The article is written by Prasoon Shekhar, from ICFAI Law School, Dehradun and Supinder Singh, from Department of Law, Punjabi University, Patiala.

“The child is the beauty of God present in the world, that greatest gift to a family.”

-Mother Teresa

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Introduction

It is a natural thing that one who has taken birth has to die, but an act leading to the death of an unborn or newborn child is not cogitable. One of the very probable reasons for the said offence is the desire of having a male child as it is considered that a male child will take care of his parents in their older days. It is a harsh reality that we live in a country where goddesses are prayed but girl children are killed in the womb or in their very starting days of birth.  

Also, India is ranked 102 in hunger index as of 2019 Global Hunger Index Results. It makes clear that there is a large number of people who do not get adequate amounts of food despite the continuous efforts made by the government. This is a major reason why most poor parents are forced to kill their children in the womb or during the very initial days of birth.

Difference between Miscarriage and Abortion

There is a difference between how Medical Science and Law deal with the term ‘Miscarriage’. 

According to Medical Science

Miscarriage is the spontaneous loss of pregnancy before the 20th week, but if such loss spontaneously occurs after the 20th week, then that’s called Stillbirth. 

An Abortion, on the other hand, is when a pregnancy is deliberately eliminated.

Under Law

Miscarriage is 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. So, the Indian Penal Code, 1860 does not make any distinction between Miscarriage, Stillbirth and Abortion. Under this code, Causing any kind of Miscarriage (even with the consent of Pregnant Women), is a punishable offence.

Medical Termination of Pregnancy Act, 1971 provides an exception to the punishment mentioned in IPC. Under Section 3 of this Act, it is not an offence under any law, if there is the termination of Pregnancy by a registered medical practitioner (within 20/24 weeks), to protect the pregnant woman from a grave injury or to avoid the birth of a child with serious physical or mental deformities. Thankfully, in this Section, unintended pregnancies are covered within the meaning of grave injury to the woman. 

Offences Against unborn newborn Child

The offences related to the homicide of unborn or newborn child are dealt in Sections 312 to 318 of Chapter XVI of the Indian Penal Code, 1860 i.e, causing miscarriage, act done with intention of causing death, causing death, exposure or leaving of a child with the intention to abandon & concealing birth by secretly disposing of a dead body.

Causing Miscarriage

The term ‘miscarriage’ is not defined under this code. In legal terms, miscarriage refers to the deliberate termination of woman’s pregnancy (expulsion of human fetus) before entire development of the child (generally between 12th to 28th weeks of pregnancy). It can also be referred as spontaneous abortion.

These offences are defined under Section 312 to 314 of the Code. It deals with causing of miscarriage on the basis of its gravity. The punishment under section 312 differs for ‘woman with child’ i.e, being pregnant[i] and ‘quick with child’ i.e, advanced stage of pregnancy when movement of fetus can be felt[ii] but the punishment under section 313 has no effect whether the lady was ‘with child’ or ‘quick with child’. Punishment also differs with the element consent of the women. Miscarriage under section 312 is bailable, non-cognizable and non-compoundable but Miscarriage under section 313 is non-bailable, cognizable and non-compoundable.

The essentials to constitute the offence of miscarriage under Section 312 and 313 are as follows:

1. Voluntarily causing a woman to miscarry;
2. Causing miscarriage without women’s consent; or
3. Miscarriage is not done in good faith to save life of women.

Punishment for Miscarriage

In the case of Sharif v State of Orissa[iii], it was held that termination of pregnancy of a minor girl does not attract Section 312 as the same was done in order to save her mother’s life. The accused haven’t instructed the minor to go for termination of pregnancy but the minor went on his own to avoid the shame in society.

Death of women during Miscarriage

It is provided under Section 314 of IPC. Having knowledge of the consequence is not essential for an act to fall under this section. If miscarriage was being done with the consent of women then it can be punished with imprisonment up to three years and fine. But, if miscarriage was done without the consent of women then punishment can extend up to life imprisonment or imprisonment up to three years and fine.

