Causing of miscarriage, injuries to unborn children,

exposure of infants and the concealment of birth.

Introduction
It is a natural thing that one who has taken birth has to die, but an act leading to the death of an
unborn or newborn child is not cogitable. One of the very probable reasons for the said offence is the
desire of having a male child as it is considered that a male child will take care of his parents in their
older days. It is a harsh reality that we live in a country where goddesses are prayed but girl children
are killed in the womb or in their very starting days of birth.

Also, India is ranked 102 in hunger index as of 2019 Global Hunger Index Results. 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.

Offences against unborn and newborn Child

The offences related to the homicide of unborn or newborn child are dealt in Sections 312 to 318 of
Chapter XVI of the Indian Penal Code, 1860 i.e., causing miscarriage, act done with intention of
causing death, causing death, exposure or leaving of a child with the intention to abandon &
concealing birth by secretly disposing of a dead body.

Causing Miscarriage
The term ‘miscarriage’ is not defined under this code. In legal terms, miscarriage refers to the
deliberate termination of woman’s pregnancy (expulsion of human fetus) before entire
development of the child (generally between 12th to 28th weeks of pregnancy). It can also be
referred as spontaneous abortion.

These offences are defined under Section 312 to 314 of the Code. It deals with causing of
miscarriage on the basis of its gravity. The punishment under section 312 differs for ‘woman with
child’ i.e., being pregnant Queen-Empress v. Ademma ((1886) ILR 9 Mad 369).and ‘quick with
 child’ i.e., advanced stage of pregnancy when movement of fetus can be felt In Re: Malayara
Seethu vs Unknown (AIR 1955 Kant 27).

but the punishment under section 313 has no effect whether the lady was ‘with child’ or ‘quick with
child’. Punishment also differs with the element consent of the women. Miscarriage under section 312
is bailable, non-cognizable and non-compoundable but Miscarriage under section 313 is non-bailable,
cognizable and non-compoundable.

The essentials to constitute the offence of miscarriage under Section 312 and 313 are as
follows:

1. Voluntarily causing a woman to miscarry;

2. Causing miscarriage without women’s consent; or
3. Miscarriage is not done in good faith to save life of women.

Punishment for Miscarriage

‘woman with Imprisonment up to three years or

child’ fine or both.
Section 312 (Voluntarily doing
Miscarriage)
‘quick with Imprisonment up to seven years and
child’ fine.

Section 313 (Miscarriage without Imprisonment for life or imprisonment

women’s consent) up to ten years and fine.

In the case of Sharif v State of Orissa, 1996 Cr LJ 2826 (Ori). It was held that termination of
pregnancy of a minor girl does not attract Section 312 as the same was done in order to save her
mother’s life. The accused haven’t instructed the minor to go for termination of pregnancy but the
minor went on his own to avoid the shame in society.

Death of women during Miscarriage

It is provided under Section 314 of IPC. Having knowledge of the consequence is not essential for an
act to fall under this section. If miscarriage was being done with the consent of women then it can be
punished with imprisonment up to three years and fine. But, if miscarriage was done without the
consent of women then punishment can extend up to life imprisonment or imprisonment up to three
years and fine.
Exception to Miscarriage

 Medical Termination of Pregnancy Act, 1971: The objective of the act was to eliminate
the excessive large number of illegal abortions. Section 3 of the Act lays down the grounds
under which the pregnancy can be terminated by registered medical practitioners i.e., when
life of women is at risk, pregnancy due to rape, threat to mental and physical health of
women, risk of abnormal or handicapped child to be born out, failure of precautionary tools
used by couples to limit number of children.

It also provides that if the length of pregnancy does not exceed the period of 12 weeks, then
termination of pregnancy can be done by a medical practitioner but if the length of pregnancy is in
between 12 to 20 weeks then two medical practitioners are required.

In the case of Suchita Srivastava v. Chandigarh Administration (2009) 14 SCR 989, it was held
that if the termination of pregnancy was done in accordance to the provisions of MTP Act, 1971, the
same would not constitute an offence.

 Good Faith: If miscarriage is done in good faith (as under Section 52 of IPC), it will not
constitute an offence.

In the Case of Dr. Jacob v. State of Kerela 1994 SCC (3) 430 , the charges against the doctor was
upheld by the Supreme Court and held that a person can be held liable for abortion if the same was
not done in good faith for saving the women’s life.

In the case of State of Maharashtra v. Flora Santuno Kutino 2007 (109) Bom L R 652, the
accused had an illicit relationship with the lady who later became pregnant. Accused, to hide the proof
of their relationship tried her miscarriage to be done in which she died. The accused was held liable as
the miscarriage was not done in good faith.

