It was a quiet evening when the faint sound of sobs broke the stillness of the small room. A young woman sat alone, holding a letter that spoke of betrayal and abandonment. Her trembling hands rested on her stomach — the silent witness to a love story that had turned into despair. In her fear and helplessness, she made a choice she thought would end her suffering. But that choice — made under pressure, without guidance or protection — carried legal and moral consequences she had never imagined.
This emotional story represents the plight of many women who, in moments of desperation or under the influence of others, become victims of acts that cause miscarriage — sometimes willingly, often unwillingly, and occasionally through deceit or compulsion. The Bharatiya Nyaya Sanhita, 2023 (BNS), through Section 88, criminalizes such acts when they are not done in good faith for the purpose of saving the life of the woman.
This section is rooted in the principle of protecting both the life of the unborn child and the bodily integrity of the mother. It draws a delicate line between lawful medical termination of pregnancy done in good faith and unlawful acts of miscarriage that harm the woman or destroy life without legal justification.
Understanding Section 88 of the Bharatiya Nyaya Sanhita, 2023
Section 88 BNS states:
“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.”
This provision corresponds to Section 312 of the Indian Penal Code (IPC), which has been carried forward into the new Bharatiya Nyaya Sanhita (BNS) with the same protective intent but clearer legislative expression.
Essence of Section 88 BNS
The law under Section 88 BNS seeks to penalize anyone — including the woman herself — who voluntarily causes a miscarriage unless the act is done in good faith to save the woman’s life.
The section protects the following two interests:
- The life of the unborn child, which is considered a potential human life deserving of legal protection.
- The physical safety of the pregnant woman, ensuring that she is not harmed or coerced into terminating her pregnancy unlawfully.
Key Ingredients of the Offence under Section 88 BNS
For an act to constitute an offence under Section 88 BNS, the following elements must be proved:
- The woman must be pregnant (“with child”).
The presence of pregnancy is a prerequisite. Without this, the offence of causing miscarriage cannot arise. - The accused must have voluntarily caused the miscarriage.
The act must be intentional or deliberate. Accidental or unintentional acts are not punishable under this section. - The miscarriage must not be caused in good faith for the purpose of saving the life of the woman.
The law provides a clear exception when the act is done by a medical practitioner or any person acting to protect the woman’s life. - The woman may also be the offender.
The explanation clarifies that if a woman causes herself to miscarry, she too can be punished under this section.
What is “Good Faith” in this Context?
The term “good faith” is critical in understanding this provision.
Under Section 3(22) of the General Clauses Act, 1897, an act is said to be done in good faith when it is done with due care and attention.
Therefore, a doctor performing a medical termination of pregnancy (MTP) under the Medical Termination of Pregnancy Act, 1971, within the legal framework and to protect the woman’s life or health, acts in good faith. However, if a person — even a doctor — performs an abortion without legal justification, or outside the limits of the MTP Act, it becomes an offence under Section 88 BNS.
“Quick with Child” – Meaning and Importance
The section makes a distinction between a pregnant woman and a woman “quick with child.”
A woman is said to be “quick with child” when the movement of the fetus can be felt — generally around the fourth or fifth month of pregnancy. This stage indicates advanced pregnancy where the fetus is considered capable of independent life.
Therefore:
- If miscarriage is caused before the woman is “quick with child,” the punishment is up to three years.
- If miscarriage is caused after she becomes “quick with child,” the punishment increases up to seven years and fine.
This differentiation emphasizes the value of fetal life as it develops.
Explanation: Woman Causing Her Own Miscarriage
The Explanation under Section 88 BNS states that even a woman who causes herself to miscarry is considered to have committed the offence.
This means that self-induced abortion, whether by consuming harmful substances, using unsafe methods, or under external influence, is illegal unless it is done in good faith for saving her own life.
However, it is important to understand that this provision is not intended to criminalize women in distress, but rather to discourage unsafe and unlawful abortions that put women’s lives at risk.
Punishment under Section 88 BNS
- If miscarriage is caused in general cases:
Imprisonment up to 3 years, or fine, or both. - If miscarriage is caused when the woman is quick with child:
Imprisonment up to 7 years and fine.
These punishments underline the seriousness of the act, especially when it endangers both the woman and the unborn child.
Exceptions – When Miscarriage is Not a Crime
The law allows miscarriage in good faith to save the life of the woman. This is not an offence under Section 88 BNS.
