Law related to Abortion – Part 2

Click here to read the previous part of Law Related to Abortion – Part 1

Elements should be disclosed by the Complainant while making a complaint under section 313

  • The accused was aware of the fact that the woman was pregnant
  • His/her actions resulted in the miscarriage of the pregnant woman. The said actions were committed voluntarily by the accused
  • She did not act in good faith
  • She did not act in the said manner to save the life of the pregnant woman
  • The pregnant woman did not consent to the causing of miscarriage
  • That the woman miscarried in consequence of it

  Accused defense charged under Section 313

  • He/she was unaware about the fact that the woman was pregnant
  • The act which resulted in the commission of the crime was not done voluntarily
  • The act which resulted in the commission of the crime was done in good faith
  • The act was done to save the life of woman with child
  • 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.  

Medically as well there is a difference between the two terms. The term ‘abortion’ is used only when an ovum is expelled within the first three months of pregnancy. On the other hand,‘miscarriage’ is used when a fetus is expelled from the fourth to the seventh month of gestation, before it is viable.

Bailable Offence

The complaint has been filed under Section 312 of the IPC. However, if the complaint was filed under Section 313 of the IPC, then the accused would not get the bail (the same being non-bailable offence).

Compoundable Offence

Neither the offence under Section 312 nor the one under Section 313 is a compoundable offence

Court which 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

Cognizablity of Offence

If the miscarriage was caused without the consent of the woman then the same is a cognizable offence. However, if the miscarriage was caused with the consent of the woman, then it is a non-cognizable offence.

What if the pregnant woman agreed to the miscarriage because of the pressure of in-laws? In such a situation, can she be still held responsible for commission of a crime?

In such a situation, the pregnant woman would not be held responsible for commission of a crime. The case would be covered by Section 313 of the IPC. It is very necessary that from the very beginning the pregnant woman takes the stance that the miscarriage was used against her desire.

Punishment of In-laws

They can be punished for this act but not necessarily under Sections 312 and 313 of the IPC

Section 312 of IPC- 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

COMMENT- This section deals with the causing of miscarriage with the causing of miscarriage with the consent of the woman, while the next section deals with the causing of miscarriage without such consent.

The Medical Termination of Pregnancy Act, 1971(34 of 1971) provides for the termination of pregnancy by registered medical practitioners where its continuance would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health or where there is a substantial risk that if the child was born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Where the pregnancy is alleged to have been caused by rape or as a result of failure of a contraceptive used by a married woman or her husband, it would be presumed to constitute a grave injury to the mental health of the pregnant woman.

The termination of a pregnancy by a person who is not a registered medical practitioner will be an offence under the IPC, 1860, which to that extent is modified. It is high time that this section too was suitably amended in terms of Medical Termination of Pregnancy Act, 1971 (34 of 1971) to include the various other grounds on account of which pregnancy can now be terminated by registered medical practitioner. The Medical Termination of Pregnancy Act, 1971 does not empower the husband, far less his relations, to prevent the concerned woman from causing abortion if her case is covered under section 3 of that Act. Under 312 of the IPC, 1860 causing miscarriage is a penal offence. Relevant civil law has since been embodied in the Act legalizing termination of pregnancy under certain circumstances. Since law is liberal for effecting such termination, the Act does not lay down any provision on husband’s consent in any situation.

  • ‘With child’ means pregnant, and it is not necessary to show that “quickening’, that is perception by the mother of the movements of the foetus, has taken place or that the embryo has assumed a foetal form, the stage to which pregnancy has advanced and the form which the ovum or embryo may have assumed are immaterial. Where a woman was acquitted on a charge of causing herself to miscarry, on the ground that she had only been pregnant for one month and that there was nothing which could be called foetus or child, it was held that the acquittal was bad in law.

A woman quick with a child simply means a particular stage of pregnancy at which quickening takes place. It is a perception of the woman of the movement of foetus. Section 312 can even apply to a pregnant woman herself who causes her own miscarriage. God faith by itself is not enough. It has to be good faith for the purpose of saving the life of the mother or the child and not otherwise. This observation of the High Court of Delhi occurs in a case in which the doctor was found to be negligent and careless in injecting needles twice for performing abdominocentesis.

The result was that the patient had to undergo forced abortion because septic developed. There was content only for one insertion and that was not at all applicable to second insertion.

  • ‘Miscarriage’ is 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.

