(This is a guest post by Ananya Kumar)
Under the Indian Penal Code 1860 (IPC), causing the death of a foetus was a criminal offence, even if done with the consent of the mother. The adoption of the Medical Termination of Pregnancy Act (MTPA) in 1971 created an exception to this. It allowed registered medical practitioners to terminate pregnancies with the mother’s consent, i.e., to carry out abortions. The IPC continued to penalise acts done with criminal intent to harm the foetus, or the mother, or both, i.e., the offence of causing miscarriage. Now, Sections 88 to 92 of the Bharatiya Nyaya Sanhita 2023 (BNS) prescribe punishment for the offence of causing a woman to miscarry without her consent in its varying forms in the same manner as the IPC.
Despite this statutory framework, a fundamental issue remains unresolved. Neither the MTPA, nor the BNS define ‘miscarriage’, and how it differs from ‘abortion’. Consequently, courts assume that both abortion and miscarriage entail the expulsion of a foetus from the womb before its term with the intent of causing its destruction, the only difference being that the former is done with the mother’s consent (see para 4).
However, miscarriage and abortion have significant differences and implications, beyond mere consent. For instance, miscarriages happen spontaneously and can sometimes lead to the death of a foetus inside the womb without it getting expelled. Yet, as things stand, courts have interpreted ‘miscarriage’ under the IPC to necessarily require expulsion. Consequently, courts have incorrectly dismissed charges of the offence of causing a foetus’ death on the grounds that it was not expelled from the womb.
In this blog, I highlight how the law has wrongly assumed that expulsion of the foetus is a necessary element for the offence of causing miscarriage. I then point out cases where this has led to the acquittal of probable offenders for causing miscarriage. Accordingly, I suggest two interpretations through which courts can correct their approach towards interpreting the offences of causing miscarriage, in the absence of legislative action.
The Difference between Miscarriage and Abortion
In medical sciences, miscarriage is also referred to as ‘spontaneous abortion’. By contrast, what we ordinarily call abortion is called ‘induced abortion’. It is perhaps this terminology that has led courts to conclude that principally, the only difference between miscarriage and abortion is the non-consensual and spontaneous nature of miscarriage.
For instance, Modi’s Medical Jurisprudence And Toxicology (10th edn, 1949) explains that when a woman consents to the expulsion of the foetus from her body, it is abortion. On the other hand, when a foetus is made to be expelled from a woman’s womb without her consent, it is termed as miscarriage (see page 319). In light of this, even when Parliament has defined miscarriage, in social security legislations, it has described it as the ‘expulsion of the contents of a … uterus’ (see, Maternity Benefit Act 1961 and the Code on Social Security 2020). This definition replicates the same error courts have been interpreting under criminal law.
The Supreme Court in Dr. Jacob George v State of Kerala (1994) relied on this explanation to state that the distinction between abortion and miscarriage is ‘not material’ for the purposes of the IPC so long as there is an intent to cause miscarriage (para 5). However, the difference between spontaneous and induced abortion cannot be reduced to the presence or absence of consent alone.
There are many circumstances and complications that lead to different kinds of spontaneous abortions that do not have similar characteristics to abortions. Sometimes, complications in miscarriages, can lead to death of the foetus in-utero, without the expulsion of the products of conception. This type of miscarriage is called an ‘incomplete’ or a ‘missed’ miscarriage. This is why, equating miscarriages to ‘abortions with consent’ can miss the complicated reality of miscarriages.
Another distinction between the two is the intent behind the act. Abortions are done with the deliberate intent of terminating and removing the foetus from the womb. However, it is not necessary that an offence is committed against a woman with the specific intent of bringing about the expulsion of the foetus. The intention may simply be to cause harm or death to the mother, or the foetus. In some cases, the child may die in-utero due to extraneous circumstances like shock, stage of foetal development, or death of the mother. Therefore, courts should recognise that miscarriages can also take place without the expulsion of the foetus.
