Offences relating to Miscarriage

The Indian Penal Code; 1860

Submitted to: Submitted by:

Dr. Samia Khan Syed Mohammad Haroon

20183678
B.A.LL.B (Hons.) S/F
3rd Semester

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 Table of Contents

1. Acknowledgement 3
4. Rights and Duties of Buyer and Seller 4-13
5. Bibliography 14

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 Acknowledgement

I would like to express my special thanks of gratitude to my teacher Dr Dinesh Kumar who
gave me the golden opportunity to do this wonderful project on the topic Laws Relating to
Sale, 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. Secondly I would also like to thank my parents and
friends who helped me a lot in finalizing this project within the limited time frame.

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Miscarriage means the premature expulsion of the child or fetus 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.

A. Causing Miscarriage:
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.

Section 312 requires two essentials to constitute as miscarriage:

i. Voluntary causing a woman with child to miscarry (abort), and

ii. Such miscarriage (abortion) should not have been in good faith for the purpose of
saving the life of the woman.

In the whole Indian Penal Code; 1860, nowhere is the mention of Miscarriage other
then abovementioned specific sections and it is made with proper precision to stop its
misuse and misinterpretation, the words “with child” and “quick with child” in the section
have specific use. As per judicial interpretation, a woman is considered to be in the former
situation as soon as gestation begins and on the latter situation when the motion is felt by
the mother. In other words, quickening is a perception by the mother that movement of the
fetus has started. The wrong-doer, who causes miscarriage in ordinary pregnancies, shall
be punished with imprisonment up to three years or with fine or with both. If the wrong-
doer cause’s miscarriage to the woman be quick with child, shall be punished for a term
extending up to seven years plus fine.

The offence under Section 312 is non-cognizable, bail-able and shall be enquired by a
Metropolitan Magistrate or by a Magistrate of the first class.

Illustration:

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‘A’, an unmarried girl, is love with B, who absconds, after her getting pregnant. ‘A’ takes
country medicine with an intention to miscarry. It was held that ‘A’ is guilty under section
according to Explanation appended to Section 312.

In Q.E. v. Ademma1,

A woman was charged for causing herself to miscarry, though she has been pregnant
for only one month, and there was nothing which could be called a foetus or ‘child’. The
lower court acquitted the woman taking a lenient view of the matter. But the High Court held
the acquittal bad in law emphasizing that of was the absolute duty of a prospective mother to
protect her infant from the very moment of conception.

In the case of Queen Empress v. Aruna Bewa2,

Where the term of pregnancy was almost complete and an attempted abortion resulted
in the birth of the child, a conviction under section 312 was set aside and one under section
511, IPC for attempt to bring about miscarriage was maintained. So, a person is also liable for
attempt of he fails in his endeavor as was held a person who aids and facilitates a miscarriage
is liable for the abetment of the offence of miscarriage under section 312, read with section
109 of the Indian Penal Code, even though the abortion did not take place.

Note: It should be remembered that one of the essential of miscarriage is that it should not be
done in good faith, to save the life of the woman.

In Rex v. Bourne3 (an English case)

A girl under fifteen, who was criminally assault in the most revolting circumstances,
became pregnant. An eminent obstetrics surgeon and gynecologist, who terminated the
pregnancy was charged under section 58 of the Offences Against the Person Act, 1861, for
causing abortion against the law

Justice Macnaghten said:

‘If the operation was done bona fide to save the life of the mother, the defendant was
entitled to an acquittal, that the bona fide object of avoiding the practically certain
physical or mental breakdown of the mother will afford an excuse, that if a doctor in
good faith thinks it necessary for the purpose of preserving the life of the mother, not
only he is entitled to perform the operation, but it is his duty to do so, and that the
burden of proving that the procurement of abortion is not lawful was upon the Crown.

1
1886 ILR 9 Mad 369
2
(1873) 19 WR (Cr) 230
3
(1938) All ER 615

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 The Court directed the jury that if the Crown had satisfied them beyond reasonable
doubt that the defendant did not do the act in good faith for the purpose of preserving the life
of the girl, he was guilty, but that if the prosecution has failed to do so, he was entitled to
acquittal. The jury Crown failed to comply with the obligation of proving that the operation
was not procured for the purpose of preserving the life of the woman.

