INTRODUCTION
“A person’s an individual regardless of how small.” The concept of miscarriage or abortion is usually considered unethical all around the world. There is a thin line between a genuine miscarriage of womb and the one done knowingly. Woman can give birth; this quality puts her on a see-saw of life. Here begins the war between the mother over her body and the child who until now has not taken birth.
Also, India ranked 94 among 107 countries in the Global Hunger Index 2020. It makes clear that there is a large number of people who do not get adequate amounts of food despite the continuous efforts made by the government. This is a major reason why most poor parents are forced to kill their children in the womb or during the very initial days of birth. Thus, this article deals with the miscarriage of womb, the legal and constitutional provisions that get attracted by it.
MEANING OF MISCARRIAGE
The term ‘miscarriage[1]’ also known in medical terms as a miscarriage and pregnancy loss, is that the natural death of an embryo or fetus before it’s ready to survive independently. It is important to note here that abortion and miscarriage are two concepts. It is often understood that each one miscarriage are abortions but not all abortions are miscarriages. Miscarriage may be a sort of abortion that’s not induced and is completed thanks to hormonal or biological complications.
The National Health Portal has listed down various causes for miscarriages, including hormonal problems, maternal infections, maternal health problems, autoimmune disorders, uterine abnormalities, problems of the placenta or incompetent cervix. When doctors detect any symptoms at an early stage which can cause the above-mentioned causes of miscarriage, an abortion would be suggested so to protect the life of the mother. Apart from this, the portal also provides for the diagnosis, management and prevention of miscarriages.
LEGAL PROVISIONS REGARDING MISCARRIAGES
1. INDIAN PENAL CODE,1860.
Miscarriage is an offence under the Indian Penal Code. These offences are dealt under section 312 to 316 range from without the consent of the woman bearing a child, for causing the death of such woman while causing miscarriage, for preventing a child from being born alive or for causing its death after birth and for causing such death by act amounting to culpable tarted and is still in the gestation period.
Difference between woman with child and woman with quick child:
Woman with child means who is in an early stage of pregnancy or 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 far graver in comparison to the above form. The fact of this difference is important for the relevant application of the law[2].
Section 312: [3]Causing miscarriage. —Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage is 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 lady who causes herself to miscarry, is within the meaning of this section.
Thus, the above section makes it very clear that miscarriage can be of 2 forms; causing a miscarriage of a woman bearing a child and causing a miscarriage of a woman who is quick with child. For understanding, a woman is said to be quick with a child, when the movement of the foetus can be felt inside the womb. This movement can be felt at different periods for different women, but usually, it occurs within 15-16 weeks of conception.
The first part of this Section deals with women carrying a child. Whoever causes such a toddler to be miscarried, they shall be susceptible to imprisonment for a term up to three years or fine or to both. The second part states that where a quick child is miscarried, they shall be punishable with imprisonment of up to 7 years and with a fine.
The Explanation under this Section explicitly mentions that a woman who causes herself to miscarry the child she bears is also liable to punishment under this Section. Miscarriage under section 312 is bailable, non-cognizable and non-compoundable.
Section 313: [4]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.
The difference between section 312 and 313 is that under this section the consent for miscarriage is involuntary, that is, without the consent of the lady bearing such child. The punishment under this section is imprisonment up to 10 years of life also, as fine. The lady isn’t punishable under this section because the offence is completed against her will. Miscarriage under section 313 is non-bailable, cognizable and non-compoundable.
ESSENTIALS TO CONSTITUTE AN OFFENCE UNDER SECTION 312 AND 313:
- Voluntary causing miscarriage by woman;
- Miscarriage against the consent of the woman;
- Miscarriage isn’t wiped out straightness to save lots of lifetime of the lady bearing such child.
Section 314: [5]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 be punished 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.
The above section clearly means when the person intends the miscarriage with the consent of such woman, which in process results in her death is punishable to imprisonment of up to 10 years and fine.
It is important to notice here that the knowledge or intention of the person whose act caused the death of the woman isn’t required here. The law needs the act of committing miscarriage to be proved. Also, there should be an immediate nexus between results of his act and therefore the death of that woman. [6]If the link is just too remote then the court won’t accept the charge of this section against the accused.
Section 315:[7] Act done with intent to prevent child being born alive or to cause it to die after birth.—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 of either description for a term which may extend to ten years, or with fine, or with both.
