A PROJECT

On
Miscarriage of Children

Subject: Law of Crime (IPC)

Supervised by: Submitted by:

Mr. Zeeshan Hashmi Bhuvnesh Vyas

Asst. Professor of Law Semester- VII, Sec- A

S.S. Jain Subodh Law College

Mansarovar, Jaipur
March, 2022

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 CERTIFICATE

This is to certify that the Project Assignment of Law of Crime entitled- “Miscarriage of
Children” submitted by Bhuvnesh Vyas of BA.LLB Semester- VII(A) for the partial
fulfilment of the requirements of the degree of BA.LLB in S.S Jain Subodh Law College,
Jaipur embodies the bonafied work done under supervision of Mr. Zeeshan Hashmi (Asst.
Professor of Law).

Place: Jaipur Signature

Date: 29/04/2022

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 DECLARATION

I hereby declare that the project entitled “Miscarriage of Children ” is submitted by me in

partial fulfilment of the requirements for award of the degree of B.A. LL.B from S.S. Jain
Subodh Law College, Mansarovar, Jaipur. It is a result of my own work and efforts. Any
material used or scripted herein by any other author/researcher/commentator and used
hereinafter has been thoroughly acknowledged. The present work has not been accepted for
any degree, and is also not being currently submitted for any other degree.

Bhuvnesh Vyas

B.A. LLB Semester VII- A

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 ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this all along the completion of my
assignment work. I respectfully thank Prof. (Dr.) Swati Mehta Ma’am (Principal) and Mr.
Zeeshan Hashmi (Assistant Professor of Law) for giving me this opportunity to do this
assignment work and providing me all support and guidance which made me to complete the
assignment in time. I hope the project will be knowledgeable and helpful in my future.

Thank You.

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 RESEARCH METHODOLOGY

The methodology used in this project is doctrinal includes accessing reference books and
other relevant sources from library and using secondary sources as well. The secondary
sources used in this project include the library of, S.S. Jain Subodh Law College,
Mansarovar, Jaipur and other sources from the internet. On the basis of the knowledge gained
from all of the above mentioned sources a self-analysis of the topic under the study has been
presented in the project. All sources referred to have been given due recognition. The
dimensions of this research include studying of the judgment of the case under the study and
also other cases which relied upon the judgment of this case.

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 TABLE OF CONTENTS

CONTENTS

Introduction………………………………………………………………….07

Objectives of Criminal Law………………………………………………… 08

Elements of Crime………………………………………………………….. 10

History & Background …………………………………………………….. 12

Concept of Miscarriage …………………………………………………….. 14

Legal Provisions regarding Miscarriages ………………………………….. 15

Conclusion ………………………………………………………………….18

Footnotes ……………………………………………………………………19

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 Introduction
Criminal law is the body of law that relates to crime. It prescribes conduct
perceived as threatening, harmful, or otherwise endangering to
the property, health, safety, and moral welfare of people inclusive of one's self.
Most criminal law is established by statute, which is to say that the laws are
enacted by a legislature. Criminal law includes
the punishment and rehabilitation of people who violate such laws.
Criminal law varies according to jurisdiction, and differs from civil law, where
emphasis is more on dispute resolution and victim compensation, rather than
on punishment or rehabilitation.
Criminal procedure is a formalized official activity that authenticates the fact of
commission of a crime and authorizes punitive or rehabilitative treatment of
the offender.
The first civilizations generally did not distinguish between civil law and
criminal law. The first written codes of law were designed by the Sumerians.
Around 2100–2050 BC Ur-Nammu, the Neo-Sumerian king of Ur, enacted
written legal code whose text has been discovered: the Code of Ur-
Nammu although an earlier code of Urukagina of Lagash ( 2380–2360 BC ) is
also known to have existed. Another important early code was the Code of
Hammurabi, which formed the core of Babylonian law. Only fragments of the
early criminal laws of Ancient Greece have survived, e.g. those
of Solon and Draco.
In Roman law, Gaius's Commentaries on the Twelve Tables also conflated the
civil and criminal aspects, treating theft (furtum) as a tort. Assault and
violent robbery were analogized to trespass as to property. Breach of such laws
created an obligation of law or vinculum juris discharged by payment of
monetary compensation or damages. The criminal law of imperial Rome is
collected in Books 47–48 of the Digest. After the revival of Roman law in the
12th century, sixth-century Roman classifications and jurisprudence provided
the foundations of the distinction between criminal and civil law
in European law from then until the present time.
The first signs of the modern distinction between crimes and civil matters
emerged during the Norman Invasion of England. The special notion of criminal
penalty, at least concerning Europe, arose in Spanish Late Scholasticism
(see Alfonso de Castro), when the theological notion of God's penalty (poena
aeterna) that was inflicted solely for a guilty mind, became transfused into
canon law first and, finally, to secular criminal law. The development of
the state dispensing justice in a court clearly emerged in the eighteenth century
when European countries began maintaining police services. From this point,

