Law related to Abortion – part 1

ABSTRACT

The project work basically talks about the miscarriage which is related to women in India and lays special emphasis on Sections 313 and Sections of IPC which are related to punishments for miscarriage. This project basically talks about the detailed study of miscarriage in India, punishments which are related to it and also talks about whether they are non-bailable or not. In India, there is dearth of statistical data on still birth, miscarriage and induce abortion. In addition to this, data on miscarriage on first, second and third trimester among unskilled daily wage women workers is lacking in India. Women even in their early age (20 to 30 years) suffers from physical, emotional and social trauma that are associated with still birth, miscarriage or induce abortion.

Miscarriage among workers can be due to multiple factors such as nutrition, environmental factors, occupational factors, individual health status, socio-economic and demographic factors as well as various clinical parameters are associated. Women involved in manual labor with low socio economic status bear triple burden such as domestic, economic and work related responsibility which make them more vulnerable. Women with low socio economic status live in poverty with lack of basic amenities, low wage and lack of social security In addition to this, there is poor housing, unhygienic living conditions etc and hence they are the main culprits which results in the miscarriage among women in India. In this project we will we be discussing about different sections in IPC related to miscarriage and laws which are made and will also discuss the case laws related to it and finally end with the conclusion.

KEYWORDS-  [Miscarriage, Sections Related To Miscarriage, Laws Related To Miscarriage, Famous Case Laws Related To Miscarriage]

INTRODUCTION- When is ‘causing a miscarriage of a pregnant woman’ crime?

It is a crime when all the following facts occur:-

  • Miscarriage is voluntarily (willingly) caused and not as a result of any accident or mishap

For instance, administering medicine to a pregnant woman, thereby causing her miscarriage

  • The miscarriage was not caused in good faith (e. there was no thought of saving the life of the pregnant woman while causing the miscarriage)
  • The pregnant woman did not consent to the miscarriage

For instance, when a pregnant woman visits a doctor for regular check-up, the doctor inserts a needle inside the abdomen of the lady (as a part of some test) leading to a septic and then a miscarriage. In this case, the woman never visited the doctor for causing of miscarriage but for the test. Yet, miscarriage is what she ultimately suffered. In this case, the woman can consider filing a complaint against the doctor under Section 313 of IPC.

Issue of Consent

There is another possibility. The pregnant woman herself may give consent to the causing of miscarriage. For example, a pregnant woman, to get rid of the unborn girl child, may give consent to her miscarriage. In that case, the woman would also be punished under Section 312, together with the doctor causing such miscarriage. At times, a woman may give the consent to the miscarriage out of necessity. In such cases, the woman is generally not punished. For instance, if a pregnant woman is attacked/ assaulted by few persons, thereby resulting in such grave injury that the woman, against her desire, gives consent for miscarriage, then the woman is not likely to be punished. These types of cases are covered by Section 313 of the IPC.

To conclude, two types of situations are likely to arise whenever miscarriage has been caused to a pregnant woman: (a) the woman consented to the causing of miscarriage and (b) the woman did not consent to the same. The first situation would be governed by Section 312 of the IPC and the latter by Section 313.

In addition to the above, there is another possibility. A pregnant woman may herself consents to the causing of miscarriage because the pregnancy is posing severe risk to her mental and physical health. However, such miscarriage would be a crime under the IPC (Section 312) because it is not caused for the purpose of saving the life of the pregnant woman. In fact, for this sort of miscarriage, both the pregnant woman and the doctor can be punished. In this situation, the pregnant woman can consider filing an application under the Medical Termination of Pregnancy Act, 1971 (MTP Act, 1971). Under this Act, a pregnancy can be terminated when it poses severe risk on the physical and mental health of the pregnant woman.

Punishment for the crime

If the miscarriage was caused with the consent of the pregnant woman then,

  • Imprisonment which may extend to three years or with fine or both
  • Imprisonment which may extend to seven years and fine if the woman is in advanced staged of pregnancy (this stage under the IPC is referred to as “woman being quick with child”

Miscarriage caused without the consent of the pregnant woman, then

  • Imprisonment for life
  • Imprisonment which may extend to ten years an fine

Who will be punished for the crime? If the miscarriage was caused with the consent of the pregnant woman, then

  • The person causing the miscarriage and
  • The pregnant woman

Miscarriage caused without the consent of the pregnant woman

Only the person causing the miscarriage

Case decided which one of the above punishments would be applicable in a particular case

The punishment imposed would depend upon the stage of pregnancy. If the pregnancy was in initial stage, then the lesser punishment is imposed (maximum three years with fine). On the other hand, higher punishment is imposed if the woman was in advanced stage of pregnancy (up to 7 years and fine).

The punishment in case of Section 313 would depend upon the facts and circumstances of each case.

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