Sections 88 to 92 of the Bharatiya Nyaya Sanhita (BNS), 2023: Causing Miscarriage and Related Offences

Sections 88 to 92 of the Bharatiya Nyaya Sanhita (BNS), 2023: Causing Miscarriage and Related Offences are important provisions, Sections 88 to 92 deal with offences relating to miscarriage, death of unborn children, and actions aimed at preventing childbirth. These provisions closely resemble Sections 312 to 316 of the IPC but with clearer drafting and some nuanced changes. This article aims to explain these sections in simple language.

1. 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.

In simple words:  This section penalizes any person who voluntarily causes a miscarriage in a pregnant woman, except when it is done in good faith to save her life.

• Punishment:
  • If the woman is not quick with child: imprisonment up to 3 years, or fine, or both.
  • If the woman is quick with child (i.e., fetus has started to move in the womb): imprisonment up to 7 years and fine.

Explanation: A woman who causes herself to miscarry is also punishable under this section.

Real-life Example:

• A woman, in the early stages of pregnancy, is given abortion pills by a friend without any medical consultation. The miscarriage occurs. If not for saving her life, the act is punishable.

2. Section 89: Causing Miscarriage Without Woman’s Consent

Whoever commits the offence under section 88 without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

In simple words: If miscarriage is caused without the consent of the woman, regardless of the stage of pregnancy, it becomes a graver offence.

• Punishment:
  • Imprisonment for life or imprisonment up to 10 years, and fine.

Importance: This provision recognises a woman’s bodily autonomy and consent.

Example:

• A woman is secretly administered abortion-inducing drugs by her partner against her will. Even if she is in the first trimester, the offender may face life imprisonment.

3. 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. 

In simple words:

(1) If the act to cause miscarriage leads to the death of the pregnant woman, punishment is imprisonment up to 10 years and fine.

(2) If done without her consent, the punishment increases to life imprisonment.

Explanation: The offender need not have known that the act was likely to cause death.

Example:

• A midwife performs an unsafe abortion without proper care, leading to the woman’s death. Even if she did not intend the death, she is liable under Section 90.

4. Section 91: Act to Prevent Child Being Born Alive or to Cause Death After Birth

Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

In simple words: Anyone who acts with intent to prevent a child from being born alive or to cause its death after birth is punishable.

• Punishment: Imprisonment up to 10 years, or fine, or both.
• Exception: If the act is done in good faith to save the mother’s life, it is not an offence.

Example:

• A person knowing a child might be born with disabilities intentionally acts to terminate the pregnancy in a late stage without medical need. The act is punishable unless done to save the mother.

5. Section 92: Causing Death of Quick Unborn Child by Act Amounting to Culpable Homicide

Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Illustration. 

A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section.

In simple words:  If someone causes the death of a quick unborn child by doing an act that would amount to culpable homicide if it caused death, they are liable under this section.

• Punishment: Imprisonment up to 10 years and fine.

Illustration: A man hits a pregnant woman knowing the act could cause death. The woman survives, but the unborn child dies. He is liable under Section 92

What is mean by “Quick with Child” ?

The phrase “quick with child” refers to the stage of pregnancy when the fetus has started to show signs of life, particularly fetal movements that the mother can feel. This generally happens around 16 to 20 weeks of pregnancy.

In legal terms, it marks an advanced stage of pregnancy, where the unborn child is considered to have a higher degree of life in the womb. This concept has been retained from the Indian Penal Code and continues to be relevant in BNS, 2023.

Comparison with Indian Penal Code (IPC)

Particulars of Offences

READ MORE: BNS Defamation Section 356 in Hindi

BNS section 129, 130 and 131 in Hindi

Important Case Laws and Interpretations

1. Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1
   • The Supreme Court emphasized a woman’s right to make reproductive choices as a fundamental right under Article 21.
   • Consent is crucial for medical termination of pregnancy.
2. Murugan Nayakkar v. Union of India (2017 SCC OnLine SC 1497)
   • The Supreme Court allowed a minor rape victim to abort her 32-week pregnancy, citing mental trauma and medical risk.
   • The judgment indirectly emphasized the need for medical expertise and good faith exception under such provisions.
3. X v. State of Maharashtra (2022 SCC OnLine SC 1313)
   • The court reiterated that marital rape resulting in pregnancy falls under the right to terminate under exceptional cases.
   • Importance of mental health and personal agency was highlighted.
4. State of Himachal Pradesh v. Nikku Ram (2019 SCC OnLine HP 313)
   • The accused punched a pregnant woman in her stomach leading to the miscarriage of a 5-month fetus. Conviction under IPC 316 upheld.
   • Relevance for Section 92 of BNS.

FAQs on Sections 88 to 92 of the Bharatiya Nyaya Sanhita (BNS)

Q1: What does “quick with child” mean?

 A: It refers to the stage of pregnancy when fetal movements can be felt, usually around 16-20 weeks.

Q2: Can a woman be punished for causing her own miscarriage?

 A: Yes, under Section 88, if not done in good faith to save her life.

Q3: Are these offences compoundable? 

A: No, all offences under Sections 88 to 92 are non-compoundable.

Q4: Is consent necessary for all miscarriages? 

A: Yes. Lack of consent makes the offence more serious under Section 89.

Q5: How is culpable homicide linked to unborn child’s death?

 A: If the act would be culpable homicide had it caused death of a person, and it results in death of a quick unborn child, Section 92 applies.

Q6: What is the section of BNS for miscarriage?

Ans: Sections 88 and 89 of BNS deal with miscarriage — Section 88 covers general miscarriage, and Section 89 covers miscarriage without consent.

Q7: What is Section 88 of BNS?
Ans: Section 88 of the Bharatiya Nyaya Sanhita (BNS), 2023 punishes anyone who voluntarily causes a woman to miscarry, unless it is done in good faith to save her life.

Q8: What is Section 89 of BNS?
Ans: Section 89 of BNS punishes causing miscarriage without the woman’s consent, regardless of the stage of pregnancy. It is a more serious offence.

Conclusion and Additional Points

• These sections aim to strike a balance between protecting unborn life and preserving the dignity and bodily autonomy of women.
• They also provide clarity about gradation in punishment depending on consent, stage of pregnancy, and consequences.
• While the IPC laid the foundation, BNS provides refined drafting and consistency.
• Legal practitioners must be mindful of medical, ethical, and legal dimensions of such offences.

These provisions are especially important in present times where reproductive rights, gender justice, and ethical medical practices intersect with criminal law. Law students and practitioners should not only understand the bare provisions but also the judicial interpretations shaping their application.