Offences Causing Miscarriage Under BNS

In India, the act of causing miscarriage is recognised as a serious criminal offence under the provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS). Miscarriage can be both physically and emotionally distressing for a woman, particularly when it results from the wrongful actions of another party. The legal provisions related to offences causing miscarriage are enshrined in Chapter V of the BNS, which deals with offences against women and children.

Understanding Miscarriage

The term “miscarriage” is not explicitly defined under the BNS. However, in general terms, miscarriage refers to the termination of a pregnancy before the fetus is viable. It can occur naturally due to hormonal or biological issues or can be induced intentionally through various means. When miscarriage is induced with malicious intent, it constitutes a punishable offence under the BNS, and the victim has the right to file a complaint against the perpetrator.

Legal Provisions for Offences Causing Miscarriage Under BNS

Section 88: Causing Miscarriage

Section 88 of the BNS states that any individual who voluntarily causes a woman to miscarry, unless it is done in good faith to save her life, shall face punishment. The section provides the following penalties:

• If the woman is not far along in pregnancy, the offender can face imprisonment for up to three years, a fine, or both.
• If the woman is “quick with child” (advanced stage of pregnancy), the punishment increases to seven years imprisonment, along with a fine.

Explanation: The law also extends to cases where a woman induces her own miscarriage, making self-induced miscarriage punishable under this section.

Legal Classification:

• Non-cognisable: Police cannot arrest without prior court approval.
• Bailable: The accused has the right to seek bail.
• Triable by: Magistrate of the first class.

Section 89: Causing Miscarriage Without Woman’s Consent

Section 89 addresses the serious offence of causing miscarriage without the woman’s consent, irrespective of the pregnancy stage. The law prescribes stringent penalties for such offences:

• Punishment:
  • Life imprisonment, or
  • Imprisonment for up to ten years, along with a fine.

Legal Classification:

• Cognisable: Police can arrest without prior approval.
• Non-bailable: Bail is not a right and must be granted by the court.
• Triable by: Court of Session.

Section 90: Death Caused by Act Done with Intent to Cause Miscarriage

Section 90 focuses on scenarios where an attempt to induce miscarriage results in the woman’s death. The law provides for severe consequences:

• Clause 1: If the miscarriage attempt results in the woman’s death, the offender shall be punished with imprisonment of up to ten years, along with a fine.
• Clause 2: If the act is performed without the woman’s consent, the punishment increases to life imprisonment.

Explanation: The law does not require the offender to have prior knowledge that their actions could lead to death for the offence to be established.

Section 91: Act Done with Intent to Prevent Child Being Born Alive or to Cause Death After Birth

Section 91 criminalises actions aimed at preventing a child from being born alive or causing its death after birth. The provisions include:

• If an act is committed before the birth of a child with the intent to prevent birth or cause post-birth death, the offender faces:
  • Up to ten years imprisonment, a fine, or both.

Exception: If the act is done in good faith to save the mother’s life, the punishment may not apply.

Section 92: Causing Death of a Quick Unborn Child by Act Amounting to Culpable Homicide

Section 92 deals with situations where an act that would otherwise be classified as culpable homicide results in the death of a viable unborn child. The prescribed penalties are:

• Imprisonment of up to ten years, along with a fine.

Illustration: If a person knowingly harms a pregnant woman and the act results in the death of her unborn child but not the woman, the person is liable under this section.

Difference Between Abortion and Miscarriage

Landmark Judgements Related to Miscarriage Offences

• Rajesh Kumar v. State of Chhattisgarh (2024): The court held that causing miscarriage under IPC Section 312 only applies when the fetus is expelled before the gestation period is completed.
• Imtiaz Ismail Shaikh vs State of Gujarat (2008): The accused was convicted for causing miscarriage without the woman’s consent, reinforcing the legal protection for women’s reproductive rights.

Conflict with the Medical Termination of Pregnancy (MTP) Act

The Medical Termination of Pregnancy (MTP) Act, 2021, allows women to seek abortion under various conditions, including:

• Fetal abnormalities.
• Risk to the woman’s physical or mental health.
• Pregnancy resulting from rape or failure of contraception.

However, Section 88 of the BNS continues to impose restrictions, only allowing miscarriage when necessary to save the woman’s life. This creates a legal conflict, as the MTP Act grants broader autonomy to women over their reproductive choices. Moreover, recent rulings such as X v. State (NCT of Delhi) (2023) 9 SCC 433 further emphasise the need for harmonisation of laws to uphold women’s rights.

Conclusion

The BNS provisions on miscarriage aim to protect women from acts that threaten their reproductive health and autonomy. However, the laws reflect a conservative approach by criminalising even self-induced miscarriages, which stands in contrast to the progressive stance of the MTP Act. Women must navigate the complexities of these overlapping legal frameworks when seeking reproductive healthcare.

While the BNS seeks to uphold justice for victims of forced miscarriages, it is crucial to balance these provisions with evolving societal norms and medical advancements to ensure that women’s rights and health are prioritised.

The offence of causing miscarriage under BNS is categorised as cognisable and bailable, making it a significant legal matter requiring careful consideration by the judiciary and lawmakers alike.