Section 313 of the IPC.

Issue of consent

There is another possibility. The pregnant woman herself may give consent to the causing of miscarriage. You may think why a pregnant woman would do that. But yes, it’s possible. For example, a pregnant woman, to get rid of the unborn girl child, may give consent to her miscarriage. In that case, the woman would also be punished under Section 312, together with the doctor causing such miscarriage.

At times, a woman may give consent to the miscarriage out of necessity. In such cases, the woman is generally not punished. For instance, if a pregnant woman is attacked/ assaulted by few persons, thereby resulting in such grave injury that the woman, against her desire, gives consent for miscarriage, then the woman is not likely to be punished. These types of cases are covered by Section 313 of the IPC.

To conclude, two types of situation are likely to arise whenever miscarriage has been caused to a pregnant woman: (a) the woman consented to the causing of miscarriage and (b) the woman did not consent to the same. The first situation would be governed by Section 312 of the IPC and the latter by Section 313.  

In addition to the above, there is another possibility. A pregnant woman may herself consents to the causing of miscarriage because the pregnancy is posing severe risk to her mental and physical health. However, such miscarriage would be a crime under the IPC (Section 312) because it is not caused for the purpose of saving the life of the pregnant woman. In fact, for this sort of miscarriage, both the pregnant woman and the doctor can be punished. In this situation, the pregnant woman can consider filing an application under the Medical Termination of Pregnancy Act, 1971 [MTP Act, 1971]. Under this Act, a pregnancy can be terminated when it poses severe risk on the physical and mental health of the pregnant woman.       

What is the punishment for the crime?

If the miscarriage was caused with the consent of the pregnant woman, then

1. Imprisonment which may extend to three years or fine or both OR
2. Imprisonment which may extend to seven years and fine if the woman is in advanced stage of pregnancy (this stage under the IPC is referred to as “woman being quick with child”.

If the miscarriage was caused without the consent of the pregnant woman, then

1. Imprisonment for life OR
2. Imprisonment which may extend to ten years and fine.

Who will be punished for the crime?

If the miscarriage was caused with the consent of the pregnant woman, then

1. The person causing the miscarriage AND
2. The pregnant woman.

If the miscarriage was caused without the consent of the pregnant woman, then

Only the person causing the miscarriage.

How is it decided which one of the above punishments would be applicable in a particular case?

The punishment imposed would depend upon the stage of pregnancy. If the pregnancy was in initial stage, then the lesser punishment is imposed (maximum three years with fine). On the other hand, higher punishment is imposed if the woman was in advanced stage of pregnancy (up to 7 years and fine).  

Note: the abovementioned punishment would be applicable in case of Section 312.

The punishment in case of Section 313 would depend upon the facts and circumstances of each case.

What elements should be disclosed by the Complainant while making a complaint under s/313?

1. The accused was aware of the fact that the woman was pregnant.
2. His/ her actions resulted in the miscarriage of the pregnant woman. The said actions were committed voluntarily by the accused.
3. S/he did not act in the said manner to save the life of the pregnant woman.
4. S/he did not act in good faith.
5. The pregnant woman did not consent to the causing of miscarriage.
6. That the woman miscarried in consequence of it.

How can the accused defend him/her if charged under Section 313?

1. S/he was unaware about the fact that the woman was pregnant.
2. The act which resulted in the commission of the crime was not done voluntarily.
3. The act which resulted in the commission of the crime was done in good faith.
4. The act was done to save the life of woman with child.
5. The pregnant woman also consented to the miscarriage. This argument may not completely absolve the accused from the liability. However, it can result in the imposition of lesser punishment upon him because of the application of Section 312 of IPC.

Note: In addition to the above, the accused can also take one more defense. S/he can contend that the case falls under the MTP Act, 1971. (Only if the complaint was filed under Section 312 of the IPC)

Is causing a miscarriage of a pregnant woman same as abortion or is there any difference between the two terms?

These two terms are different and cannot be used synonymously. The same is clear from Sections 312 to 314 of the IPC.  Nowhere do these sections use the term abortion. Rather they only use the phrase ‘causing of miscarriage’.  

Medically as well there is a difference between the two terms. The term ‘abortion’ is used only when an ovum is expelled within the first three months of pregnancy. On the other hand, ‘miscarriage’ is used when a fetus is expelled from the fourth to the seventh month of gestation, before it is viable.

Is it that in every case of miscarriage a criminal case can be filed?

No, that is not possible. There are two types of miscarriage: one is natural and another is induced by human interference. The courts can intervene only in the second case.

What if the person who intended to cause miscarriage was unsuccessful in his attempt? Can he be punished for attempting to cause miscarriage?

Yes, it is possible. S/He can be punished for his attempt to cause miscarriage under Section 511 of the IPC.

Is it a bailable offence?

Yes, it the complaint has been filed under Section 312 of the IPC. However, if the complaint was filed under Section 313 of the IPC, then the accused would not get the bail (the same being non-bailable offence).

Is it a compoundable offence?

No. Neither the offence under Section 312 nor the one under Section 313 is a compoundable offence.

Which court would try this offence?

In case of Section 312, the offence would be triable by a Magistrate of First Class. On the other hand, the Court of Sessions would try the offence committed under Section 313.

Is it a cognizable offence?

If the miscarriage was caused without the consent of the woman then the same is a cognizable offence. However, if the miscarriage was caused with the consent of the woman, then it is a non-cognizable offence.

Note: A cognizable offence is one where the accused can be arrested by the police without warrant.

What if the pregnant woman agreed to the miscarriage because of the pressure of in-laws? In such a situation, can she still be held responsible for commission of a crime?

In such a situation, the pregnant woman would not be held responsible for commission of a crime. The case would be covered by Section 313 of the IPC. It is very necessary that from the very beginning the pregnant woman takes the stance that the miscarriage was caused against her desire.

• Can the in-laws be punished?

Yes, they can be punished for this act but not necessarily under Sections 312 and 313 of the IPC.

What if the pregnant woman visited the doctor for a regular check-up, but because of the negligence of the doctor she lost her pregnancy?

In such a situation, the doctor can be punished under Section 313 of the IPC. Please note that you disclose and prove all the elements which are there in your complaint filed under Section 313. (The elements which should be there in your complaint have been discussed in the earlier part of this article).

What if the pregnant woman is a minor and she is not in a position to continue with the pregnancy. What can she do so that she is not punished under the IPC?

In that situation, the minor can take use of the Medical Termination of Pregnancy Act, 1971. This Act recognizes the fact that a pregnancy may pose severe physical and mental risk to a woman. Therefore, in those situations, pregnancy may be terminated subject to restrictions provided under this Act.

What if the pregnant woman has changed her mind and she does not want to continue with the pregnancy for reasons best known to her. What can she do in such a situation?

In such a situation, the woman should be careful about the law in IPC. The woman can also be punished for causing of miscarriage under the IPC if she has also consented to the same. The only exception is that the miscarriage was necessary to save the life of the pregnant woman. In case, you can prove the same through weighty evidence, you are good to go.

Otherwise, you can take the help of the MTP Act 1971 which permits termination of pregnancy if it poses severe risk to the physical and mental health of the woman. If you can prove at least this, you would be allowed by the court to terminate the pregnancy.

In my understanding, the second one is a better option. Please note that the court might not permit you to terminate your pregnancy if you are in the advanced stage of pregnancy. 

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