Jamia Millia Islamia

Offences related to miscarriage in india

SUBMITTED TO : SUBMITTED BY :
Dr. SAMIA KHAN YASHIR IQUABAL
PROFESSOR 3rd SEMESTER, B.ALL.B(HONS)

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(FACULTY OF LAW)

INDEX

S. No. TOPIC PAGE No.

1. Acknowledgement 3

2. Abstract 4

3. Introduction to MTP Act, 1971 5

4. What is Abortion? 7

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5. Legal Status of Abortion in India 8

6. The Indian Law on Abortion 10

7. The Medical Termination of Pregnancy Act, 1971 12

8. Qualification of Doctors under the MTP Act, 1971 15

9. Consent for Abortion 15

10. Approval of Place 16

11. The Nikita Mehta case (2008) 18

12. Other case laws 20

13. Conclusion 23

14. Bibliography 25

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 ACKNOWLEDGEMENT

I would like to heartily thank my faculty of criminal law Dr. Samia khan for providing
me with the opportunity for working over such an interesting topic of the offences
relating to miscarriage with respect to the status of women under Criminal laws.

For any work to be successfully completed, a prime requirement is that of leadership

and guidance. We must mentian Samia ma’am was ever ready to give us a helping
hand. It was under her guidance that I have been able to focus on the research
questions which otherwise would have been vague and unsatisfactory. She helped me
at every possible stage over this project and also encouraged me to go into deeper
research. Therefore this project, without any mention of theirs would have remained,
an idea incomplete.

Yashir Iquabal
3rd Semester,BA.Ll.B
Roll no. - 66

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INTRODUCTION

Miscarriage means 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. 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. 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. A woman, who causes her to miscarry, is within the meaning of this Section.
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

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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. A woman, who causes her to miscarry, is within
the meaning of this Section.

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.

WHAT IS ABORTION?

Abortion is the artificial or spontaneous termination of a pregnancy before the embryo or

foetus can survive on its own outside a woman's uterus.1 Therefore, it means expulsion of
the immature foetus at any time before it reaches full growth, i.e. the termination of
pregnancy by any method before the foetus is sufficiently developed to survive
independently.
Abortion may be classified into two categories depending upon the nature and
circumstances under which it occurs : (a) Spontaneous, which is technically referred to
miscarriage, and (b) Induced, which means voluntary miscarriage. Falling under the first
category is not punishable, while induced abortion constitutes a criminal offence under
Section 312 to 316 of the Indian Penal Code. Out of almost 35 million abortions which
take place annually in the world, more than half of them are illegal and performed by
untrained, unskilled persons and done under highly unhygienic conditions.
LEGAL STATUS
Before 1971:

1
Black's Law Dictionary, 2nd Ed.

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The Indian Penal Code, enacted in 1860 and written in accordance with contemporaneous
British Law, declared induced abortion illegal. Induced abortion was defined as purposely
"causing miscarriage". The penalty for abortion practitioners was either three years in
prison, or a fine, or both; for the woman availing of an abortion, the penalty was either
seven years in prison, or a fine, or both. The only exception was when abortion was induced
in order to save the life of the woman.

The prevalence of illegal abortions, combined with the idea that abortion could be a mode
of population control, caused the government to reconsider the law. In 1964, the Central
Family Planning Board of the government of India met and formed a committee to examine
the subject of abortion from the medical, legal, social, and moral standpoints. The abortion
study committee, headed by Mr. Shantilal Shah (Health Minister of Maharashtra)
submitted its report in December 1966. This report suggested that the penal code was too
restrictive and recommended that the exemptions under which abortion was permissible be
increased and liberalised. Many of the report's suggestions were included in the subsequent
Medical Termination of Pregnancy (MTP) Act.

1971 and Beyond:

The Indian abortion laws fall under the Medical Termination of Pregnancy (MTP) Act,
which was enacted by the Indian Parliament in the year 1971 with the intention of reducing
the incidence of illegal abortion and consequent maternal mortality and morbidity. The
MTP Act came into effect from 1 April 1972 and was amended in the years 1975 and 2002.

