Bharatiya Nyaya Sanhita, 2023
Section 90
Death caused by act done with intent to cause miscarriage
(1) 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.
(2) Where the act referred to in sub-section (1) is done without the consent of the woman, shall be punishable either with imprisonment for life, or with the punishment specified in said sub-section. Explanation.—It is not essential to this offence that the offender should know that the act is likely to cause death.
Why this exists
This provision continues a rule from the old Indian Penal Code (Section 314) aimed at protecting pregnant women from unsafe or forced abortion attempts. Lawmakers recognized that acts meant to end a pregnancy can be fatal to the woman herself, not just the fetus. The law punishes the death resulting from such acts separately from the miscarriage offence itself, and it punishes non-consensual acts more severely because they involve an added violation of the woman's autonomy and bodily integrity.
How courts read it
Indian courts, interpreting the equivalent IPC provision, have held that the prosecution must prove the accused intended to cause miscarriage, and that the woman's death followed from the act — even if death itself wasn't intended or foreseen. Courts have emphasized that lack of consent aggravates the offence, reflecting greater culpability when the woman had no say in the procedure done on her body.
Common misconceptions
- Myth: The person must have wanted the woman to die for this law to apply.
Fact: The law only requires intent to cause miscarriage, not intent to kill; death resulting from the act is enough for punishment under sub-section (1). - Myth: If the woman agreed to the abortion, no crime happened even if she died.
Fact: Even with her consent, sub-section (1) still applies if she dies from the act; the harsher punishment in sub-section (2) only applies when consent was absent.