Introduction
The offences relating to children include causing of miscarriage, injuries to unborn children, abandonment and exposure of infants and concealment of births and secret disposal of dead bodies of children.
PART A
CAUSING MISCARRIAGE
Section 312. Causing miscarriage.
Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Explanation—A woman who causes herself to miscarry, is within the meaning of this section.
Section 313 Causing miscarriage without woman's consent.
Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 3[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 314 Death caused by act done with intent to cause miscarriage.
Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
if act done without woman's consent.—and if the act is done without the consent of the woman, shall be punished either with 3[imprisonment for life], or with the punishment above mentioned.
Explanation.—It is not essential to this offence that the offender should know that the act is likely to cause death.
Section 312-314 deals with causing miscarriage and aggravated form of the offence, where miscarriage is caused without the consent of the woman and where it results in the death of the woman.
ESSENTIAL INGREDIENTS
Voluntarily Causing Miscarriage
The provision is applicable to cases where the miscarriage is voluntarily caused and not as a result of any accident or mishap. 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. It includes such acts as administering medicine to a pregnant woman which causes abortion.
Woman with Child and Woman Quick with Child
The section use the terms ‘woman with child’ and ‘woman quick with child’. The meaning of the words ‘woman with child’ simply means a pregnant woman. The moment a woman conceives and the gestation period or the pregnancy begins, then the woman is said to be with child.
However, the. Factum of pregnancy is an essential ingredient. If a woman was under a misconception that she was pregnant and took an abortive pill and another helped her, neither of them are guilty because she was not pregnant in the first place.
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’. So, in the former, the prescribed punishment is simple or rigorous imprisonment for a term up to seven years and fine, whereas in the latter, the term of imprisonment extends to a term up to three years (with fine or both).
Miscarriage
The term ‘miscarriage’ is nowhere defined in the IPC. The word ‘miscarriage’ is used synonymously with the word ‘abortion’. As per Modi’s Medical Jurisprudence, ‘legally, miscarriage means the premature expulsion of the product of conception, and ovum or a foetus from the uterus, at any period before the full term is reached’. Medically, three distinct terms, namely, abortion, miscarriage and premature labour, are used to denote the expulsion of a foetus at different stages of gestation. The term ‘abortion’ is used only when an ovum is expelled within the first months of pregnancy, before the placenta is formed. ‘Miscarriage’ is used when a foetus is expelled from the fourth to the seventh month of gestation, before it is viable, while ‘premature labour’ is the delivery of viable child, possibly capable of being reared, before it has become fully mature.
Act of doctor 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.
Consent of Woman
Section 312 of the IPC envisages a situation where the miscarriage is caused with the consent of the woman. Thus, the woman herself, whose miscarriage was caused, is also liable to be punished under the section. An offence under this section shall be punished with imprisonment of either description which may extend to seven years and shall also be liable fo fine. if, however, the same offence of causing miscarriage is done without the consent of the woman, it is considered a much more graver offence and as per section 313. it is punishable with imprisonment for life or with imprisonment or either description for a term which may extend to ten years and fine. However, under section 313, the person procuring the abortion alone is liable to punishment whereas under section 312 the woman is also liable for punishment.
Causing of Miscarriage Resulting in Death of Woman
Causing the death of the woman, while causing miscarriage, is a further aggravated form of the offence described earlier under section 312 and 313. As per section 314 of the IPC, when an act Is done with the intention of causing miscarriage, but which acts results in death, then it is an offence liable for imprisonment for a term up to ten years. As per this provision. It is sufficient if the intent is only to cause miscarriage and not death. In other words, intention to cause death is not an essential element of this crime. It is sufficient to show intention to cause death is not an essential element of this crime. it is sufficient to show that an act which is carried out with intent to cause miscarriage resulted in the death of the woman, to bring home the offence under this section. A direct nexus between act done by the accused and the death of the woman needs to be proved. The explanation to the section provides that it is not even essential that the offender should know that the act is likely to cause death.
Under section 314, if the miscarriage resulting in the death of the woman is done without her consent, then the punishment prescribed is harsher which can include the imprisonments.