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criminal law formalized the mechanisms for enforcement, which allowed for its
development as a discernible entity.
Objectives of Criminal Law
Criminal law is distinctive for the uniquely serious, potential consequences
or sanctions for failure to abide by its rules.[8] Every crime is composed
of criminal elements. Capital punishment may be imposed in some jurisdictions
for the most serious crimes. Physical or corporal punishment may be imposed
such as whipping or caning, although these punishments are prohibited in much
of the world. Individuals may be incarcerated in prison or jail in a variety of
conditions depending on the jurisdiction. Confinement may be solitary. Length
of incarceration may vary from a day to life. Government supervision may be
imposed, including house arrest, and convicts may be required to conform to
particularized guidelines as part of a parole or probation regimen. Fines also
may be imposed, seizing money or property from a person convicted of a crime.

Five objectives are widely accepted for enforcement of the criminal law
by punishments: retribution, deterrence, incapacitation, rehabilitation and restor
ation. Jurisdictions differ on the value to be placed on each.

Retribution – Criminals ought to Be Punished in some way. This is the most
widely seen goal. Criminals have taken improper advantage, or inflicted unfair
detriment, upon others and consequently, the criminal law will put criminals at
some unpleasant disadvantage to "balance the scales." People submit to the law
to receive the right not to be murdered and if people contravene these laws, they
surrender the rights granted to them by the law. Thus, one who murders may be
executed himself. A related theory includes the idea of "righting the balance."

Deterrence – Individual deterrence is aimed toward the specific offender. The

aim is to impose a sufficient penalty to discourage the offender from criminal
behavior. General deterrence aims at society at large. By imposing a penalty on

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those who commit offenses, other individuals are discouraged from committing
those offenses.

Incapacitation – Designed simply to keep criminals away from society so that

the public is protected from their misconduct. This is often achieved
through prison sentences today. The death penalty or banishment have served
the same purpose.

Rehabilitation – Aims at transforming an offender into a valuable member of

society. Its primary goal is to prevent further offense by convincing the offender
that their conduct was wrong.

Restoration – This is a victim-oriented theory of punishment. The goal is to

repair, through state authority, any injury inflicted upon the victim by the
offender. For example, one who embezzles will be required to repay the amount
improperly acquired. Restoration is commonly combined with other main goals
of criminal justice and is closely related to concepts in the civil law, i.e.,
returning the victim to his or her original position before the injury.

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 Elements of Crime
The main elements that make up a crime are:
A human being
Evil intent or guilty mind from the part of a human being. (Mens rea)
Any act committed or omitted in accordance with the evil intent and is
forbidden by law. (Actus reus)
Injury
1. Human Being
The first element of a crime is a human being. Any wrongful act to be called
crime must be done by a human being. There must be a human being under a
legal obligation to act in a particular way, and it must also be capable of being
punished.
2. Mens Rea
The second essential element of a crime is mens rea or guilty mind or evil
intent. Mens rea refers to the mental element that is necessary for a particular
crime. Any wrongful act committed by a human being cannot be called a crime
if committed without evil intent. There must be an evil intent while doing an
act.
There is a well-known maxim– ‘Actus non facit reum nisi mens sit rea‘. It
means ‘the act itself does not make a man guilty unless his intentions were so.’
From this maxim there came another maxim- ‘actus me invito factus non est
mens actus’ which means ‘an act done by me against my will is not my act at
all.’
3. Actus Reus
The third element of the crime is actus reus. The criminal intent to be
punishable must be obvious in some voluntary act or omission. As per Kenny,
‘actus reus’ is such a result of human conduct as the law seeks to prevent. The
act committed must be the one that is forbidden or is punished by the law.

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An act includes omissions also. A man is also held liable if some duty is
imposed upon him by law, and he omits to discharge that duty. An omission
must be a breach of a legal duty.
4. Injury
Injury is the last important, or we can say the essential element of a crime. It
must be caused illegally to another human being or a body of individuals or
society at large. ‘Injury’ has been defined in section 44 of the Indian Penal
Code as ‘any harm whatever illegally caused to any person in body, mind,
reputation or property.’
However, there can be some crimes that may not cause any injury to
anybody. For example, if you drive a vehicle without a driving license, it is a
crime, even if it does not cause any injury to someone.

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 History & Background
The concept of miscarriage or abortion is considered unethical all around the
world. With the United States passing the anti-abortion law, many people were
for and against this move. While some believe that abortion is murder, others
believe that it is a woman’s reproductive right.