Pregnancies not exceeding 12 weeks may be terminated based on a single opinion formed
in good faith. In case of pregnancies exceeding 12 weeks but less than 20 weeks,
termination needs opinion of two doctors. The Medical Termination of Pregnancy (MTP)
Act of India clearly states the conditions under which a pregnancy can be ended or aborted,
the persons who are qualified to conduct the abortion and the place of implementation.
Some of these qualifications are as follows:

• Women whose physical and/or mental health were endangered by the pregnancy

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 • Women facing the birth of a potentially handicapped or malformed child
• Rape
• Pregnancies in unmarried girls under the age of eighteen with the consent of a
guardian
• Pregnancies in "lunatics" with the consent of a guardian
• Pregnancies that are a result of failure in sterilisation
• Conducting or associating or helping to conduct Pre-Natal Diagnostic tests for
determining the sex of the foetus.
• Sex selection on a woman or a man or both on any tissue, embryo, conceptus fluid
or gametes derived from either or both of them
• Advertisement or communication in any form in print, by electronic media or
internet by units, medical professionals or companies on the availability of sex
THE INDIAN LAW ON ABORTION

The Indian Penal Code under Sections 312, defines the offence of 'causing miscarriage' as
follows "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 3 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 7 years, and shall also
be liable to fine.
Explanation: a woman, who causes herself to miscarry, is within the meaning of this
section.
The framers of the Code have not used the word 'abortion', in Section 312, which relates to
an unlawful termination of pregnancy. This section speaks of 'miscarriage' only, which is
not been defined in the Code. However, miscarriage, in its popular sense, is synonymous
to abortion and consists in the expulsion of the embryo-foetus at any time before it reaches
full growth. Section 312 – Causing miscarriage
Section 313 – Causing miscarriage without woman’s consent
Section 314 – Death caused by act done with intent to cause miscarriage. If act done
without woman’s consent.

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Section 315 – Act done with intent to prevent child being born alive or to cause it to die
after birth.
Section 316 – Causing death of quick unborn child by act amounting to culpable
homicide.
Section 317 – Exposure and abandonment of child under 12 years, by parent or
person having care of it.
Section 318 – Concealment of birth by secret disposal of dead body.

Miscarriage technically refers to spontaneous abortion, whereas voluntarily causing

miscarriage, which is an offence under the Code, stands for criminal abortion. Legally
miscarriage means the premature expulsion of the product of conception, an ovum, or
foetus from the uterus at any time before the full term is reached. A distinction is made
under Section 312 of Code between causing miscarriage when a women is 'with child' and
when she is 'quick with child'. As per judicial interpretation a women is considered to be
in the former stage as soon as gestation begins and in the later stage when the motion is felt
by the mother. In other words, quickening is the perception by the mother that movement
of the foetus has started. It obviously refers to an advanced stage of pregnancy. Section 312
of the Code permits termination of pregnancy of therapeutic (medical) grounds in order to
protect the life of the mother. The unborn child in the womb must not be destroyed unless
the destruction of the child is for the purpose of preserving the yet more precious life of the
mother. The provision by implication recognizes that the foetus has the right to life. When
the termination of pregnancy is caused without the consent of the women, punishment may
extend to imprisonment for life or imprisonment of either description for a term, which
may extend to 10 years or fine.
If the death of the woman is caused by an act done with intent to cause miscarriage with
her consent punishment may extend to 10 years of imprisonment and fine, and if it is done
without her consent, imprisonment for life or ten years and fine. An act done with the intent
to prevent a child from being born alive or to cause it to die after death is punishable upto
10 years of imprisonment or fine or both. And the causing of death of a quick unborn child
by an act amounting to culpable homicide is punishable up to 10 years of imprisonment
and fine.

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 CONSENT FOR ABORTION

Section 3(4) of MTP Act clarifies as to whose consent would be necessary for termination
of pregnancy.
(a) No pregnancy of a woman, who has not attained the age of 18 years, or who having
attained the age of 18 years, is a lunatic, shall be terminated except with the consent in
writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except
with the consent of the pregnant woman.
It is important to note, in this section, that the consent of the woman is the essential factor
for termination of her pregnancy. The husband's consent is irrelevant. Therefore, if the
woman wants an abortion but her husband's objects to it, the abortion can still be done.
However, if the woman does not wants an abortion but her husband wants, it cannot be
done. However, the consent of the guardians is needed in the case of minors or lunatics.

