Bharatiya Nyaya Sanhita, 2023
Section 88
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.
Why this exists
This provision continues, almost word-for-word, Section 312 of the old Indian Penal Code (1860), which was itself modeled on 19th-century English law criminalizing abortion. The underlying idea was to protect fetal life and prevent unsafe, unauthorized procedures, while carving out an exception for situations where ending the pregnancy was genuinely necessary to save the woman's life. Over time, the separate Medical Termination of Pregnancy Act, 1971 was enacted to define when abortions are legally permitted by trained doctors under specified conditions, working alongside this criminal provision.
How courts read it
Indian courts have generally read the 'good faith' exception narrowly, requiring that the person causing the miscarriage genuinely and reasonably believed it was necessary to save the woman's life, not merely convenient or precautionary. Courts have also emphasized that lawful terminations performed under the Medical Termination of Pregnancy Act by qualified doctors do not attract this section, since such Act provides the lawful framework for permissible abortions, while this provision targets illegal or coerced terminations outside that framework.
Common misconceptions
- Myth: This section means all abortions are illegal in India.
Fact: Legal abortions performed by qualified doctors under the Medical Termination of Pregnancy Act, 1971 are not covered by this section; it targets miscarriages caused outside good faith or lawful medical process. - Myth: Only another person can be punished under this law, never the pregnant woman herself.
Fact: The Explanation specifically states that a woman who causes her own miscarriage is also covered by this section.