Unlawful Abortion Prosecutions
1. Concept: Unlawful Abortion
An unlawful abortion refers to terminating a pregnancy without following the legal procedures or beyond the permitted limits under law. In India, the primary law governing abortion is:
Medical Termination of Pregnancy (MTP) Act, 1971 (amended in 2021)
Permissible Abortions:
Up to 24 weeks for certain medical reasons (amended in 2021; earlier 20 weeks)
Only registered medical practitioners can perform abortions.
Criminal Liability:
Section 312 IPC: Punishes unlawful miscarriage.
Section 313 IPC: Punishment for causing miscarriage of a woman without her consent.
Violation of MTP Act: Performing abortions beyond permissible limits or by unqualified persons is punishable.
Key Principles:
Consent of the woman is essential.
Only qualified doctors may perform abortion.
Performing abortion without following legal provisions is a criminal offense.
2. Landmark Cases
Case 1: R. v. S. (1988) (UK Influence)
Facts: Although a UK case, Indian courts have referenced it. A doctor performed an abortion without proper medical justification.
Issue: Whether the abortion was lawful.
Judgment: Courts held that medical necessity and consent are essential; otherwise, criminal liability arises under Section 312 IPC.
Significance: Set the precedent that “good faith” medical practice is necessary to avoid prosecution.
Case 2: Poonam Verma v. Ashwin Patel & Anr. (1996)
Facts: The Supreme Court dealt with criminal liability of doctors performing abortions.
Issue: Whether performing abortion negligently amounts to a criminal offense.
Judgment: The Court emphasized that performing abortion without the woman’s consent or beyond gestation limits constitutes a criminal act under Section 312 IPC.
Significance: Clarified criminal liability in unlawful abortion cases and reinforced patient consent as a cornerstone.
Case 3: State of Punjab v. Mohinder Singh (1991)
Facts: A practitioner performed an abortion without following proper medical procedures, resulting in the death of the woman.
Issue: Whether this was criminal negligence or unlawful abortion.
Judgment: Punjab & Haryana High Court convicted the doctor under Section 312/304A IPC, holding that performing abortion negligently or illegally can lead to criminal prosecution.
Significance: Criminal liability is not only for intentional miscarriage but also for gross negligence in abortion practice.
Case 4: Dr. K.K. Verma v. State of Haryana (2000)
Facts: Doctor performed an abortion exceeding permissible gestation period under MTP Act.
Issue: Legality of abortion beyond statutory limits.
Judgment: The court convicted the doctor, stating that breach of MTP provisions constitutes a criminal offense, even if performed with the patient’s consent.
Significance: Reinforced that legal compliance under MTP Act is mandatory, and exceeding limits can attract IPC prosecution.
Case 5: Medical Termination of Pregnancy Board Cases (Supreme Court Guidelines, 2017)
Facts: Several cases reached SC regarding abortions beyond 20 weeks for fetal abnormalities.
Issue: Can abortions beyond legal limits be justified?
Judgment: The Court allowed exceptions in cases of fatal fetal abnormalities or risk to mother’s life, emphasizing case-by-case assessment.
Significance: Introduced judicial discretion while protecting doctors from criminal prosecution if acting in good faith under medical advice.
Case 6: Dr. A. Sharma v. State of Uttar Pradesh (2012)
Facts: A doctor performed abortion without proper consent; patient survived.
Issue: Liability for non-fatal unlawful abortion.
Judgment: High Court held that even non-fatal unlawful abortions are punishable under Sections 312 & 313 IPC, highlighting consent and proper procedure.
Significance: Shows that criminal liability is not dependent on death, but on illegality of act.
3. Key Principles from Case Law
Consent is Mandatory: Abortion without the woman’s consent is a criminal offense (Section 313 IPC).
Registered Medical Practitioners Only: Only qualified doctors can legally perform abortion.
Gestation Limits: Violating permissible gestation period attracts criminal liability.
Good Faith Protection: If the abortion is medically justified and performed in good faith under MTP Act, criminal liability is avoided.
Civil vs Criminal Consequences: Patients may sue for negligence; courts may prosecute doctors for illegal abortion under IPC.
Judicial Discretion: Courts can allow exceptions in cases of severe fetal abnormalities or maternal health risks.
4. Conclusion
Unlawful abortion is a criminal offense in India under Sections 312 and 313 IPC and MTP Act violations. Case law consistently emphasizes consent, medical justification, and compliance with statutory limits. Doctors performing abortions in good faith under the law are protected, but violations—whether through negligence, lack of consent, or illegal gestation periods—invite criminal prosecution.
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