WHERE THE PREGNANCY CAN BE TERMINATED

The MTP Act, 1971 under Section 4, specifies the place where a pregnancy can be
terminated. It stipulates that an operation must take place in either "a hospital established
or maintained by the government" or in "a place which has been approved for the purpose
of this Act by the government." However exceptions are made for emergencies.
Under Section 5(1), a doctor may terminate a pregnancy if it is "immediately necessary to
save the life of the pregnant woman". In such situations, the requisites relating to the length
of pregnancy, the need for two medical opinions and the venue for operation do not apply.
However, it needs to be pointed out that one aspect of this emergency clause tends to

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restricts rather than liberalize the old law. Section 312 of the IPC permitted abortions by
anyone with the object of saving the life of the mother, but under MTPA only a doctor can
terminate the pregnancy.

APPROVAL OF A PLACE

According to the MTP Act 1971, no place shall be approved under Section 4(b) :
• Unless the Government is satisfied that termination of pregnancy may be done
therein under safe and hygienic conditions.
• Unless the following facilities are provided therein namely:
1. An operation table and instruments for performing abdominal gynecological
surgery
2. Anesthetic equipment, resuscitation equipment and sterilization equipment
3. Drugs and parental fluids for emergency use.

The Central and State Government have been given powers to make rules and regulations
under Sections 6 and 7 of the Act respectively, concerning: experience or training of a
registered medical practitioner if he intends to terminate pregnancy; certification by a
registered medical practitioner of any opinion; intimation of such termination; and
prohibition of disclosure of such intimation or information furnished.
Thus, the oft-argued following justifications in favour of the permissive abortions are found
in the Indian law-

(1) Therapeutics: The old restrictive Indian abortion law has permitted abortion to save
the life of the mother. In addition, the reformed law, as seen above allows abortions when
the mother's life is not threatened, but when continued pregnancy will cause damage to her
mental and physical health.

(2) Eugenics: the basic of eugenic abortion is that there is a justification for abortion
when it is known before birth that the child will be born mentally or physically deformed.
The unborn child should be relieved of a life of misery.

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(3) Pregnancy caused by rape: the problem of a pregnancy caused by rape may effect
the mental health of the mother. It is assumed that the victim mother does not want the
child and does not want to bear the continuing result of a crime for which she was not
culpable.

(4) Social and economic considerations: A popular argument in favour of abortion is

based on the absolute right of the woman to control the use of her body. She has a right to
an abortion on demand to terminate any pregnancy, which she decides she does not want.
Admittedly, the right to control the use of one's body is founded on ideas of liberty, and
restrictions thereon may amount to an invasion of privacy.

In countries where abortion is legal, death rates are usually below 1 per 100,000 procedures.
Abortion is a very safe operation if the operation is performed by skilled medical
practitioners, having proper facilities and equipments. In developing countries like India
with scarce medical resources treatment of complications of abortion often posses a heavy
burden on the health care system. According to recent estimates made by the World Health
Organization, about one-quarter to one-third of maternal deaths are due to complications
of (illegally) induced abortion. This can be prevented through offering easily accessible
safe abortion services and through family planning services and education. Reliable
statistics show that in many countries where abortion is legally available, the abortion rate
is much lower than in countries where it is completely illegal.

CASE LAWS IN THIS REGARD

Psychological or mental trauma:

D. Rajeswari vs State Of Tamil Nadu And Others4-

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This case, is of an unmarried girl of 18 years who is praying for issue of a direction to
terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted
pregnancy of the child of three months made her to become mentally ill and the continuance
of pregnancy has caused great anguish in her mind, which would result in a grave injury to
her mental health, since the pregnancy was caused by rape. The Court granted the
permission to terminate the pregnancy.

Dr. Nisha Malviya And Anr. vs State Of M.P5 -

The accused had committed rape on minor girl aged about 12 years and made her pregnant.
The allegations are that two other co-accused took this girl, and they terminated her
pregnancy. So the charge on them is firstly causing miscarriage without consent of girl.
The Court held all the three accused guilty of termination of pregnancy which was not
consented by the mother or the girl.