Exception
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 this section. He is liable if the abortion is not carried out in good faith for saving life of the pregnant woman.
​In one case, a surgical operation for abortion was performed by a quack on a woman with her consent. The woman died due to perforation of her uterus. The Trial court acquitted him. On appeal, the Kerala High Court found him guilty under section 314. IPC, and imposed a sentence of rigorous imprisonment for a period of four years and a fine of Rs 5,000, to be paid to the son of the deceased. On a further appeal, the Supreme Court confirmed the conviction under section 314, but reduced the sentence of four years rigorous imprisonment to two months imprisonment already undergone and instead enhanced the fine of Rs 5,000 to Rs 1,00,000 to be deposited in the name of the deceased’s minor son.
In State of Maharashtra V Flora Santuno Kutino, one of the respondents, who had illicit relation with a woman and pregnated her, was instrumental in causing miscarriage. When she died because of excessive bleeding, he, with the other respondents buried her. But the trial court acquitted him. On appeal, the High Court convicted him on the ground that the miscarriage was not in good faith for saving life of the deceased. It was carried out for wiping of his illicit relationship.
​However, in order to provide for safe abortions, termination of certain pregnancies by registered medical practitioners has been legalized with the enactment of the Medical Termination of Pregnancy Act 1971 (34 of 1971). Under this Act, a woman can legally get her pregnancy terminated by a registered medical practitioner, if, the continuance of her pregnancy would cause risk or injury to her life, either physical or mental, or if the foetus reveled abnormalities. The Act further provides that if pregnancy is as a result of the rape or due to failure of contraception methods, it would constitute injury to the mental health of the pregnant woman. After the enactment of the Act, the provision relating to miscarriage, thus, have become subservient to the Act because of the non-obstance clause in section 3, which shows abortions or miscarriage by a registered medical practitioner under certain circumstances. It, in general, provides guidelines for, and limitation of, termination of pregnancy.
PART B
INJURY TO AN UNBORN CHILD
Section 315 Act done with intent to prevent child being born alive or to cause it to die after birth— Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
Section 316 Causing death of quick unborn child by act amounting to culpable homicide.—Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Illustration
A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section
ESEENTIAL INGREDIENTS OF SECTION 316
Act to be before the birth of the child
One of the essential ingredients of an offence under these two section is that the culpable act or the actus reus should be done before the birth of the child. The act done before the birth of the child should result in preventing the child from being born alive or cause it to die after his birth. If the act of killing the child is done after its birth, this section is not attracted, because it will then be a case of murder or culpable homicide. It is only injury caused to an unborn child which is covered by this section.
Intention
Another important ingredient or element of an offence under section 315is that the act should be done with the intention of preventing the child from being born alive or cause it to die after its birth. If the act is done in good faith for the purpose of saving the life of the mother, then no offence is made out.
Causing Death of Quick Unborn Child by Act Amounting to Culpable Homicide
Section 316 is a grave variation of section 315. In both these sections, the offence contemplated is death of an unborn child. Under section 315, the offence contemplated is death of an unborn child. Under section 315, the act is done with the intention to cause the death of the unborn child. But under section 316, the act id done with the mens rea or the intention to commit culpable homicide (presumably of the mother), which acts though does not result in the actual death of the mother, but results in the death of the quick unborn child.
Merely causing death of the quick unborn child is not sufficient. The prosecution has also to prove that the accused acted with the necessary intention to cause the death of the victim.
If the act of the accused actually results in the death of the victim mother, then the offences committed will be culpable homicide.
PART C
ABANDEONMENT AND EXPOSURE OF AN INFANT
Section 317 Exposure and abandonment of child under twelve years, by parent or person having care of it.—Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Explanation—This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child die in consequence of the exposure.
Essential ingredients of Section 317
Child to be Under twelve Years
Section 317, IPC, is applicable only where the exposure or abandonment is of a child below twelve years of age. This section is meant to protect the interest of children below twelve years of age, because they are not in a position to protect themselves. The primary responsibility is cast on the parent and adults, who may have the custody of the child to bring up the child and to provide adequate case for children of tender age. It applies equally to legitimate and illegitimate children.
