Miscarriage: Meaning, Validity, Exceptions, Attempt & Abetment

Miscarriage: Meaning, Validity, Exceptions, Attempt & Abetment | Overview

• Is causing miscarriage a crime: with consent or without consent?
• Consent: does it make any difference?
• Act must be voluntary: not an act of good faith
• Difference between “woman with child” and “woman with quick child
• Miscarriage: What act can be called as a miscarriage?
• Exception: What cannot be called as an offence of miscarriage?
• Attempt of miscarriage: a diversified opinion of the court of law
• Abetment of miscarriage

This article talks about the sections governing the offence of miscarriage. It explains the validity of consent, as in whether the aspect of consent would make any difference or not. The elements of the offence of miscarriage i.e., voluntary act or intentional act, what acts can be called as miscarriage as the definition of miscarriage is not provided, the difference between the terms woman with child and woman with a quick child is explained in detail.

Further, the aspect of intention, where is required and where it is immaterial is also explained. What can be an exception when an offence of miscarriage is committed which are not unlawful and not punishable under law. The attempt and abetment of the offence of miscarriage is also dealt in brief to explain the application of the law given in penal code.

Miscarriage is an offence under Indian Penal Code, and is one of the offence covered under the category of “Offences Relating to Children”.^[1]

I. Is causing miscarriage a crime: with consent or without consent?

The miscarriage either caused to a woman with consent or without consent is treated as an offence as it is a chapter concerning the children and not specifically the mother. Hence, even though the mother consents, miscarriage is illegal in the eyes of law.

“312. Causing miscarraige—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 also be liable to fine

Explanation—A woman who causes herself to miscarry, is within the meaning of this section”

“313. Causing miscarriage without woman’s consent—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”

“314. Death caused by act done with intent to cause miscarriage—Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall bepunished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; if act done without woman’s consent.—and if the act is done without the consent of the woman, shall be punished either with imprisonment for life, or with the punishment above mentioned

Explanation—It is not essential to this offence that the offender should know that the act is likely to cause death”

Section 312 to 314 are related to the offence of miscarriage, dealing from miscarriage with consent to the death of the victim while attempting to miscarriage. All the above made punishable under these sections.

II. Consent: does it make any difference?

Though section 312 does not explicitly mention the consent of the women to be present. But it is made evident from the inclusion of a separate section 313, wherein the consent of the woman is absent. This makes us clear that section 312 talks about miscarriage with the consent of the woman.^[2]

So, the person causing miscarriage along with the woman consenting that miscarriage will be criminally liable for causing a miscarriage of the unborn child she is carrying. But when the miscarriage is caused without consent, then section 313 will be applicable and the woman who did not consent for miscarriage of the unborn child she is carrying is not made criminally liable.

Only the perpetrators are made liable. Further, the punishment under section 312 is for a lesser term when compared to section 313.^[3]

III. Act must be voluntary: not an act of good faith

The act of causing miscarriage must be “voluntary” as per the requirement of the law and must not be an act done in “good faith”. As the law requires the criminality aspect in the act of miscarriage committed. Now, what is “voluntary” depends upon its definition given in section 39 of the code.^[4]

“39 “Voluntarily”—A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it”

Hence, the section makes it an essential ingredient i.e., presence of “mens rea” to commit the miscarriage offence. That is the reason why the word voluntary was added and the aspect “bonafide intention” is to be excluded.

IV. Difference between “woman with child” and “woman with quick child”

The act has mentioned two different terms i.e., “woman with child” and “woman with quick child” what do they mean and what is the difference between the two is not provided in the section.^[5]

These two terms are different and one means a woman who is pregnant, but the one whose period of pregnancy has just started and is still in the gestation period. Whereas the term woman with a quick child means a woman who is in the advanced stage of her period of pregnancy and the foetus has some movement i.e. the embryo has taken the form of a foetus which is said to be having some form of life in it. This crime committed at this stage is much graver when compared to the above form.^[6]

The fact of this difference is important for the relevant application of the law. Also, the fact that whether a woman was pregnant or not is also important as the law does not punish otherwise. For suppose a woman who assumes that she is pregnant and undergoes an abortive method to remove the pregnancy is not punishable under the law.^[7]

V. Miscarriage: What act can be called as a miscarriage?

The term “miscarriage” is not defined anywhere in the code, though it is treated as an offence under the same code. The word is often synonymously used to word “abortion”, which is neither defined in penal code nor in medical termination act^[8]. This act governs the termination of pregnancy but never uses the term abortion. The distinction of the same has been discussed in the case of Re Malayara Seethu.^[9]

It has been explained as- “Legally, miscarriage means the premature expulsion of the product of conception, an ovum or a foetus, from the uterus, at any period before the full term is reached.

Medically, three distinct terms, viz., abortion, miscarriage and premature labour are used to denote the expulsion of a foetus at different stages of gestation. Thus, the term, abortion, is used only when an ovum is expelled within the first three months of pregnancy before the placenta is formed.

Miscarriage is used when a foetus is expelled from the fourth to the seventh month of gestation, before it is viable, while premature labour is the delivery of a viable child possibly capable of being reared before it has become fully mature”^[10]

Death caused while committing the act of miscarriage: Is mens rea required?

Section 314 is made to hold any person criminally liable for committing miscarriage and meanwhile causes the death of the woman who is expectant with pregnancy. Here, the person committing miscarriage need not have the intention to cause death and still is liable for her death.