Exception to Miscarriage

• Medical Termination of Pregnancy Act, 1971: The objective of the act was to eliminate the excessive large number of illegal abortions. Section 3 of the Act lays down the grounds under which the pregnancy can be terminated by registered medical practitioners i.e, when life of women is at risk, pregnancy due to rape, threat to mental and physical health of women, risk of abnormal or handicapped child to be born out, failure of precautionary tools used by couples to limit number of children.

It also provides that if the length of pregnancy does not exceed the period of 12 weeks, then termination of pregnancy can be done by a medical practitioner but if the length of pregnancy is in between 12 to 20 weeks then two medical practitioners are required.

In the case of Suchita Srivastava v. Chandigarh Administration[iv], it was held that if the termination of pregnancy was done in accordance to the provisions of MTP Act, 1971, the same would not constitute an offence.

In the case of Surender Chauhan v. State of MP (AIR 2000 SC 1436), the conviction under this section was held valid, where death of the woman was caused by the accused while causing abortion when he was not legally competent to terminate the pregnancy of the deceased. The person who had taken the woman to that ‘Doctor’ with intent to cause her miscarriage was also held guilty of the offence.

• Good Faith: If miscarriage is done in good faith (as under Section 52 of IPC), it will not constitute an offence.

In the Case of Dr. Jacob v. State of Kerela[v], the charges against the doctor was upheld by the Supreme Court and held that a person can be held liable for abortion if the same was not done in good faith for saving the women’s life.

In the case of State of Maharashtra v. Flora Santuno Kutino[vi], the accused had an illicit relationship with the lady who later became pregnant. Accused, to hide the proof of their relationship tried her miscarriage to be done in which she died. The accused was held liable as the miscarriage was not done in good faith.

Injury to Unborn Child

Sections 315 and 316 are related to the birth of an unborn child. Section 315 is aimed at foeticide i.e, a condition in which the fetus in the womb takes a human form (normally in six months). The difference with infanticide is that infanticide is committed after delivery but foeticide can be committed before delivery. The offence under section 315 is non-bailable, non-cognizable and non-compoundable 

Essentials of Section 315 are as follows:

1. Act must be done before the death of the child; 
2. Intention to prevent child from being born alive or to die after death;
3. Child not be born alive or the death of a child after its birth.

Exception: Act done in good faith to save the life of mother won’t come under this section.

In the case of Alka Verma v. State[vii], the accused were charged with Section 315 of IPC despite the child having taken birth. It was held by the Delhi High Court, that when the child has taken birth, the accused cannot be charged u/s 315.

In the case of Hirdanbai and Others v. State of Maharashtra[viii], the accused was acquitted of the charge under 315 of IPC and the court held that there must be sufficient proof that the accused has done such an act to prevent the child from being born alive or to die after death and the act done must result in child not being born alive or death of child after his birth. Then only a person can be acquitted under Section 315 of IPC.

Section 316 is a much graver section. It is done with intention or knowledge to commit an offence of culpable homicide (against mother), to cause the death of quick unborn child and is punishable for a term of imprisonment upto 10 years and fine, but if the act causes the death of the mother, then the person will be punishable for culpable homicide. It is non-bailable, cognizable and non-compoundable. 

It can be read along with Explanation 3 of Section 299 of IPC. It states that liability under culpable homicide does not arise if a child dies inside the mother’s womb, but it arises when any party of the child’s body has come out. 

In the case of Jabbar v. State[viii], it was held that an act comes under the purview of Section 316 only when the act was done with intention or knowledge to commit an act of culpable homicide against the mother. Only on the basis that acts were directed towards the mother and death of a quick unborn child has taken place, a person cannot be held liable under the present section. It was further observed that if the act would have been done with knowledge or intention to commit the act of culpable homicide against the mother, and even the mother would have survived but the child in the womb died, then it would constitute an offence under the present provision.  

In the case of Jabbar v. State of Uttar Pradesh (AIR 1966 ALL 590), it was clarified that for conviction under this section, merely causing the death of the quick unborn child is not sufficient. The prosecution has also to prove that the accused acted with the necessary intention to cause the death of the victim.