These two opinions are prevalent in India, too and India being a religiously
mindful country, some also view abortion as a religious sin.

The general definition for this term has been given by various medical jurists.
One such definition is the “expulsion of the ovum or embryo from the uterus
after conception”. The period within which miscarriage or abortion may be done
differs for different countries around the world.

As per the Indian laws, the term ‘miscarriage’ or ‘abortion’ has not been used
nor defined. Rather, the term ‘medical termination of pregnancy’ is used and
there is an interesting reason behind this. This term is intended to protect the
doctors from conducting the termination of the pregnancy, rather than to grant
and protect women, their reproductive rights. Although this may sound
problematic, doctors have faced backlash for advocating abortion for their
patients.   

While the practices of miscarriage and abortion have been frowned upon by
citizens, ‘medical termination of pregnancy’ has softened the blow. This is
because the practice focuses on the termination of pregnancies under limited
circumstances.

However, it is important to note that miscarriage is also covered under Indian

law. The Indian Penal Code, 1860, criminalizes miscarriage with or without the
consent of the woman carrying the child.

The main focus of this article would revolve around marriage and injuries
caused to a foetus in the womb as well as conditions under which pregnancies
can be medically terminated.

Until 1971, the Indian Penal Code, 1860 was the only legal provision available
for women regarding miscarriage and abortion. In 1964, the Central Family
Planning Board recommended the Ministry of Health to legalize abortion. For
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this purpose, the Shantilal Shah Committee was formed, and with its report
submitted 1966, the Government passed the Medical Termination of Pregnancy
(MTP) Act, 1971.

This Act was passed to prevent illegal abortions. However, this has been viewed
to be problematic as it does not grant women the right to choose when they can
go through with the abortion and places a discretionary power on the
Government to decide.

In simple terms, the MTP Act allows for termination of pregnancy under limited
conditions, and such termination done beyond the limited conditions would
amount to a criminal offence under the Indian Penal Code, 1860.

Many believe that while the concept of termination of pregnancy is protected

under Law, the conditions for such are limited and women are not protected
from making free choices. The current MTP Act contradicts the proposal of the
Shantilal Shah Committee for comprehensive abortion care for women. The
current law protects doctors over women with its provisions. The phrase
‘Notwithstanding anything contained in the Indian Penal Code’ as used under
the MTP Act, shows that this Act protects doctors from any kind of criminal
prosecution and strays away from the comprehensive care for women.

It is also important to note that the Act places a choice on doctors and not on
women as to whether they can have an abortion, which has been viewed as a
lack of autonomy on women to decide what they can and cannot do with their
own bodies.

The right to abortion has also been viewed by Courts as a fundamental right and
the landmark judgment of Roe v. Wade[i] reiterated the same, stating that the
right to abortion is fundamental liberty protected by the 14 th Amendment of the
Constitution. This case has been a precedent for various judgments passed by
the Indian Courts, including Suchita Srivastava v. Chandigarh Admin[ii], in
which the Supreme Court held that reproductive rights are to be protected under
the fundamental right to privacy guaranteed under the Constitution and the
autonomy must subsist on the woman to decide whether to bear a child or not,
and the state must not intervene in such matters.
Before analyzing the flaws in the existing laws surrounding abortion, it is
important to know the current provisions available for abortion and the criminal
action that could entail in case of illegal miscarriage.

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 Concept of Miscarriage
The National Health Portal of India has categorized abortions and has provided
definitions for the same. One of the categories under this portal is early
pregnancy loss, which is also known as spontaneous abortion or miscarriage. It
is defined as a “non-induced embryonic or fetal death or passage of products of
conception before 20 weeks of gestation”.

It is important to note here that abortion and miscarriage are two concepts. It
can be understood that all miscarriages are abortions but not all abortions are
miscarriages. Miscarriage is a type of abortion that is not induced and is done
due to hormonal or biological complications.

The National Health Portal has listed down various causes for miscarriages,
including hormonal problems, maternal infections, maternal health problems,
autoimmune disorders, uterine abnormalities, problems of the placenta or
incompetent cervix. When doctors detect any symptoms at an early stage which
may lead to the above-mentioned causes of miscarriage, an induced abortion
would be suggested so as to protect the life of the mother. Apart from this, the
portal also provides for the diagnosis, management and prevention of
miscarriages.

The Indian Penal Code, 1860 deals only with miscarriages, which is different
from induced abortion or medically terminated pregnancies under the MTP Act.

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 Legal Provisions regarding Miscarriages
Indian Penal Code
The Indian Penal Code, 1860 provides for criminal punishment for causing
miscarriages, without and without the consent of the woman bearing a child, for
causing the death of such woman while causing miscarriage, for preventing a
child from being born alive or for causing its death after birth and for causing
such death by act amounting to culpable homicide.