Further, under the Medical Termination of Pregnancy Act, 1971, certain abortions are legally permitted if performed:
- By a registered medical practitioner,
- Within the permitted gestational period, and
- With the consent of the woman,
- For valid reasons such as risk to the mother’s life, serious fetal abnormalities, or pregnancy due to rape.
Thus, lawful abortions performed under medical supervision are protected acts, not crimes.
Illustration (Story Context)
A woman, facing abandonment from her partner and family pressure, is misled by an unqualified person who promises a “quick remedy” for her situation. She consumes unsafe substances leading to a miscarriage and severe health complications.
Here, the person who induced or assisted her has committed an offence under Section 88 BNS for voluntarily causing miscarriage not in good faith. If she herself induced it intentionally without medical supervision, she too falls under the purview of the law.
However, had the miscarriage been conducted by a qualified doctor under lawful circumstances to save her life, it would not be punishable.
Judicial Perspective and Case Laws
- Queen-Empress v. Ademma (1886) ILR 9 Mad 369:
The Court observed that even if the woman consents to the miscarriage, the person causing it is still guilty unless the act was done in good faith to save her life. - Emperor v. Dhondu (1901) 3 Bom LR 180:
It was held that the use of mechanical or chemical means to induce abortion without medical necessity amounts to causing miscarriage. - Dr. Jacob George v. State of Kerala (1994 CrLJ 106):
The Supreme Court emphasized that doctors performing abortions outside the scope of the MTP Act can be prosecuted under the Penal Code provisions relating to miscarriage.
These cases highlight the judiciary’s consistent stance — the law prioritizes the life and safety of both the woman and the unborn child, and any act not done in good faith attracts punishment.
Moral and Ethical Dimensions
Section 88 BNS raises profound moral questions about bodily autonomy, reproductive rights, and protection of life. The law seeks to balance these sensitive issues by criminalizing unlawful abortions while allowing legitimate medical interventions.
- Autonomy of Women:
While every woman has the right to make choices about her body, the law ensures that such choices are exercised within a legal and safe framework. - Protection from Exploitation:
Many cases involve women who are coerced into abortion by partners or family members. Section 88 acts as a deterrent against such coercion. - Medical Ethics:
It reinforces the obligation of doctors to act responsibly, ensuring that every abortion is medically justified and legally compliant.
Difference Between Section 88 and Related Provisions
| Section | Offence | Punishment |
|---|---|---|
| Section 88 BNS | Causing miscarriage not in good faith | Up to 3 or 7 years |
| Section 89 BNS | Causing miscarriage without woman’s consent | Up to 10 years |
| Section 90 BNS | Death caused by act done with intent to cause miscarriage | Imprisonment for life or 10 years |
| Section 91 BNS | Act done with intent to prevent child being born alive | Up to 10 years |
| Section 92 BNS | Causing death of quick unborn child | Up to 10 years |
This shows that Section 88 forms the foundation for more aggravated forms of offences relating to pregnancy and miscarriage.
How Section 88 BNS Protects Women
- Discourages Unsafe Abortions:
By penalizing unlawful acts, it prevents women from resorting to unsafe methods that risk their lives. - Prevents Exploitation:
It stops others — including family, partners, or quacks — from coercing women into miscarriage. - Supports Safe Medical Practices:
It aligns with the MTP Act to ensure abortions are carried out legally and medically. - Recognizes Women’s Rights and Health:
The exception for “good faith” ensures that women’s lives are not endangered by rigid interpretations of the law.
Conclusion
Section 88 of the Bharatiya Nyaya Sanhita, 2023, is not merely a penal provision — it is a reflection of India’s effort to strike a balance between women’s rights, health, and the protection of unborn life.
It recognizes that while every woman deserves autonomy over her body, that autonomy must be exercised responsibly and within the legal framework designed to safeguard her well-being. At the same time, it strongly condemns and criminalizes those who exploit, deceive, or endanger women under the pretext of “helping” them.
In a society where women still face emotional, social, and economic pressures regarding pregnancy, Section 88 serves as both a shield and a reminder — that every life matters, and that no woman should ever be forced into choices that endanger her body or her dignity.
Through this law, justice seeks not only to punish wrongdoing but also to protect the most vulnerable — both the woman and the life growing within her.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304