Abandonment and Exposure of an Infant

Section 317 of the IPC deals with the exposure or leaving of a child with intention of deserting. The offence under the present section 317 of IPC is bailable, cognizable and non-compoundable. The terms ‘expose and leave’ means not giving the child proper protection i.e, food, shelter etc., leaving the child in danger.

The Section requires the following essentials:

1. The person in question must be father, mother or person taking care of child;
2. The child must be under 12 years of age; and
3. The child must be intentionally be exposed or left in a place for deserting. 

This provision gives equal importance to schools, orphanages as they are dutybound to take care of the child. The punishment under this provision can extend upto imprisonment of seven years or fine or both.

The explanation of the section provides that if the act of leaving the child or exposing him with an intention to desert the child, if the death of the child occurs, the person accused shall be held liable for murder or culpable homicide as the case may be.

Illustration: ‘A’ is the illegitimate child of a lady. She deserted the child as to circumstances that he does not obtain food for 5 days. The child dies the next day due to natural death. Here, the lady can’t be made liable under murder. 

Concealment of Birth of a Child

Section 318 of the IPC, deals with the persons accused of concealing the birth of the child by secretly disposing or burying the dead body of the child. It is punishable with imprisonment up to two years or fine or both.

The essential elements of the section are as follows:

1. Intention to conceal the child’s birth;
2. Secretly burying or disposing the dead body of the child; and
3. The child may die before, during or after its birth.

In the case of State v. Kehari Singh[ix], the accused was acquitted of the charge as the court held that when the birth of the child had taken place, it was known to most of the villagers and disposing of the dead body of the child is not with the intention of concealing his birth and hence the accused can’t be made liable under Section 318 of IPC. 

In the case of Radha v. State of Rajasthan[x], it was held that if the child is alive at the time of secretly disposing, no offence under this section will be made out.

Case scenarios

1. If a person intending to cause Miscarriage of a woman administers her a tablet and as a result, she miscarries & her death is also caused, then that person can be charged with Sections 312 and 314 (para 1), provided that the tablet was administered with the consent of that woman. If the tablet was administered without the consent of the woman then, Sections 313 and 314 (para 2) will apply. 
2. If a person strikes a pregnant woman and thereby causes the death of her quick unborn child, he will be guilty of the offence defined under Section 316, if the blow was intended by him to cause the woman’s death or was one which he knew or had reason to believe to be likely to cause it.
3. If a Person A takes a Woman X (with her consent), to an Uncertified Doctor B for causing her miscarriage, and as a result of a surgical operation performed by B, the woman dies, then A and B can be charged with Sections 312 & 314 read with Section 112 of the IPC. 
4. Suppose a person administers a pregnant woman a tablet that causes serious damage to the vital organs of her unborn child. Later on, after the birth of that child, due to the damage caused to his vital organs by that tablet, the child dies. Here, the provisions of Section 315 shall apply to the person who had administered the tablet.

Conclusion

Causing miscarriage and injuries against an unborn child are punished because these are offences against society as a whole. In a sense, through these sections, the Indian Penal Code provides an Unborn Child with a Right to Life, as it provides punishment for causing a miscarriage even with the consent of the pregnant woman. But, the Medical Termination of Pregnancy Act, 1971 provides an exception to this right of the child by allowing abortions under certain conditions. IPC, in a way, also recognises the right of the pregnant woman to have a safe gestation period by providing punishment for anyone causing miscarriage or injuries to her unborn child. 

References

1. Queen-Empress v. Ademma ((1886) ILR 9 Mad 369).
2. In Re: Malayara Seethu vs Unknown (AIR 1955 Kant 27).
3. 1996 Cr LJ 2826 (Ori).
4. (2009) 14 SCR 989.
5. 1994 SCC (3) 430.
6. 2007 (109) Bom L R 652.
7. 129 (2006) DLT 642.
8. AIR 1966 Allahabad 590.
9. AIR 1952 MP 124.
10. 1973 (6) WLN 709.

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