This section provides much harsh punishment when compared to other sections when the death is caused to a woman who did not consent for the miscarriage or whose consent is absent. The law requires the fact of committing miscarriage to be proved as well as that there is direct nexus between result of his act and the death of that woman. If the link is too remote then the court will not accept the charge of this section against the accused.^[11]

Hence, the facts relating to the act done by the accused leading to a result i.e., death which is proximate enough to satisfy the court, must be proved for the application of this above section.^[12]

VI. Exception: What cannot be called as an offence of miscarriage?

1. Good Faith

The section provides for an exception saying that “it should not be done in good faith”, as the law will not punish someone who commits the offence of miscarriage without mens rea. So, if someone causes miscarriage in order to save the woman from any danger to her life.

In the case of State of Maharashtra v. Flora Santuno Kutino (2007) Cr LJ 2233 (Bom), where the accused, who caused the pregnancy to a woman with whom he had an illicit relationship and due to which she died, pleaded the exception of good faith. The court refused saying that, miscarriage was caused not due to danger to her life but to swipe off the illicit relationship they had. This is not treated as good faith, hence convicted.

2. As per the law: “Medical Termination of Pregnancy Act, 1971”

The law provides for an act to govern the legal termination of pregnancy.^[13] In the cases like rape, uninvited pregnancy which could effect the mental and physical health of the woman badly or will lead to abnormalities to foetus or woman, would be a valid cause to undergo a termination of pregnancy.

Further termination caused by any means by a medical professional^[14] as governed by this is treated as legal if the guidelines and limitations of the act are taken into consideration and are followed with diligence.^[15]

Thus, under any valid cause of the woman undergoing termination of pregnancy or the anyone causes termination to protect the woman’s life the act will help it to be under the legal confines and will not be a crime under the Indian Penal Code.

VII. Attempt of miscarriage: a diversified opinion of the court of law

In the case of Munah Binti Ali v. Public Prosecutor, (1958) 24 Malayan Law Journal 159(CA) where a woman was attempting to abort another woman and the same was complained by the victim saying that she tried to abort her. but the accused raised a contention that the victim was never pregnant and hence this is an impossible task to achieve and should be considered merely preparation.

The court rejected the contention and convicted her of that offence by considering the illustrations of section 511. And said that the attempt made by the accused may not have been accomplished but that was because the non-existence has frustrated the accomplishment otherwise the same would have become successful which was also the exact communication made by the illustrations.^[16]

Although the above case explicitly deals with the ambit of section 511, it can also be dealt with under the offences relating to miscarriage, as it involves the case of an attempt to abort a woman.

The above case is contradictory when we take the aspect of pregnancy as the main issue. Thus, this case was seen as a diversified opinion where the woman has not consented and the intention of causing miscarriage and some overt act done to achieve the intended result was made punishable as an attempt to miscarriage although the woman was never pregnant in the first place. Perhaps, this case cannot be treated as a general rule and can be made applicable only under special circumstances.

VIII. Abetment of miscarriage

The abetment of the offence of miscarriage is also punishable under the penal code. In the case of Madan Raj Bhandari v. State Of Rajasthan AIR 1970 SC 436, the accused had abetted the victim to undergo miscarriage of pregnancy which was a result of their illicit relationship. The victim, later on, died due to improper way of causing miscarriage. The court of law declared that the abettor of the miscarriage will also be criminally liable, although the victim if alive would not be held liable.

Further, if the co-accused, was not aware of the abetment of miscarriage being committed by the main offender, is not proved to be an abettor and is held innocent. This fact will not make the main accused free of his offences. He was still made liable as an abettor and as an offender for causing miscarriage and was convicted under section 314 read with section 109 of IPC.^[17]

Thus, in case of abetment of miscarriage, where the accused had instigated the woman to undergo miscarriage is innocent as the woman is been manipulated by the main offender and is not aware of her decisions being made with her own will or not. In such cases, the main offender will be liable as an abettor as well as an offender of miscarriage. Hence the case would be charged with the relevant section between 312 to 314 read with section 109 of the Indian Penal Code.

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^[1] Indian Penal Code 1860, ch XXXV

^[2] Tulsi Devi v State of Uttar Pradesh (1996) Cr LJ 940(All)

^[3] Moidenkutty v Kunhikoya AIR 1987 Ker 184

^[4] Indian Penal Code 1860, s 39

^[5] Queen Empress v Ademma (1886) ILR 9 Mad 369

^[6] Re Malayara Seethu AIR 1955 Kant 27

^[7] Hari Singh Gour, Penal Law of India (vol 3, 11th edn, Law Publishers 1998) p 3175

^[8] The Medical Termination Of Pregnancy Act, 1971 (Act No. 34 of 1971)

^[9] Re Malayara Seethu AIR 1955 Kant 27, para 10

^[10] Jaising P Modi & N J Modi, Modi’s Textbook of Medical Jurisprudence and Toxicology (17th edn, N M Tripathi 1969)

^[11] Vatchhalabai Maruti Kshirsagar v State of Maharashtra (1993) Cr LJ 702(Bom)

^[12] Surendra Chauhan v State of Madhya Pradesh AIR 2000 SC 1436

^[13] Medical Termination of Pregnancy Act 1971, s 3, 4 & 8

^[14] Dr Jacob George v State of Kerala (1994) 3 SCC 430

^[15] Nand Kishore Sharma v State of Rajasthan AIR 2006 Raj 166

^[16] Munah Binti Ali v Public Prosecutor (1958) 24 Malayan Law Journal 159(CA)

^[17] Madan Raj Bhandari vs State Of Rajasthan AIR 1970 SC 436

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