A miscarriage refers to the unintentional end of a pregnancy before the 20th week, frequently linked to chromosomal anomalies, though it can also stem from various factors such as health complications, lifestyle decisions, and trauma. Symptoms typically include bleeding, cramping, and the expulsion of tissue, making miscarriage a common and emotionally taxing event for many women.

In cases where miscarriages arise from external factors, they involve the loss of pregnancy due to physical trauma, abuse, or negligence, whether intentional or accidental. Such circumstances not only cause significant distress but also raise important legal and ethical concerns.

The crimes incorporated in the Sections under the Bharatiya Nyaya Sanhita, 2023 (BNS) fall under Chapter V, which addresses offences against women and children.

Section 88 of BNS: Causing Miscarriage:

Anyone who intentionally causes a pregnant woman to lose her baby will be punished, unless it's done in good faith to save the woman's life. If the miscarriage is not done to save her life, the punishment can be up to three years in prison, a fine, or both. If the woman is far along in her pregnancy, the punishment can be up to seven years in prison and a fine.

Explanation: A woman who makes herself lose her baby is also included in this law.

Key Points on Section 88 BNS:

Intentional Miscarriage:

It is illegal to intentionally cause a pregnant woman to miscarry unless it's done to save her life.

Penalties: If the woman is not far along in her pregnancy, the offender can get up to three years in prison, or a fine, or both. If she is far along in her pregnancy, the penalty can go up to seven years in prison and a fine.
Self-Induced Miscarriage: This law also applies to women who choose to cause their own miscarriages.

Section 88 of the BNS specifically addresses the scenario of miscarriage, permitting a woman to seek one only under the condition of good faith that it is necessary to safeguard her own life. Despite the progressive strides made by the Medical Termination of Pregnancy (MTP) Act and its subsequent amendments, which expand women's rights and autonomy regarding the decision to terminate a pregnancy under various circumstances, this particular aspect has not undergone any alterations.

The MTP Act asserts a woman's right to make choices about her own body, yet Section 88 of the BNS continues to enforce restrictions, allowing for miscarriage only in situations that pose a direct threat to her life. This inconsistency highlights a substantial gap between contemporary legal frameworks that strive to empower women and the archaic regulations still present within the BNS. Such a divide is particularly notable as it does not align with the provisions set forth in the Medical Termination of Pregnancy Act of 1971, nor does it reflect the recent ruling in the case of X v. State (NCT of Delhi) (2023) 9 SCC 433, which further emphasizes the need for legal coherence that respects women's rights and choices in reproductive health.

Section 89 of BNS:

Section 89 of the BNS - Inducing miscarriage without the woman's consent:

• This section addresses the issue of causing a miscarriage without the woman's permission.
• If someone causes a miscarriage without the woman's consent, whether she is pregnant or not, they can face life imprisonment or a prison term of up to ten years, and may also have to pay a fine.

Section 90 of BNS:

Death caused by act done with intent to cause miscarriage:

• Anyone who intends to cause a miscarriage in a pregnant woman by doing something that leads to her death will face a prison sentence of up to ten years and shall also have to pay a fine.
• If the action mentioned in the first part is carried out without the woman's consent, the offender can be punished with life imprisonment or the penalties described in the first part.

Explanation: It is not necessary for the offender to be aware that their actions could result in death to be charged with this crime.

Section 91 of BNS:

Act done with intent to prevent child being born alive or to cause to die after birth:
Section 91 of the Bharatiya Nyaya Sanhita refers to actions taken with the aim of stopping a child from being born alive or causing its death after birth.

If someone performs any action before a child is born with the intention of preventing the child's birth or causing it to die after birth, and their actions successfully lead to the child not being born alive or cause its death, they will face punishment. However, this punishment applies only if their actions were not done in good faith to save the mother's life. The consequences may entail a prison sentence of up to ten years, or a monetary penalty, or a combination of both.

Section 92 of BNS

Causing death of quick unborn child by act amounting to culpable homicide:
This section deals with the death of a viable unborn child.

If someone does something that could lead to the death of a pregnant woman and, as a result, causes the death of her viable unborn child, they can be punished with imprisonment for up to ten years and may also have to pay a fine.

For example, if person A knows that their actions could likely kill a pregnant woman and they proceed with that action, which injures the woman but doesn't kill her, but results in the death of her viable unborn child, person A has committed the offence described in this section.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565