Causing Miscarriage and Injury to the Unborn Child
Chapter Nineteen
Syllabus topic 1, "Offences under Indian Penal Code"
Pages 84 to 88 of 802
In one line
Five sections punish ending a pregnancy or harming an unborn child, and they are graded by whether the woman consented, whether she was quick with child, and whether she died.
In the wording a student can write in an exam: by section 88 of the Bharatiya Nyaya Sanhita, 2023 whoever voluntarily causes a woman with child to miscarry, otherwise than in good faith for the purpose of saving her life, is punished with imprisonment up to three years, or fine, or both, and with imprisonment up to seven years and fine if the woman is quick with child.
Why the law is drafted around consent and quickening
The offence is not abortion as such. The good faith exception in section 88 excludes a miscarriage caused to save the woman's life, and a separate statute, the Medical Termination of Pregnancy Act, 1971, provides a wider lawful route which these sections do not touch. Read alone, the Sanhita would give a misleading picture of when a termination is lawful.
Consent is the dividing line between a serious offence and a very serious one. With her consent, the maximum is three or seven years. Without it, section 89 raises the punishment to imprisonment for life.
Quickening is an old distinction the Sanhita kept. A woman is quick with child when foetal movement is perceptible. It marks the point at which the older law treated the pregnancy as more advanced, and it doubles the exposure under section 88 from three years to seven.
The provisions themselves
Section 88, causing miscarriage. Whoever voluntarily causes a woman with child to miscarry is punished, if the miscarriage was not caused in good faith to save her life, with imprisonment up to three years, or fine, or both; and if she is quick with child, with imprisonment up to seven years and fine. The Explanation provides that a woman who causes herself to miscarry is within the section.
Section 89, without consent. Whoever commits the offence under section 88 without the consent of the woman, whether she is quick with child or not, is punished with imprisonment for life, or with imprisonment up to ten years, and fine.
Section 90(1), death of the woman. Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes her death is punished with imprisonment up to ten years and fine. Sub-section (2) provides that where the act is done without her consent, the punishment is imprisonment for life or the punishment in sub-section (1). The Explanation provides that it is not essential that the offender should know the act is likely to cause death.
Section 91, preventing a live birth. Whoever, before the birth of a child, does an act with the intention of preventing it from being born alive or causing it to die after birth, and by that act prevents it from being born alive or causes it to die after birth, is punished, if the act was not done in good faith to save the mother's life, with imprisonment up to ten years, or fine, or both.
Causing Miscarriage and Injury to the Unborn Child
Section 92, death of a quick unborn child. Whoever does an act in such circumstances that if he thereby caused death he would be guilty of culpable homicide, and by that act causes the death of a quick unborn child, is punished with imprisonment up to ten years and fine. Its illustration is a man who knowingly risks the death of a pregnant woman, injures her without killing her, and thereby kills the quick child she is carrying.
Broken down: the four variables
One: consent. Section 88 assumes the woman's consent; section 89 is the same act without it. Section 90(2) applies the same distinction where she dies.
Two: quickening. Within section 88 it raises the maximum from three years to seven. Within section 89 it is expressly irrelevant, because the section says "whether the woman is quick with child or not".
Three: the outcome. A miscarriage alone is section 88 or 89. The woman's death is section 90. Prevention of a live birth is section 91. The death of a quick unborn child, where the act would have been culpable homicide had it killed a person, is section 92.
Four: good faith to save life. Sections 88 and 91 both carry the exception; sections 89, 90 and 92 do not carry it in terms, because an act without consent or one amounting to culpable homicide is outside its rationale.
The woman herself is within section 88
The Explanation is express, and it is the point students most often miss: a woman who causes herself to miscarry is within the meaning of section 88.
That is not the practical position today. The Medical Termination of Pregnancy Act, 1971 provides when a pregnancy may lawfully be terminated by a registered medical practitioner, and a termination within that Act is not an offence under these sections. What the Explanation preserves is the position outside that Act.
Distinctions that carry marks
| Section 88 | Section 89 | |
|---|---|---|
| Consent of the woman | Present | Absent |
| Relevance of quickening | Raises the maximum from three to seven years | Expressly irrelevant |
| Maximum | Three years, or seven if quick with child | Imprisonment for life, or ten years, and fine |
| Section 90 | Section 92 | |
|---|---|---|
| Who dies | The woman | The quick unborn child |
| Mental element | Intent to cause miscarriage; knowledge that death is likely is not essential | Circumstances such that causing death would have been culpable homicide |
| Maximum | Ten years, or life where there was no consent | Ten years and fine |
Causing Miscarriage and Injury to the Unborn Child
A worked example
Meena, eleven weeks pregnant, asks a village practitioner to end the pregnancy. He is not a registered medical practitioner and the procedure is not within the Medical Termination of Pregnancy Act, 1971.