Case Dismissals Due to the Expulsion Requirement
Courts have previously dealt with cases of incomplete or missed miscarriages under Sections 312 and 314 of the IPC. The interpretation by the courts in these cases shows flawed reasoning that has led to the acquittal of probable offenders, only due to non-expulsion of foetus from the mother’s body.
For example, in Prasoon Kumar Jaiman (2017) before the High Court of Rajasthan, the petitioner was accused of causing miscarriage (Sec 313) where there was no expulsion of foetus from the mother’s womb. However, the Court held that no offence was made out due to a ‘lack of medical evidence’ proving miscarriage. The ‘lack’ here referred to the fact that the foetus had not been expelled from the mother’s body, which had been termed by the doctor as a ‘missed abortion’ (page 3).
Along similar lines, the judgment of the High Court of Chhattisgarh in Rajesh Kumar (2024) was another case where the expulsion requirement was misused by the accused. There the accused had allegedly administered a poisonous liquid to the mother with the intent to kill the foetus conceived outside marriage. The mother died soon after. In the autopsy, it was found that the foetus had died inside the womb before the mother, without getting expelled. The Court observed that causing miscarriage necessarily requires the expulsion of foetus (para 14). Since no such expulsion had occurred, the accused were acquitted on the charges under Section 312 and 314 of the IPC (Sections 88 and 90 of BNS). These cases demonstrate how the absence of a definition of miscarriage, as well as the judicial insertion of the expulsion requirement, allows perpetrators to evade culpability.
Avoiding Miscarriage of Justice
The most straightforward resolution to this issue would be for the legislature to introduce a statutory definition of ‘miscarriage’ in the BNS, one that does not make expulsion of the foetus a necessary requirement. A definition that instead focuses on the death of the foetus before term, whether or not followed by expulsion, would bring penal law in line with medical reality.
Alternatively, so long as there is legislative silence on the definition of miscarriage under the BNS, courts can prevent its abuse through two approaches. First, by interpreting the offence in a manner consistent with its medical meaning. Alternatively, by proceeding against perpetrators under other offences.
Firstly, as established above, miscarriages differ from induced abortions for more reasons than just consent. Keeping this in mind, interpretation of ‘miscarriage’ for the specific purpose of these crimes must be in line with the medical realities of their outcomes. Thus, the focus of the definition of miscarriage and abortion should not be on the expulsion of the foetus. Both aim to destroy the foetus inside the womb of the mother before the completion of the gestation period. Thus, regardless of whether there has been an expulsion of the foetus or not is not relevant for establishing the crime of causing miscarriage. The death of the foetus before term should be enough to meet that threshold.
Secondly, pending an authoritative reinterpretation of miscarriage by a larger bench, two alternative charges may be available to prosecutors in cases where there has been no expulsion. The foremost is Section 62 of BNS, which criminalises attempt to commit a crime. Thus, even if an offence of causing miscarriage is not made out on grounds of non-expulsion, offenders may still be tried for attempting to cause miscarriage with criminal intent if evidence is found.
The other alternative is Section 91, which punishes the act of ‘preventing a child from being born alive’ amongst others. Unlike the miscarriage provisions, Section 91 makes no reference to miscarriage or expulsion. While no court has applied Section 91 to situations of missed miscarriages yet, a textual interpretation of this Section would be wide enough to cover cases of intrauterine foetal death.
Conclusion
By equating miscarriage with abortion for legal purposes, legislators and courts have overlooked the medical realities of miscarriage and in doing so, unreasonably narrowed the scope of criminal liability. This approach has serious consequences, as it allows individuals who have caused the death of a foetus with mala fide intent to evade culpability simply because the foetus was not expelled from the womb. Prior precedents demonstrate how absence of a statutory definition of miscarriage has become a loophole that undermines the objective of the law.
An interpretation of ‘miscarriage’ that focuses on the death of the foetus in-utero rather than its expulsion from the womb would resolve this inconsistency. Pending such a reinterpretation by a larger bench, the alternative routes available under Sections 62 and 91 of the BNS offer prosecutors a meaningful, even if not entirely ideal, path forward. Change in this area will require courts to look to the harm the provisions were designed to prevent.
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