In Sharif v. State of Orissa4,

The Orissa High Court held that where termination of pregnancy of a minor girl was
performed to save the life of the mother section 312, IPC is not attracted. In the impugned
case, the accused accompanied the girl with her consent to the nursing home, who wanted
termination of pregnancy to avoid social stigma. The accused did not instruct her to go for
termination. Held, the accused is not liable for causing the girl to miscarry.

B. Causing miscarriage without woman’s consent:

Section 313 of the Code says that

“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.”

Important Points:

1. Section 313 is in continuation of Section 312:

In the offence under Section 312, the pregnant woman’s consent is inherent. In the offence
under Section 313, there is no consent of pregnant woman. A person, who causes miscarriage,
against the consent of the pregnant woman, he shall be punishable under Section 313.

2. Under section 313, Indian Penal Code only the person procuring the abortion is liable to
punishment, whereas under section 312, IPC the woman is also liable to punishment.

In Moideenkutty Haji v. Kunhikaya5,

The Kerala High Court held that an offence under section IPC could not be made
where the only allegations in the complaint was that on hearing that the woman was pregnant,
the accused took her to a doctor, who sent her pregnancy and there was no case that was
without her consent. On the contrary, the averment showed that the woman willingly
submitted herself to abortion and even thereafter had sexual intercourse with the accused and
there was nothing to show that abortion was at the instance of the accused. Further, it was not
4
1996 Cr. LJ 2826 (Ori)
5
AIR 1987 Ker 184 (FB)

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clear from the allegation whether he was only accompanying the lady at her request and
whether he even made a request to the doctor to have the abortion done. Finally, the doctor
who conducted the abortion was not made an accused, which showed that she had no
complaint against him.

3. Nature of offence:
The offence under Section 313 is cognizable, non-bailable, non-compoundable, and shall be
inquired by the Court of Session.

C. Death caused by act done with intent to cause miscarriage:

Section 314 says that,

“Whoever, with intent to cause the miscarriage of a woman with child, does any act
which causes the death of such woman, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.”

If the act done without women consent:

Section 314 also says that if the act is done without the consent of the woman, the wrong-doer
shall be punished either with imprisonment for life or with the punishment above mentioned.

Important Points:

1. Punishment:

If person attends to miscarriage, but fails in his attempt and as a result the pregnant woman
dies. Then the offender shall be punished with imprisonment upto ten years plus fine. If
offender does the offence without the pregnant woman’s consent, he shall be punished with
imprisonment for life plus fine.

2. Mens rea:
Explanation to Section 314 says that no mens rea in the offender needs be proved. It is not
necessary for the purpose of Section 314 that the offender should know that the act is likely to
cause death of woman. Hence rash, negligent or involuntary act of the offender can attract the
provisions of this Section.

In Maideen Sab v. State of Karnataka6,

The pregnant woman was admitted at the hospital-cum-house of the accused-doctor by

her relatives, who went away to their houses. The doctor gave the medicines to abortion. The
woman felt unconscious and died. The accused immediately absconded from the city.

6
(1993) CrLJ 1430 (Kar.)

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He gave extra-judicial confession before three witnesses that due to his mishandling only she
died. The dead body was buried as it was decomposed. No postmortem was conducted.

Basing upon the circumstantial and chain of circumstances established and proved, the Court
punished the accused.

D. Act done with intent to prevent child being born alive or to cause it to die after birth:
Section 315 lays down that,

“Whoever before the birth of any child does any act with the intention of thereby
preventing that child from being born alive or causing it to die after its birth, and does
by such act prevent that child from being born alive, or causes it to die after its birth,
shall if such act be not caused in good faith for the purpose of saving the life of the
mother, be punished with imprisonment or either description for a term which may
extend to ten years, or with fine, or with both.”

Illustration:

Maneka, an unmarried girl of 17 gave birth to a child. Shortly after its birth she abandoned the
baby in a thicket not far from the home of Viswam her lover. The child was picked up after
some time by Viswam’s mother, but unfortunately it died presumably from want of
sustenance. It was found that child did not die in consequence of over exposure. Here Section
315 applies. Maneka is the wrong-doer.

