The following offences relate to birth of children. Such offences are generally committed in cases of children conceived otherwise than in lawful wedlock:
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(1) Voluntarily causing miscarriage otherwise than in good faith for saving the life of the woman concerned —imprisonment of either description upto 7 years and fine (Section 312) and where such miscarriage is caused without consent of the woman in question imprisonment for life, or imprisonment of either description upto 10 years, and fine (Section 313).
ADVERTISEMENTS:
It has been held by a Full Bench of the Kerala High Court that Section 313 penalises voluntary causing of miscarriage of a woman with child without her consent while miscarriage with consent is dealt with under Section 312.
Under Section 313, the person procuring the abortion alone is liable to punishment, whereas under Section 312 the woman is also liable for punishment. In the instant case the allegation in the complaint on that side is, on hearing that she is pregnant the petitioner took her to a doctor who caused the abortion.
There is no case that it was without her consent. On the other hand, the averments show that she willingly submitted herself to abortion and even thereafter she had sexual intercourse with the petitioner.
There is nothing to show that abortion was at his instance. Whether he was only accompanying the lady at her request and whether he even made a request to the doctor to have abortion, are not clear from the allegations.
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The doctor who conducted the abortion is not made an accused which means she has no complaint against him. It is clear that an offence under Section 313 is not made out from the allegations.
(2) Causing the death of the woman by an act done with intent to cause miscarriage —imprisonment upto ten years and fine (Section 314).
In the case of Surendra Chauhan v. State of M.P., the accused was charged for the death caused by act done with intent to cause miscarriage. The accused person had illicit relations with the deceased.
The accused took her to clinic of doctor with intent to cause her miscarriage. While the abortion was being operated, death of deceased was caused by doctor. The doctor was neither competent to terminate pregnancy nor his clinic was approved by Government and the clinic was not having basic facilities for abortion. It was held by hon’ble Supreme Court that the accused was guilty for the charge under this section read with section 34 of I.P.C.
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(3) Before birth doing an act without good faith with intent to prevent a child being born alive or with intent to cause it to die after birth—imprisonment upto 10 years or fine (Section 315).
(4) Causing the death of quick unborn child by an act done to the woman which would have amounted to culpable homicide if the woman had died —imprisonment upto 10 years and fine (Section 316).
In such cases the woman is injured but does not die but the death of an unborn quick child with which she is pregnant is thereby caused. Since the child is not born the death of the child does not amount to culpable homicide.
(5) Exposure and abandonment of child under 12 years by parent or person having care of it—imprisonment upto 7 years or fine or both (Section 317). The section is not intended to prevent the trial of the offender for murder or culpable homicide if the child dies.
The exposure must be done by which some danger to the life of the child may ensue. In order to make it an offence under Section 317, it is essential that the child must have been exposed alive. The explanation to Section 317 makes it perfectly clear that the section applies only when the child is exposed alive.
If the child is dead before exposing or if the person exposing remains with the child till it is dead or if the person exposing the child and then leaves its body somewhere, a case under Section 317 is not made out.
Even in a case of exposure, if a child dies on account of exposure, the accused cannot be convicted for both the offences under Sections 317 and 304, I.P.C. It is only before the death of the child that the person exposing the child be convicted for the offence under Section 317, I.P.C.
(6) Concealment of birth, secret disposal of dead body or endeavour towards such concealment imprisonment upto 2 years or fine or both (Section 318). It does not matter for this offence whether the child died before, during or after birth.
When the birth of child was known to most of the villagers in the village, no inference can be drawn that the disposing of the dead body of this child was with the intention of concealing the birth of a child