By Rahul Goyal, Student of KIIT School of Law, Bhubaneswar

If it is, what are its legal consequences? How can an accused be punished?

So many questions!

In this article we will discuss about the questions related to miscarriage which in a mind of every person comes.

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.

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.
2. 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).
3. 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.

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.

(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)

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.

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.

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.