For their fault, the innocent child is not held responsible. Unfortunately the child was found
dead presumably from want of sustenance. To provide adequate nourishment to a newly born
baby, it is the duty of the mother of baby, i.e., Maneka.

She failed in providing the nourishment the baby. She left the baby for her own fate. Hence
she shall be held liable under Sec. 315. Viswam’s mother is not responsible. As soon as she
noticed the baby, she picked up with an intention to save her.

In 2003, the Apex Court in Centre for Enquiry into Health and Allied Themes (CEHAT) v.
Union of India7,

expressing concern about the misuse of modern science and technology in preventing
the birth of a girl child directed the concerned authorities to strictly monitor the activities of
the ultrasound diagnostic clinics to prevent illegal female foeticide. However, with no change
in the mindset about females, the sex determination tests add to the adverse situation. This is
evident from a recent case decided on 7th August, 2007 in which Bombay High Court turned
down the request of a couple Vijya Kirti Sharma who had two daughters and wanted a son to

7
AIR 2003 SC 3009

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create a balance in their family, to get the pre-natal test conducted, so that they could choose a
male child. The Court held sex determination is not only against the spirit of the Constitution;
it also insults and humiliates womanhood.

The Court rightly said:

“Unfortunately sex ratio keeps getting worse in India: it is shocking to note

that in spite of the average figure of 927 girls for 1000 boys puts India right at
the bottom of the chart internationally. In fact, it fares even worse than
countries like strife strife-wracked Nigeria (965) and neighbour Pakistan
(958). According to the report, only China with 832 girls per 1000 boys rank
below India on this dubious front.”

Important Points:

1. Infanticide. The offence which this section punishes is the injury to the child's life Section
315 makes any act done with men to prevent a child from being born alive or to cause it to die
after birth punishable with imprisonment with may extend to ten years of either description In,
simple or grievous, or with fine, or with both, unless the act is done in good faith for the
purpose of saving the life of the mother. The offence is cognizable, non-bailable, non-
compoundable and is triable by the Court of Sessions

2. Amniocentesis:
The city and educated people well know about amniocentesis and other ways of determining
the sex of the child, while the child is in womb. The village and uneducated people do not
know such type of tests.

Hence, the people, who hate the female children, cause the death of the female children at the
time or after the birth. In some cases, to grab the property of someone and to remove the legal
male heir, certain crooked and villainy people kill the child at the time of the birth or after its
birth. Section 315 imposes penalty on such people.

3. Exception:
Only exception is given in this Section that if there is any danger to the live of the mother and
it is necessary to kill the child as per the medical expert’s opinion, then Section accepts such
incidence from the purview of the offence under this Section.

4. Punishment:
Ten years or with fine or with both.

5. Inquiry:
Offence is cognizable, non-bailable, non-compoundable, and triable by Court of Session.

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E. Causing death of quick unborn child by act amounting to culpable homicide:

Section 316 says that whoever does any act under such circumstances, that if he thereby
caused death he would be guilty of culpable homicide, and does by such act cause the death of
a quick unborn child, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

Illustration:

‘A’, knowing that he is likely to cause the death of a pregnant woman does an act which, if it
causes the death of the woman would amount to culpable homicide. The woman is injured, but
does not die; but the death of an unborn quick child with which she is pregnant is thereby
caused. A is guilty of the offence defined in this Section.

Comments:

(1) Death of unborn child:

This section punishes the causing of death of a quick unborn child by an act amounting to
culpable homicide. The offence is cognizable, non-bailable, non-compoundable and is triable
by a Court of Sessions.

(2) Ingredients:

(1) The woman was quick with child;

(2) The accused did an act to cause the death of the child;

(3) The circumstances under which the act was done were such as to make the accused
guilty of culpable homicide if death has been caused.

Important Points:
1. Section 316 is read with the third explanation of Section 299, which explains
about “Culpable Homicide”.
Third Explanation to Section 299: The causing of the death of a child in the mother’s
womb is not homicide. But it may amount to culpable homicide to cause the death of a
living child if any part of that child has been brought forth, though the child may not
have breathed or been completely born.

2. The provisions of Section 316 and Third Explanation to Section 299 apply to the
incident causing the death of the child in the womb where the pregnancy has advanced
beyond the stage of quickening and where the death is caused after the quickening and
before the birth of the child.

