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.
Simplified Explanation
Section 88 of the Bharatiya Nyaya Sanhita (BNS), 2023 addresses the offense of causing a miscarriage. This provision criminalizes the intentional or unlawful act of inducing a miscarriage in a woman, with the aim of preventing harm to the woman’s health and protecting the fetus.
What does Section 88 address?
Section 88 deals with the act of causing a miscarriage—whether intentionally or through neglect—by administering any treatment, drugs, or physical means to forcefully terminate a pregnancy. The section outlines the punishment for those who perform such acts unlawfully or without the consent of the woman involved.
Key Elements of the Offense under Section 88:
- Causing a Miscarriage:
- Causing a miscarriage refers to deliberately or negligently inducing the termination of a pregnancy, either through physical means (such as physical trauma) or by administering harmful substances or drugs.
- Intentional or Unlawful Act:
- The act must be intentional or unlawful, meaning that the person inducing the miscarriage does so without the woman’s consent or in a manner that violates legal or medical protocols. The law recognizes that medical professionals may perform certain actions related to pregnancy under specific legal circumstances, but when this is done outside those circumstances (e.g., without medical supervision or against the woman’s will), it becomes a criminal act.
- Lack of Consent:
- If the woman consents to the procedure (e.g., a legal abortion where allowed), this section is not applicable. The key issue is whether the act was performed without the woman’s consent, whether it was done fraudulently or coercively, or in a way that violates the law.
- Risk to the Woman’s Health:
- The act of causing a miscarriage can endanger the woman’s health, especially if the procedure is done in an unsafe or non-medical manner. Section 88 aims to protect women from such health risks and prevent the exploitation or harm of women in such sensitive situations.
Punishment for the Offense:
- Imprisonment and/or fine: If found guilty of causing a miscarriage under Section 88, the offender could face imprisonment of up to 7 years and/or a fine. The severity of the punishment reflects the serious nature of the offense, considering both the harm to the woman and the fetus.
Purpose and Protection:
The objectives of Section 88 are:
- Protecting the woman’s health and autonomy: The section seeks to protect women from being subjected to unwanted or unsafe procedures that may cause physical harm, death, or long-term health consequences.
- Preventing coercion and exploitation: It addresses the issue of coerced or fraudulent miscarriages, which could occur in cases of domestic abuse or exploitation, and ensures that such acts are criminalized.
- Upholding legal and medical standards: Section 88 reinforces that miscarriage-inducing actions must only be performed under lawful, medically supervised conditions to ensure the safety and well-being of the woman involved.
Example scenarios under Section 88:
- Scenario 1: A person deliberately administers harmful drugs to a woman without her consent in an attempt to induce a miscarriage. This would be considered a criminal act under Section 88.
- Scenario 2: A woman’s partner pressures her into having an abortion against her will and forces her to undergo a risky and unsafe procedure. This act would also fall under the provisions of Section 88 as it involves coercion and harm to the woman’s health.
- Scenario 3: A medical professional performs an abortion without the necessary legal or medical justification, outside the boundaries of what is permitted under the law (such as performing an abortion without proper consent or without a legal basis for it). This could also be prosecuted under Section 88 if the act endangers the woman’s life or health.
In summary, Section 88 criminalizes the act of causing a miscarriage through coercion, fraud, or without the woman’s consent. It aims to protect women from physical harm, safeguard their health, and ensure that any actions involving the termination of a pregnancy are performed legally and ethically.