What offence? Section 88. The miscarriage was voluntarily caused, it was not caused in good faith to save her life, and she is not quick with child, so the maximum is three years, or fine, or both. Meena herself is within the section by the Explanation.
Change the stage of pregnancy. If she were quick with child, the same section applies but the maximum becomes seven years and fine.
Change the consent. Suppose her husband arranges the procedure and it is carried out while she is sedated and unaware. That is section 89, and the maximum rises to imprisonment for life, whether or not she was quick with child.
Meena dies of an infection following the procedure. Section 90(1) applies to the practitioner, because he did an act with intent to cause miscarriage which caused her death, and the maximum is ten years and fine. By the Explanation it does not matter that he did not know the act was likely to kill her. If the act had been done without her consent, section 90(2) would permit imprisonment for life.
A different case entirely. Suppose a man, knowing that his act is likely to cause the death of a pregnant woman, beats her. She survives; the quick child she is carrying dies. That is section 92, on its own illustration, and the maximum is ten years and fine.
What beginners get wrong
Thinking these sections state the law on abortion. They do not. The lawful route is the Medical Termination of Pregnancy Act, 1971, and a termination within it is not an offence.
Thinking quickening matters everywhere. It matters within section 88 only. Section 89 says in terms that it does not matter there.
Thinking section 90 requires knowledge of the risk of death. The Explanation says the opposite: it is not essential that the offender should know the act is likely to cause death.
Confusing sections 91 and 92. Section 91 is about an act intended to prevent a live birth or to kill the child after birth. Section 92 is about an act done in circumstances amounting to culpable homicide which kills a quick unborn child, and it requires no intention directed at the child at all.
Limits and criticism
"Quick with child" is an unscientific line. Quickening is the moment the mother perceives movement, which varies with the pregnancy and with the woman, and using it to double a maximum sentence has been criticised for a century.
Causing Miscarriage and Injury to the Unborn Child
The Sanhita did not integrate the Medical Termination of Pregnancy Act. A reader of the penal statute alone would conclude that almost every termination is an offence, which is not the law, and the two texts have to be read together.
The good faith exception is narrow. It is confined to saving the life of the woman, which is narrower than the grounds in the 1971 Act, and the gap is bridged only by that Act's overriding operation.
Quick revision
Section 88. Voluntarily causing a woman with child to miscarry, not in good faith to save her life: up to three years, or fine, or both; up to seven years and fine if she is quick with child. The woman who causes her own miscarriage is within it.
Section 89. The same without her consent, quick or not: imprisonment for life, or up to ten years, and fine.
Section 90. An act done with intent to cause miscarriage which causes the woman's death: up to ten years and fine; imprisonment for life where there was no consent. Knowledge that death was likely is not essential.
Section 91. An act before birth intended to prevent the child being born alive or to cause it to die after birth, which does so, not in good faith to save the mother: up to ten years, or fine, or both.
Section 92. An act in circumstances amounting to culpable homicide which causes the death of a quick unborn child: up to ten years and fine.
Outside the Sanhita. The Medical Termination of Pregnancy Act, 1971 provides the lawful route, and these sections do not describe it.
Test yourself
1. What effect does the woman's consent have on the punishment for causing a miscarriage? With consent, section 88 applies, with a maximum of three years or seven where she is quick with child. Without consent, section 89 applies, and the maximum becomes imprisonment for life or ten years, and fine, whether or not she is quick with child.
2. Is a woman who causes her own miscarriage within section 88? Yes. The Explanation to the section says so expressly, subject to the operation of the Medical Termination of Pregnancy Act, 1971.
3. Must the offender under section 90 know that his act is likely to cause death? No. The Explanation to section 90 states that it is not essential to the offence that the offender should know the act is likely to cause death.
4. Distinguish section 91 from section 92. Section 91 punishes an act done before birth with the intention of preventing the child from being born alive or of causing it to die after birth, where that result follows. Section 92 punishes an act done in circumstances that would have amounted to culpable homicide had it caused a death, where it causes the death of a quick unborn child, and it requires no intention aimed at the child.
Causing Miscarriage and Injury to the Unborn Child
5. What is the good faith exception, and which sections carry it? That the act was done in good faith for the purpose of saving the life of the woman, in section 88, or of the mother, in section 91. Sections 89, 90 and 92 do not carry it in terms.
The rest of this subject
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