Essential Ingredients

Voluntarily Causing Miscarriage

The provision is applicable to cases where the miscarriage is voluntarily caused and not
as a result of any accident or nmishap. Section 39 of the IPC defines 'voluntarily' to mean
intending to cause an effect or employing means which a person knows or has reason to
believe is likely to cause the intended cffect. Thus, intention to cause
miscarriage or
mens rea is an essential ingredient of the offence. It includes such acts as administering
medicine to a pregnant wonnan which causes abortion.

Woman with Child and Woman Quick with Child

The sections use the terms woman with child' and 'woman quick with child'. The
meaning of the words 'woman with child simply means a pregnant woman. The
moment a
woman conceives and the gestation period or the pregnancy begins, then the
woman is said to be with child."
However, the factum of pregnancy is an essential ingredient. If a woman was under a
misconception that she was pregnant and took an abortive and another helped her,
neither of them are guilty because she was not pregnant in the
first)place.
The term quick with child' refers to a more advanced stage of 3
pregnancy.
Quickening is the perception by the mother that the movement of the toetus has taken
place or the embryo has taken a foetal form. This term arises from the old notion that a
foetus becomes endowed with life and secures an identity apart from the mother, when
the movements are felt by the mother. However, causing
with child' is considered a much graver offence, than
miscarriage of a woman quick
with child'. So, in the former, the
causing miscarriage of a 'woman
prescribed punishment is simple or
imprisonment for a term up to seven years and fine, whereas in the latter, the term of
rigorous
imprisonment extends to a term up to three years (with fine or both).

Miscarriage
The 'miscarriage is nowhere defined in the IPC. The word 'miscarriage is used
term

synonymously with the word abortion'. As per Modi's Medical Jurisprudence, 'Legaly,
Queen Empress v Ademma (1886) ILR 9 Mad 369.
2 Hari Singh Gour, Penal Law of India, vol 3, 11th edn, Law
3 Re Publishers, Allahabad, 1998, p 3175.
Malayara Seethu AIR 1955 Kant 27,
(1955) Cr 372
LJ
Ibid. (Mys).

640
 Offences Relating to Children
rriage means the premature
nrs from the uterus, at expulsion of the product of conception,
aT any period betore the full term is
rerms, namely, abortion, and ovum or
reached'.
miscarriage and premature labour, areMedically, three
the evpulsion of foetus at a
used denote
only when an ovum is ditferent stages gestation. The term 'abortion' is
of to

expelled within the first

nlacenta is formed. Miscarriage is used when months of pregnancy, before the
used
he seventh month of foetus is expelled from the fourth
a
gestation, betore it is
viable, while 'premature labour is to
thc delivery of a viable child,
possibly capable of being reared, before it has become
fully mature.
Acts of doctors and nurses which facilitate or
accelerate delivery cannot be treated as
oftences under these provisions, for the reason that
otherwise, the
been delayed; particularly when the child is born alive delivery would have
and no injury is caused to the
mother or the child.

Consent of Woman
Section 312 of the IPC envisages a situation where the miscarriage is caused with the
consent of the woman. Thus, the woman herselt, whose miscarriage was caused, is also
liable to be punished under the section. An offence under this section shall be punished
with imprisonment of either description which may extend to seven years and shall also
be liable to fine. If, however, the same offence of causing miscarriage is done without the
consent of the woman, it is considered a much more graver offence and as per s 313. it is
punishable with imprisonmentfor life or with imprisonment of either description for a
term which may extend to ten years and fine. However, under s 313, the person
abortion
procuring the is liable to punishment whereas under s 312 the woman is
alone
also liable for punishment.
in Death of Woman
Causing of Miscarriage Resulting
while causing miscarriage,
IS a
further aggravated form
Causing the death of the woman,under As per s 314 of the ÍPC, when an
of the offences described earlier
ss
312 and 313.but which act results in
death, then
act is done with the
intention of causin8 miscarria8e, to As this provision
liable for imprisonment
tor a
term up ten years. per
it is an offence not death. In other WOrd
intent is only to cause miscarriage and
it is sufficient if the element ot this crime. lt is sufficienr o how
is not an essential
intention to cause death miscarriage resulted in rhe da of
carried out with
intent
to cause
that an act which is under this section. A direct nevi
the home offence
the w o m a n , to bring
accused and the death or
tne
woman needs to be proved." The evnl-
done by the is not e v e n essential that the ottender should know that
vides that it
to the section provV death.
cause

the a c t is likely
to
icrarriage resulting in the death of the wonman isis done
done w
without
itha.
314, it is harsher
n
Her s thethe ishment prescribed
punishment prescribed is harsher which can include life
then
her consent,

imprisonment.

5 Ibid.
LAlK 1987 Ker 184; fubs Leus v
Ibid. Shuie Uttar rudesb (1996) Cr LI 940 (AU)
Sate uf Maharshtra (1993) C.ruf
oidenku.Mar:
Vachbhalabai
Marusi Ksi 145040 (Kant): Sorhab Ali v Stute AsamL) 702 (Bom); sce also
rnataka (1993) ( r
1) of Aluiieen Sab v State
B:har (200 0)C1)
5094 (Pat); Mudau (1993) Cr L) 3525
da v tut han State of Madhya Pradeh AlR 2000RaySCBhanlari v Sute of
v
ofState (Gau); Thelanga
1436, (2000) 4 SCCRajasthan AIR 1973 `c
Munda
436; Surendra (huhan

LI0.
641
 Criminal Law

Exceptions
Section 312 exempts persons who cause miscarriage in good faith for the purno
saving the life of the woman. In such situations, the personis not liable under
section. He is liable if the abortion is not carried out in good faith for saving life of the
pregnant woman.

In one case, a surgical operation for abortion was pertormed by a quack on a wom
with her consent. The woman died due to perforation of her uterus. The trial Co
acquitted him. On appeal, the Kerala High Court found him guilty under s 314, IP
and imposed a sentence of rigorous imprisonment for a period of four years and a fine ne
Rs On a
to be paid to the son of the
5.000, deceased. further appeal, the
Supreme Cou
confirmed the conviction under s 314, but reduced the sentence of four years rigora
1S
imprisonment to two months imprisonment already undergone and instead enhanced
the of Rs 5,000 to Rs 1,00,000 to be deposited in the name of the deceased's minor
son.
fine
11
In State of Maharashtrav Flora Santuno Kutino," one of the respondents, who had
illicit relation with a woman and pregnated her, was instrumental in causing miscarriage.
When she died because of excessive bleeding. he, with the help of other respondents,
buried her. But the trial court acquitted him. On appeal, the high court convicted him
on the ground that the miscarriagewas not in good faith for saving life of the deceased.
It was carried out for wiping of his illicit relationship.
However, in order to provide for safe abortions, termination of certain pregnancies by
registered medical practitioners has been legalised with the enactment of the Medica
Termination of Pregnancy Act 1971 (34 of 1971). Under this Act, a woman can
legally
get her pregnancy terminated by a registered medical practitioner, if, the continuance ot
her pregnancy would cause risk or injury to her
life, either physical or mental, or if the
foetus revealed abnormalities. The Act further provides that if
pregnancy is as a result o0
rape or due to failure of contraception methods, it would constitute injury to the menta
health of the pregnant woman. After the enactment
of the Act, the provisions relating
miscarriage, thus, have become subservient to the Act because of the non-obstante Cl
in s 3, which allows abortions or
certain circumstances. 12 t, in
miscarriage by a registered medical practition
limitations ot
termination of pregnancy." general, provides guidelines for, and