Injury to Unborn Child

Sections 315 and 316 are related to the birth of an unborn child. Section 315 is aimed at foeticide
i.e., a condition in which the fetus in the womb takes a human form (normally in six months). The
difference with infanticide is that infanticide is committed after delivery but foeticide can be committed
before delivery. The offence under section 315 is non-bailable, non-cognizable and non-
compoundable

Essentials of Section 315 are as follows:

1. Act must be done before the death of the child;

 2. Intention to prevent child from being born alive or to die after death;
3. Child not be born alive or the death of a child after its birth.

Exception: Act done in good faith to save the life of mother won’t come under this section.

In the case of Alka Verma v. State 129 (2006) DLT 642, the accused were charged with Section 315
of IPC despite the child having taken birth. It was held by the Delhi High Court, that when the child
has taken birth, the accused cannot be charged u/s 315.

In the case of Hirdanbai and Others v. State of Maharashtra AIR 1966, the accused was acquitted
of the charge under 315 of IPC and the court held that there must be sufficient proof that the
accused has done such an act to prevent the child from being born alive or to die after death and the
act done must result in child not being born alive or death of child after his birth. Then only a person
can be acquitted under Section 315 of IPC.

Section 316 is a much graver section. It is done with intention or knowledge to commit an offence of
culpable homicide (against mother), to cause the death of quick unborn child and is punishable for a
term of imprisonment up to 10 years and fine, but if the act causes the death of the mother, then the
person will be punishable for culpable homicide. It is non-bailable, cognizable and non-compoundable.

It can be read along with Explanation 3 of Section 299 of IPC. It states that liability under culpable
homicide does not arise if a child dies inside the mother’s womb, but it arises when any party of the
child’s body has come out.

In the case of Jabbar v. State AIR 1966 Allahabad 590, it was held that an act comes under the
purview of Section 316 only when the act was done with intention or knowledge to commit an act of
culpable homicide against the mother. Only on the basis that acts were directed towards the mother
and death of a quick unborn child has taken place, a person cannot be held liable under the present
section. It was further observed that if the act would have been done with knowledge or intention to
commit the act of culpable homicide against the mother, and even the mother would have survived
but the child in the womb died, then it would constitute an offence under the present provision.

Abandonment and Exposure of an Infant

Section 317 of the IPC deals with the exposure or leaving of a child with intention of deserting. The
offence under the present section 317 of IPC is bailable, cognizable and non-compoundable. The terms
‘expose and leave’ means not giving the child proper protection i.e., food, shelter etc., leaving the
child in danger.

The Section requires the following essentials:

 1. The person in question must be father, mother or person taking care of child;
2. The child must be under 12 years of age; and
3. The child must be intentionally be exposed or left in a place for deserting.

This provision gives equal importance to schools, orphanages as they are duty bound to take care of
the child. The punishment under this provision can extend up to imprisonment of seven years or fine
or both.

The explanation of the section provides that if the act of leaving the child or exposing him with an
intention to desert the child, if the death of the child occurs, the person accused shall be held liable for
murder or culpable homicide as the case may be.

Illustration: ‘A’ is the illegitimate child of a lady. She deserted the child as to circumstances that he
does not obtain food for 5 days. The child dies the next day due to natural death. Here, the lady can’t
be made liable under murder.

Concealment of Birth of a Child

Section 318 of the IPC, deals with the persons accused of concealing the birth of the child by secretly
disposing or burying the dead body of the child. It is punishable with imprisonment up to two years or
fine or both.

The essential elements of the section are as follows:

1. Intention to conceal the child’s birth;

2. Secretly burying or disposing the dead body of the child; and
3. The child may die before, during or after its birth.

In the case of State v. Kehari Singh AIR 1952 MP 124, the accused was acquitted of the charge as
the court held that when the birth of the child had taken place, it was known to most of the villagers
and disposing of the dead body of the child is not with the intention of concealing his birth and hence
the accused can’t be made liable under Section 318 of IPC.

In the case of Radha v. State of Rajasthan 1973 (6) WLN 709, it was held that if the child is alive at
the time of secretly disposing, no offence under this section will be made out.

Conclusion
The MTP Act, 1971 was enacted long ago and with changing time changes should be introduced. It
provides that termination of pregnancy should be done within 20 weeks but in many cases the
abnormalities in foetus come in light after 20 weeks and it also happens sometimes in cases of rape.
Also, there is ambiguity when unmarried couples despite using the precautionary tools, the lady turns
to be pregnant. Also, the government has enacted the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, so that gender of child is
not known before birth. This has definitely led to decrease of killing of girl child inside womb but
still, the stereotypical people illegally come to know about the sex of child in womb through corrupt
doctors. The government is also taking various other actions.