On 1st July 2024, India marked a historic shift in its legal framework with the introduction of three new major laws i.e., Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA).

In India, intentionally causing a miscarriage is a criminal offence punishable under the Bharatiya Nyaya Sanhita, 2023 (BNS). Miscarriage can have a traumatic impact on a woman both physically and emotionally. Its impact is more serious especially when it occurs due to the wrongful act of someone else. The BNS addresses such offences under Chapter V which deals with offences against women and children. Explore other important Judiciary Notes.

Section 92 BNS

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.

Note: “The information provided above has been sourced from the official website i.e Indian Code. While the content has been presented here for reference, no modifications have been made to the original laws and orders.”

Section 92 BNS aims to protect the life of an unborn child especially one that is far enough along in development to survive independently. It aims to criminalize actions that lead to the death of the child when done with knowledge or recklessness amounting to culpable homicide. The law does not require the child to be born alive nor does it mandate the death of the mother - only the unlawful killing of the quick unborn child is sufficient to constitute the offence.

What is Miscarriage?

The Bharatiya Nyaya Sanhita does not expressly define the term ‘miscarriage.’ It refers to the termination of pregnancy before the fetus can survive independently. When someone deliberately causes this termination with malicious intent then it becomes a criminal act. In such case the aggrieved woman has the right to seek legal remedy. The following are the difference between miscarriage and abortion -

Download 5 Key take aways on Section 92 BNS PDF

Section 92 BNS Essential Elements

It is important to understand the application of Section 92 of Bharatiya Nyaya Sanhita . The following are the essential elements of Section 92 BNS -

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.

Section 92 BNS Punishment

Section 92 of Bharatiya Nyaya Sanhita deals with acts that cause the death of a quick unborn child in such circumstances that would otherwise amount to culpable homicide if the woman had died .

• Up to 10 years imprisonment with or without a fine.

Section 92 BNS is specified as a grave offence with significant legal implications . The nature and scope of the provision shows the seriousness with which the law treats the death of a quick unborn child. Now the question is whether Section 92 BNS bailable or not? Section 92 of Bharatiya Nyaya Sanhita is -

• Cognizable: Police can arrest the accused without a warrant.
• Non-bailable: The accused cannot claim pre-trial bail as a matter of right.
• Non-compoundable : The case cannot be settled through mutual agreement.
• Trial Process: The offence is triable only in the Court of Sessions.

Section 92 BNS Important Cases

The courts in India have consistently interpreted the scope of Section 92 BNS by analysing the graveness of the offence . The following landmark judgments provides insights into how Section 92 BNS (earlier Section 503 IPC) has been interpreted by the Judiciary

Rajesh Kumar v. State of Chhattisgarh (2024)

The Court held that when the fetus is fully developed causing its expulsion from the womb cannot be considered as a ‘miscarriage’ under Section 312 of Indian Penal Code (Now Section 92 BNS). The provision only applied to earlier stages of pregnancy.

Imtiaz Ismail Shaikh v. State of Gujarat (2008)

In this case, the Court held the accused liable for causing miscarriage without the consent of the woman. The Court highlighted that consent is an important factor and its absence aggravates the offence.

Comparison of Section 92 BNS vs Section 316 of IPC

Section 92 of Bharatiya Nyaya Sanhita and Section 316 of Indian Penal Code deal with the offence of causing the death of a quick unborn child. The following highlights the differences between Section 92 BNS and Section 316 under Indian Penal Code.

Conclusion

BNS 2023 carries forward and strengthens the previous provisions of Indian Penal Code related to miscarriage and unborn child protection. Section 88 to Section 92 BNS ensure accountability for unlawful acts leading to miscarriage or the death of an unborn child. Section 92 treats the death of a quick unborn child as equivalent in seriousness to culpable homicide.

• Cognizable: Police can arrest the accused without a warrant.
• Non-bailable: The accused cannot claim pre-trial bail as a matter of right.
• Non-compoundable : The case cannot be settled through mutual agreement.
• Trial Process: The offence is triable only in the Court of Sessions.