Section 312.1 Death in attempt to terminate pregnancy- A woman had pregnancy of 24 weeks out of illicit relations and a doctor administered an injection for termination of the pregnancy but the woman died the next day without miscarriage. It was held that the act of the doctor amounted to ‘voluntarily causing miscarriage’ within the meaning of section 312 read with section 511, as the doctor was presumed to know the possible effects of the medicine. Deceased, an unmarried girl was pregnant from accused; she died while causing miscarriage due to perforation of uterus following abortion. It is a clear case that accused was instrumental in causing the woman to miscarry and obviously it was not done in good faith for purpose of saving life of deceased. Miscarriage was with a view to wipe out evidence of deceased being pregnant. Accused liable to be convicted under sections 312, 315, 316 and 201 of IPC, 1860

3 ‘Quick with Child’- Quickening is the name applied to peculiar sensations experienced by a woman about the fourth or fifth month of pregnancy.

Section 313 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 , or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

COMMENT- Under this section the act should have been done without the consent of the woman. Under it the person procuring the abortion is alone punished; under section 312 such person as well as the woman who causes herself to miscarry are both punished. Where the accused woman kicked a pregnant woman in her abdomen resulting in miscarriage, her conviction under section 313 was sustained.

Section 313.1 CASES- Section 313 would be attracted only if it is established that the pregnancy is terminated without the consent of the prosecutrix.

Section 314 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;

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.

COMMENT- This section provides for the case where death occurs in causing miscarriage. The act of the accused must have been done with intent to cause the miscarriage of a woman with child.

Section 314.1 CASES-  The son-law of a pregnant woman left her at the house of the accused doctor.. Her dead body was recovered from the place where it was buried in the accused’s house. It was in a decomposed state. The accused made extra-judicial confessions to three different persons to the effect that the death took place during abortion. Circumstantial evidence also proved this fact beyond reasonable doubt. Her conviction under the section was confirmed as also the five-year RI sentence, but fine was set aside. A homeopath operated upon a pregnant woman to cause abortion but she died a few hours after operation because her uterus got perforated. His conviction under section 314 was upheld.

A nurse attempted to cause miscarriage of a pregnant girl but was unsuccessful. On the third day another person, the accused, an attendant, made an attempt and succeeded but the condition of the girl became serious after five days. She was hospitalized and died of septicaemia which had developed from ruptures and tears in the internal parts of vagina. There was no evidence to show that ruptures and tears had occurred at the hands of the accused. It was held that his conviction under 314 was not proper.

A person, named, C, was alleged to have had illicit relations with the deceased woman. He took her to a doctor for the purpose of aborting her pregnancy. The doctor caused her death in that process. The doctor was not qualified for the purpose, nor was his clinic approved by the Government under the Medical Termination of Pregnancy Act, 1971 and was not having the basic facilities for abortion. There was a concurrent finding that the act was done by the doctor in furtherance of the common intention with C. It was held that the conviction under this section 34 was proper.

[Section 314.2] Section 313 and Section 314- Ingredients for both these offences are contraindicative and cannot go together. When conviction is recorded under section 304-A, it pre-supposes a negligent act, which would rule out any intentional act; whereas the conviction for offences under sections 313 and 314 can be founded only on intentional act of the accused and not negligence. Presence of mens rea would be sine qua non in such a situation. The trial Court, therefore, apparently erred in recording conviction of the appellants for offences punishable under sections 304-\A and 313 and 314 of IPC, 1860.

Section 315- 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 or other description for a term which may extend to ten years, or with fine or with both.

COMMENT- Any act done with the intention here mentioned which results in the destruction of the child’s life, whether before or after its birth, it made punishable. So far as offence punishable under section 315 of the IPC, 1860 is concerned, the offence is committed by a person who 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, if such act prevent that child from being born alive, or causes it to die after its birth, if such act be not caused in good faith for the purpose of saving the life of the mother. Cognizance taken of the offence under section 315 of IPC, 1860 and the charge framed therein against the petitioner are also not maintainable in view of the fact that no documentary evidence could be collected in course of investigation in support of the allegation that the pregnancy of the prosecutrix was terminated at the instance of the petitioner.

She was even not medically examined by the Doctor or the Board of Doctors and there is no medical report in support of the allegation that her pregnancy was ever terminated at any earlier point of time. As the alleged offence under section 315 of the IPC, 1860 relates to termination of pregnancy, such offence may be supported through the medical opinion of the registered practitioner and for want of such prima facie material charge cannot be framed in such section, accordingly the cognizance cannot be taken for the offence under section 315 of the IPC,1860.  Intention is one of the major ingredients of sections 315.

