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Punishment for Causing Miscarriage with the consent of the victim (Section 312 of IPC)

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A woman who causes herself to miscarry, is within the meaning of this section.”

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The following are ingredients of section 312

1) Voluntarily causing a woman with child to miscarry;

2) Such miscarriage should not have been caused in good faith for saving the life of the pregnant woman.

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 effect. Thus, intention to cause miscarriage or mens rea is an essential ingredient of the offence.

‘A woman with child’ means a pregnant woman. The moment a woman conceives and the gestation period or the pregnancy begins, then a woman is said to be with child.

The term ‘quick with child’ refers to a more advanced stage of pregnancy. ‘Quickening’ is the perception by the mother that the movement of the foetus 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 miscarriage of a woman ‘quick with child’ is considered a much graver offence, than causing miscarriage of a ‘woman with child’.

Miscarriage technically refers to spontaneous abortions, whereas the voluntary causing of miscarriage, which forms the offence under the Code stands for criminal abortion.

Section 312 makes voluntary miscarriage an offence in two situations: (i) when a woman is with child for which punishment is imprisonment of either description for a term which may extend to three years, or with fine, or with both; and (ii) when a woman is quick with child for which the punishment is imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The explanation to Section 312 makes it clear that the offender could be the woman herself or any other person. In Re Ademma [(1886) ILR 9 Mad. 369], a woman was charged for causing herself to miscarry, though she had been pregnant for only one month and that there was nothing which could be called as a foetus or child.

The lower court acquitted the woman, taking a lenient view of the matter. The High Court, however, held the acquittal is bad in law, and emphasised that it was an absolute duty of a prospective mother to protect her infant from the very moment of conception

A person who aids and facilitates a miscarriage is liable for the abetment of the offence of miscarriage under Section 312 read with Section 109 of the Code, even though the abortion did not take place. A person who aids and facilitates a miscarriage is liable for attempt to commit abortion under Section 312 read with Section 511, IPC.

Section 312 permits abortion on therapeutic (medical) grounds in order to protect the life of the mother. Acts of doctors and nurses which facilitate or accelerate delivery cannot be treated as offences under these provisions, for the reason that otherwise, the delivery would have been delayed; particularly when the child is born alive and no injury is caused to the mother or the child.

Section 312 exempts persons who cause miscarriage in good faith for the purpose of saving the life of the woman. In such situations, the person is not liable under Section 312.

For more information relating abortion permitted please see ‘Medical Termination of Pregnancy Act, 1971, & Rules 1975, ‘Pre-natal Diagnostic Techniques (Protection of Sex Selection conception and Misuse) Act, 1994 (See the book “Women & Law” written by the same author).

The offence under Section 312 is non-cognizable, non- compoundable, but bailable and shall be enquired by a Magistrate of the first class.

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