Responsibility is on Both Father and Mother or Person Having Care of Such Child
It is interesting to note that as per the Guardians and Wards Act 1890, the father is the natural guardian of the child and the mother’s status is only after that of the father. However, as far as section 317 is concerned, the provision makes both the father and mother equally duty bound to care for the child. The section makes no difference between children born in wedlock or outside the wedlock.
Exposing or Learning with Intention to Abandon
The gist of this section is exposing or leaving the child with intention to abandon. The words expose or leave mean leaving the child in danger, neglecting the child and not giving the child adequate protection from natural elements like cold, beat and other hazards.
The section further stipulates that the exposing or leaving of the child should be accompanied with ‘intention or abandon’. The phrase ‘to abandon the child’ in its ordinary usage means something more than leaving the child behind. It means leaving the child without protection. The word ‘ must be read along with or read ejudem generis with expose.
It does not mean merely temporarily and physically leaving the child, it should be with intention to leave it to its fate.
Death of Child As a Consequence of the Exposure
When the exposure and abandonment of the child under twelve years of age, results in its death, then the father, mother or persons in whose care the child has been left in, will be liable for murder or culpable homicide as given in the explanation to the section.
However, such death of the child should be as a consequence of the exposure. The unlawful exposure of the child should directly cause death and should be done with the knowledge that it likely to cause death, only then the explanation to the section will apply. A woman deserted her illegitimate child of ten days under circumstances where the child could and did obtain food. However, the child died of natural causes after four days. It was held that the mother was not guilty of murder.
PART D
CONCEALMENT OF BIRTH OF A CHILD
Section 318 Concealment of birth by secret disposal of dead body—Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavors to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both
Essential Ingredients of Section 318
Secret Disposal of Bodies of Children
There is a general policy adopted in almost all the countries of the world that there is full publicity given to birth and deaths. In India, we have the Registration of Births and Death Act, 1969, which make it compulsory on the party of every person to register every birth and death with the local authorities. Birth and death certificates are essential for many civil transactions. One of the main principle behind this section is to detect and if possible, prevent infanticide.
In India, where birth of a girl child is still considered a curse and a burden, female infanticide is very high. In most such cases, the body of the child is secretly disposed of.
The body of the child may be secretly buried or ‘otherwise dispose of’, meaning cremated, thrown into river, wells, or left in forest for wild beasts to eat.
Dead Body of Child
As per this section, the secret burying or disposal should be of the ‘dead body of the child’. This means that the child should not be in the stage of a mere embryo or foetus, but should have reached such a stage of development and maturity that it may be born alive and be capable of living. The word ‘body’ indicates that the foetus must have developed in the mother’s womb into a human shape. Further, the child should be dead, If the child were alive at the time of secret disposal, then no offence under this section is made out.
Conceals or Endeavours to Conceal Birth
The secret disposal of the body of the child should be with the intention to conceal or attempt to conceal the birth of the child.
Thus, when the birth of a child to a widow was known to all the villagers, then it cannot be inferred that the disposal of the body was with the intention to conceal the birth of the child. Similarly, when the births of the child took place in a hospital and was attended to by nurses and for at least 24 hours, the birth of the child was known to a number of persons, and it was held that there was no concealment of birth.
It may be noted that all the offences enumerated in these sections are accentuated by the social pressures and value-based judgments made on unwed mothers. Though in all cases of pregnancy, a man is also equally responsible, unfortunately,it is the woman alone who faces the social stigma and social ostracisation. It is these circumstances of social excommunication. Very often these abortions are carried out clandestinely, under unhygienic conditions, and by quacks or midwives, which put the woman’s life to risk. Again, the abandoning of children or infanticide
is mostly only in respect of girl children, because of the social pressures where birth of a girl child is considered a burden and both the mother and child are castigated.
Unless this social attitude changes and social reforms are brought in good measure, all of us at large hold a moral responsibility for these offences committed against unborn children.