Wording of section 315 of the IPC, 1860 itself shows that whoever before the birth of any child does any act with the intention of thereby preventing 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. In this case the patient was admitted for delivery. During course of delivery there was rupture of uterus which led to bleeding and subsequent death of the patient and the child. So, it is not case of any prosecution witness that the respondent deliberately committed offence punishable under section 315 of the IPC, 1860.

Section 316- 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 for a term which may extend to ten years, and shall also be liable to fine.

ILLUSTRATION

A, knowing that he is likely to cause death of a pregnant woman does an act which, if it causes the death of a woman would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section.

COMMENT- This section punishes offences against children in the womb where the pregnancy has advanced beyond the stage of quickening and where the death is caused after the quickening and before the birth of the child. Any act or omission of such a nature and done under such circumstances as would amount to the offence of culpable homicide, if the sufferer were a living person, will, if done to a quick unborn child whose death is caused by it, constitute the offence here punished.

Unless the act is done against the mother with an intention or with a knowledge which brings it within the purview of section 299, it cannot constitute an offence under this section merely because the death of a quick unborn child has resulted from an act against the mother. A husband striking his wife dead was held guilty of the offence under this section. The medical evidence showed that she was carrying a male child of 20 weeks. A foetus gets life after 12 weeks of conception.

Section 316.1- Charge- The trial Court did not frame charge against accused no.3 for the offence under Section 312 of the IPC, 1860. Because the offences from sections, 312 to 318 are of similar nature, type and category, they are all relating to miscarriage. Secondly, the punishment prescribed under section 316. Because the punishment prescribed is up to 10 years if the act causes death of quick unborn child. The maximum punishment prescribed under section 312 is seven years if the woman be quick with child.

Section 317- Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Explanation- This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.

COMMENT- This section is intended to prevent the abandonment or desertion by a parent of his or her children of tender years, in such a manner that the children, not being able to take care of themselves, may run the risk of dying or being injured. It does not apply when children are left under the care of others. It applies where a child is exposed and no death supervenes; if, however, death follows, the conviction must be under section 304. The offence is complete notwithstanding that no actual danger or risk of danger arises to the child’s life.

Section 317.1 Ingredients- The section requires three essentials-

  • The person coming within its purview must be father or mother or must have the care of the child.
  • Such child must be under the age of 12 years.
  • The child must have been exposed or left in any place with the intention of wholly abandoning it.

Section 318- Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child dies before or after or during its birth, intentionally conceals or endeavors to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

COMMENT- This section is intended to prevent infanticide. It is directed against concealment of birth of a child by secretly disposing of its body.

Section 318.1 Ingredients- This section requires-

  • Secret burying or otherwise disposing of the dead body of a child
  • It is immaterial whether such child dies before or after or during its birth
  • Intention to conceal the birth of such child  by such secret burying or disposal

Of Hurt (Aggravated Forms)

  • By dangerous weapons
  • To extort property or to constrain to do illegal act
  • By means of poison to commit offence
  • To extort confession, or to compel restoration of property
  • To deter public servant from his duty

Section 319- Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

COMMENT- The authors of the Code say:

Many of the offences which fall under the head of hurt will also fall under the head of assault. A stab, a blow which fractures a limb, the flinging of boiling water over a person assaults and are also acts which cause bodily hurt. But bodily hurt may be caused by many acts which are not assaults. A person, for example, who mixes a deleterious potion, and places it on the table of another; a person who digs a pit in a public path, intending that another may fall into it, may cause serious hurt, and may be justly punished for causing such hurt; but they cannot, without extreme violence to language, be said to have committed assaults. We propose to designate all pain, disease and infirmity by the name of hurt.

The definition of hurt appears to contemplate the causing of pain, etc, by one person to another. Pulling a woman by the hair was held to be this offence.

Section 319.1- Act neither intended nor likely to cause death is hurt even though death is caused- Where there is no intention to cause death nor knowledge that death is likely to be caused from the harm inflicted, and death is caused, the accused would be guilty of hurt  only if the injury caused was not serious. Where the accused with a view to chastising her daughter, eight or 10 years old, for impertinence, gave her a kick on the back and two slaps on the face, the result of which was death, it was held that she was guilty of voluntarily causing hurt. Where in course of sudden quarrel the accused hit his friend on his head with a stick weighing only 210 grams which unfortunately proved fatal, it was held that no knowledge of death could be ascribed to him. His conviction was accordingly changed to one under section 323, IPC, 1860.

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