Essentials of section 315:
- Act must be done before the death of the child;
- Intention to stop child from being born alive or to die after death;
- Child not to be born alive or the death of the toddler after its birth.
This means that any act which may directly affect the kid from being born alive, also referred to as still-birth, or any action which may cause the death of the kid after its birth is punishable with imprisonment for up to 10 years or fine or both.
- Section 316: [8]Causing death of quick unborn child by act amounting to culpable homicide. —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.
This is a way graver section. It means whoever does any act and causes the death of somebody and would be guilty of culpable homicide, and by doing an equivalent act, causes the death of a fast, unborn child, has committed an offence under Section 316. They shall be susceptible to imprisonment of 10 years also a fine. It is through these intention or knowledge to commit an offence of culpable homicide (against mother). It is non-bailable, cognizable and non-compoundable offence.
Thus, these are the criminal provisions associated with miscarriage within the Indian legal code.
EXCEPTIONS TO MISCARRIAGE:
1. The Medical Termination of Pregnancy Act,1971
The main objective of this act was to eliminate the number of illegal abortions within the country. Section 3 of the Act lays down various grounds under which pregnancy are often terminated. it’s absolutely necessary for registered, medical practitioners[9] with a recognized medical qualification, whose names are registered at the State Medical Register and who have experience under gynaecologist and obstetrics, to conduct termination of pregnancies.
Section 3[x] of the Act specifies that the above-mentioned practitioners shall not be guilty of the offences mentioned under the Code or the other law, with reference to termination of pregnancies, if such termination is completed in compliance with the conditions mentioned under the Act. This provides protection of practitioners against the offences of miscarriages as mentioned within the Code.
Section 3(2) lays down the subsequent conditions for termination of pregnancies:
- When there’s danger or risk to life or risk of mental or physical health of the pregnant woman, including contraceptive failure.
- When the pregnancy arose out of rape or sexual activity with a mentally-ill woman.
- When there would be substantial risks to the kid and if born, the kid would suffer from abnormalities.
The termination is often done under the above-mentioned conditions only with the recommendation of a medical practitioner. This has been challenged because it places a final judgment only on the doctors to manoeuvre ahead with the termination, and not on the lady who might need to terminate the pregnancy.
Good Faith
If miscarriage is done in good faith (as under Section 52 of IPC), it will not constitute an offence. In case of an illicit relationship, the accused caused the woman to be pregnant and later in the process of miscarriage she died. The accused pleaded the grounds of good faith but the court squashed it as the miscarriage was done to hide their illicit relationship[10].
ANALYSIS
Prior to the introduction of the MTP Act, the acts of miscarriage were covered only under the provisions of IPC. With the progression of society, the Indian Government recognised the needs of women over her body which led to the introduction of the MTP Act. It was indeed an important step in view of the patriarchal society in which women live in.
- The miscarriage laws do not totally protect the reproductive rights of the women.
- Miscarriage criminalized when done with the consent of the woman is absurd as it takes away the right of choice to her body.
- Giving autonomy to medical practitioners regarding a woman’s reproductive rights would go against a woman’s right to life and her right to privacy.
- MTP Act is a step forward but is pulled back by its own lacunas as it is more inclined in protection of the doctors rather than the woman.
- It is year 2021, and the laws framed are decades old and thus need to be amended with the changing times to comply with the everchanging societal needs.
CONCLUSION
The above article, thus, discusses in detail the various legal provisions available in India in reference to miscarriages. It can be drawn that with the evolving time, there has been changes in the above provision yet there are loopholes which need to be amended. Also, there is clash of provisions in the MTP act and the POCSO Act, which need to be looked at in detail. Therefore, the Indian Legislature should look at these laws and make them in consonance with the rights of the women in India.
[1] https://en.wikipedia.org/wiki/Miscarriage#External_links
[2] Re Malayara Seethu AIR 1955 Kant 27
[3] Indian Penal Code,1860
[4] Indian Penal Code,1860
[5] Indian Penal Code, 1860
[6] Vatchhalabai Maruti Kshirsagar v State of Maharashtra (1993) Cr LJ 702(Bom)
[7] Indian Penal Code,1860
[8] Indian Penal Code,1860
[9] Dr Jacob George v State of Kerala (1994) 3 SCC 430
[10] State of Maharashtra v. Flora Santino Kutino, (2007) Cr LJ 2233 (BOM)
This article has been written by Khusboo Kharbanda, 4th year BALLB student at Savitribai Phule Pune University.
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