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 3. Punishment:

Imprisonment of either description for a term which may extend to ten years, or with
fine, or with both under Section 316.

4. The difference between Third Explanation of Section 299 and Section 316:
An act is done against the mother or with an intention or with knowledge comes under
Section 299. An act done against the child or mother with an intention to preventing
the child from being born alive or causing it to die after its birth comes within the
purview of Section 316.

Punishment is imprisonment for life, or imprisonment for 10 years and fine under
Section 299. Punishment is imprisonment of either description for a term which may
extend to ten years, or with fine or with both under Section 316.

In Murugan v. State of Tamil Nadu8

“The accused/husband struck his wife and caused her death. The postmortem
report stated that she was carrying a child of 20 weeks. The trial Court
imposed punishment under Section 316 opining that foetus gets life after 12
weeks of conception.”

6. Nature of offence:
Offence is cognizable, non-bailable, non-compoundable, and triable by Court of
Session.

F. Exposure and abandonment of child under twelve years, by parent or person having
care of it:

Section 317 lays down that

“Whoever being the father or mother of a child under the age of twelve years, or
having the care of such child, shall expose or leave such child in any place with the
intention of wholly abandoning such child, shall be punished with imprisonment of
either description for a term which may extend to seven years, or with fine, or with
both.”

The nature of offence under this Section is cognizable, bailable, non-compoundable and
triable by Magistrate of the first class.

8
(1991 CrLJ 1680 Mad)

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Comments

(1) Abandonment of child he section punishes the abandonment or desertion by a parent of

his or her child of tender age. The section will apply only when a child is exposed. If
the child dies before exposure, this section is inapplicable.

It is intended to protect infants of tender years, who are unable to take care of
themselves. The primary responsibility of bringing them up rests on parents who have
brought them into existence. The liability under this section rests only with the father
or mother or one having the care of such child.

(2) Ingredients:

a. The person coming within its purview must be father or mother or must have the
care of the child;
b. Such child must be under the age of 12 years;
c. The child must have been exposed or left in any place with the intention of
wholly abandoning it

Explanation of this Section explains:

This Section is not intended to prevent the trial of the offender for murder or culpable
homicide, as the case may be, if the child dies in consequence of the exposure.

Problem:

M with the intention of causing death of a child N leaves him in a forest. Q has rescued N.
Has M committed any offence? It will be held that yes, he has committed the offence as read
under section 317 of Indian Penal Code.

G. Concealment of birth by secret disposal of dead body:

Section 318 lays down that

“Whoever, by secretly burying or otherwise disposing of the dead body of a child

whether such child die before or after or during its birth, intentionally conceals or
endeavours to conceal the birth of such child, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with
both.”

Important Points:
1. Object:

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This Section is also intended to prevent infanticide. If the birth of a child is concealed, and its
dead body is disposed secretly, the law presumes that the person does it intentionally and he
did infanticide.

2. The provisions of this Section apply to those persons, whoever by secretly burying or
otherwise disposing of the dead body of a child. It is immaterial whether such child died
before or after or during its birth.

3. If the child concerned is fully developed and born alive or dead then only this Section
applies. If it f is in foetus stage only, then Section 318 does not apply, but Sections 312 and
511 shall apply.

4. Punishment:
Upto Two years imprisonment of either description, or with fine or with both.

5. Nature of offence:
The offence under this Section is cognizable, bailable, non-compoundable, land triable by
Magistrate of the first class.

6. Ingredients:

a. The birth of the child;

b. Secretly burying or disposing of the dead body of a child; and
c. With intention to conceal the birth of such a child.

The essential ingredient of this offence is that the culprit must secretly dispose of the dead
body of a child. If he disposes of a living child, then the action of the culprit would not attract
section 318, IPC. Such disposal must be in a secret place and with the intention to conceal its
birth. Lastly, the secret disposal of the body must be with the sole intention of concealing or
attempting to conceal its birth

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 BIBLIOGRAPHY

 BOOKS:
1. K.D. Gaur, Textbook on Indian Penal Code (Universal law publishing, Delhi, 6th edn.,
2018).
2. Hari Singh Gaur, The Penal Law of India 2367 (Law Publishers Pvt. Ltd., Allahabad,
11th edn., 2018).

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