Section 312 of the Code[iii] states that “Whoever voluntarily causes a woman
with child to miscarry, shall, if such miscarriage is 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 is 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.”
It can be understood from this Section that the miscarriage can be of 2 forms;
causing a miscarriage of a woman bearing a child and causing a miscarriage of a
woman who is quick with child. For understanding, a woman is said to be quick
with a child, when the movement of the foetus can be felt inside the womb. This
movement can be felt at different periods for different women, but usually, it
occurs within 15-16 weeks of conception.

The first part of this Section deals with women carrying a child. Whoever
causes such a child to be miscarried, they shall be liable to imprisonment for a
term up to 3 years or liable to fine or liable to both. The second part states that
where a quick child is miscarried, they shall be punishable with imprisonment
of up to 7 years and with a fine.

It is important to note, the act of causing miscarriage must be voluntary and

must not be done in good faith. Such an act is said to be done in good faith only
for the purpose of saving the life of the woman.

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The Explanation under this Section explicitly mentions that a woman who
causes herself to miscarry the child she bears is also liable to punishment under
this Section.

Section 313 of the Code[iv] states that “Whoever commits the offence defined
in the last preceding section without the consent of the woman, whether the
woman is quick with a child or not, shall be punished with 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.”
The essence of this Section is in connection with Section 312 but without the
consent of the woman bearing such a child. It does not distinguish between a
woman carrying a quick child and who is not. The punishment under this
Section deals with imprisonment of up to 10 years of life as well as with fine.

The basic essentials, that the act must be voluntary and done without good faith,
will apply to this Section, as well.

Section 314 of the Code[v] states that “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 the act is done without the 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.”
For simple understanding, the first part of this Section states that any person,
who only intended to cause the miscarriage of a woman with a child, with the
consent of such woman, does any action that leads to the death of the woman,
would be liable to imprisonment of up to 10 years and fine. However, if the
miscarriage was caused without the consent of the woman and some act leads to
the death of such a woman, the person causing such marriage and such death
would be liable to be imprisoned for life or for up to 10 years.

It is important to note that the person need not know that their act is likely to
cause the death of such a woman. The presence or absence of this knowledge
would not matter under this Section and they would be liable to persons
irrespective of this knowledge.

Section 315[vi] of the Code states that “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

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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.”
This Section deals with any act that might directly affect the child from being
born alive, also known as still-birth, or any action that might cause the death of
the child after its birth. This means that the child is said to be dead during or
after its birth and not when it is the womb of its mother, as in the case of
miscarriage. Whosoever is guilty of an offence under this Section shall be liable
to be imprisoned for up to 10 years or fine or both.

Section 316[vii] of the Code states that “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.”
This section specifically deals with the death of a quick, unborn child. As
already mentioned, an unborn child is a child whose movements have begun
inside the womb of the mother. Under this Section, it is mentioned that whoever
does any act and causes the death of someone and would be guilty of culpable
homicide, and by doing the same act, causes the death of a quick, unborn child,
has committed an offence under Section 316. They shall be liable to
imprisonment of 10 years as well as fine.

These are the provisions available for the criminal offences of miscarriage.
Later in this article, the positive and negative aspects of these provisions shall
be discussed.

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 Conclusion
It is a well-known fact that India is a largely patriarchal society and gives
preference to its men over women. Despite this, Indian laws have begun to
become progressive towards women’s rights and have understood the years of
oppression women have had to face and new laws aim to end this.

At the same time, Indian laws do not totally guarantee and protect women’s
rights. There are still many laws that are backward, and which do not aim to
address the issues faced by women.

One such law is the abortion and miscarriage law. As already mentioned,
miscarriage is criminalised in India, irrespective of whether or not, the woman
wishes for such induced abortion. When Judicial precedents prove otherwise,
the Indian laws continue to criminalise induced abortions, especially for the
women.

The Indian laws must begin to be in consonance with Supreme Court judgments
and must aim to guarantee women the right to decide whether to have a child or
not and to ensure that States respect these rights of the women. The States must
only safeguard the reproductive rights of the women and must not intervene in
decisions regarding these rights.

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 Footnotes
01. https://lawcirca.com/laws-related-to-miscarriage-of-foetus-in-the-womb-
in-india/
02. https://indiankanoon.org/doc/1990693/#:~:text=%E2%80%94Whoever
%20voluntarily%20causes%20a%20woman,the%20woman%20be
%20quick%20with
03. https://www.crimemuseum.org/crime-library/criminal-law/history-of-
criminal-law/
04.https://www.britannica.com/topic/criminal-law
05. https://plato.stanford.edu/entries/criminal-law/

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