4
1996 CriLJ 3795

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2000 CriLJ 671

Murari Mohan Koley vs The State And Anr.2 –

In this case, a woman wanted to have abortion on the ground that she has a 6 months old
daughter. She approached the petitioner for an abortion. And the petitioner agreed to it for
a consideration. But somehow the condition of the woman worsened in the hospital and
she was shifted to another hospital. But it resulted in her death. The abortion was not done.
The petitioner who was a registered medical practitioner had to establish that his action
was done in good faith (includes omission as well) so that he can get exemption from any
criminal liability under Section 3 of the MTP Act, 1971.

2
(2004) 3 CALLT 609 HC

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Abortion without mothers consent:

Shri Bhagwan Katariya And Others vs State Of M.P.3 –

The woman was married to Navneet. Applicants are younger brothers of said Navneet while
Bhagwan Katariya was the father of said Navneet. After the complainant conceived
pregnancy, the husband and the other family members took an exception to it, took her for
abortion and without her consent got the abortion done.
The Court opined that if we refer Section 3 of the Medical Termination of Pregnancy Act,
1971, a doctor is entitled to terminate the pregnancy under particular circumstances and if
the pregnancy was terminated in accordance with the provisions of law, it must be
presumed that without the consent of the woman it could not be done. Present is a case
where a permanent scar has been carved on the heart and soul of the woman by depriving
her of her child. And the Doctor will be liable.
Thus, the case laws show that a woman has an absolute right to abortion and no one can
take away this right from her. The Judiciary has been playing a vital role in securing these
rights to women. Right to abortion is a fundamental right of privacy.

Cap on MTP won’t apply when life of woman is in danger:

Ms X vs Union of India (2016)4 –

The Supreme Court allowed a rape victim based in Mumbai to abort her 24-week-old
abnormal foetus after the Centre clarified that a 20-week cap on termination of pregnancy
is not applicable if the pregnant woman’s life is found to be in grave danger. At the hearing,
a Bench of Justices J.S. Khehar and Arun Mishra perused a confidential medical report on

3
2001 (4) MPHT 20 CG
4
W/P (C)No.593 of 2016 at http://supremecourtofindia.nic.in/FileServer/2016-07-25_1469453114.pdf

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the condition of the woman, identified as only ‘Ms. X’, filed by a team of doctors at the
K.E.M. Hospital.

In the medical report, Justice Khehar read out the findings where the doctors had concluded
that the pregnancy was 23 to 24 weeks old. It said that continuance of the pregnancy would
involve “grave danger” to the life of the pregnant woman.

It was held that though The Medical Termination of Pregnancy Act, 1971 mandates against
abortion after pregnancy crosses the 20-week threshold, there are exceptions.

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 CONCLUSION
The laws of India do not permit causing miscarriage (i.e abortion). The Medical
Termination of Pregnancy Act, 1971 (MTP) Act, which prohibits abortion, was
enacted with a view towards containing the size of the family. However, in some
cases the desire for a small family may have outweighed the desire for a child of a
specific gender, leading to abortions where the sex of the fetus was different from
that desired by the family. The MTP Act stipulated that an abortion may lawfully
be done in qualified circumstances. But the unscrupulous connived to misuse the
law to have abortions conducted for the purpose of sex selection. Later, innovative
technologies made sex easier, and without the regulations to control the use of such
technologies, these technologies began to be misused for sex-selective abortions.
These actions necessitated enactment of the Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994 (PNDT) in 1994. This act was
amended in 2002 in an effort to

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 BIBLIOGRAPHY

Books/ Statutes:
• Gaur, K.D., Text book on the Indian Penal Code, Universal publication ltd.,
4th edition 2009

• The Medical Termination of Pregnancy Act, 1971.

• The Indian Penal Code, 1860.
• The Constitution of India, 1950.
• Shaw S.P., Laws of Child in India, 2001 edition, Allia Law Agency.
• Rao Mamta, Law Relating to Women and Children (2010), EBC.

Articles/ Websites:
• International Consortium for Medical Abortion, http://m.icma.md/country/IN/
• Ministry of Health and Family Welfare, Government of India,
• http://www.lawyersclubindia.com/articles/Abortion-violation-of-right-to-
lifeagainst-an-unborn-4092.asp

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