Section 89 BNS: Causing Miscarriage without Woman’s Consent

Section 89 BNS addresses the act of causing a miscarriage without the woman’s consent. It states that if someone performs this act, regardless of whether the woman is in an advanced stage of pregnancy ("quick with child") or not, they can face life imprisonment or imprisonment for up to ten years, along with a fine. This offence is classified as cognizable, non-bailable, and is tried in a Court of Session. Explore other important Judiciary Notes.

Section 89 BNS: 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 41 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.

Note: “The information on Section 89 BNS 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.” 

Download Free PDF on Section 89 BNS 2023 PDF

Section 89 BNS is an important legal provision that deals with causing miscarriage without the woman’s consent and sets clear boundaries for determining the culpability of the accused, whether or not the woman is, “quick with the child”.

Section 89 of BNS makes it a serious offense to cause a miscarriage without a woman's permission. If someone is found guilty, they could face a punishment sentence, potentially for life, or up to ten years, and they would also have to pay a fine. Essentially, section 89 of Bharatiya Nyaya Sanhita strongly supports a woman's right to decide what happens to her body. 

Section 89 BNS Essential Ingredients

To understand how Section 89 BNS (Bharatiya Nyaya Sanhita, 2023) applies, it is important to look at the key legal components, or essential ingredients, that must be present for someone to be charged under this section: 

• An act must be committed: 

This is the foundational element. The accused person to be held liable under section 89 BNS, must undertake a specific action or conduct. This act could be physical, such as a physical assault on the pregnant woman, or it could involve administering substances or employing other means intended or known to be likely to cause a miscarriage. Section 89 BNS focuses on the action of the accused that directly leads to the miscarriage.

• The act causes a miscarriage:

 This establishes the direct consequence of the accused's action. A "miscarriage" refers to the premature expulsion of a fetus from the womb before it is capable of surviving independently. A causal link between the act committed by the accused and the resulting miscarriage needs to be proved for it to be covered under section 89 BNS.

• Lack of consent: 

To be covered under section 89 of BNS the miscarriage has to take place without the consent of the pregnant woman. This implies that the consent must be:

1. Free: The consent must be free from any form of coercion, force, threats, or undue influence. The woman must make the decision voluntarily.
2. Informed: The woman must have been provided with adequate information about the nature and consequences of the act that led to the miscarriage. She must understand what she is consenting to. If she is misled, her consent may not be considered valid.
3. Given by the woman: The consent must come from the pregnant woman herself. No one else, not even her family or partner, can give valid consent on her behalf for an act that results in a miscarriage.

The absence of this valid consent is what transforms an act that might otherwise be a medical procedure (with consent) into a criminal offence under Section 89 BNS.

• Knowledge or Intention:

The person committing the act must have done so knowingly or intentionally, fully aware that the act would result in a miscarriage as provided under Section 89 BNS.

Section 89 BNS is essentially a modernized version of Section 313 Indian Penal Code, retaining the core legal principles. The punishments and exceptions remain identical.

Section 89 BNS Judicial Interpretation

Judicial interpretation of section 89 BNS by Indian courts has been crucial in determining the ambit and scope of essential elements of section 89 of BNS, mentioned hereinafter are some of the landmark judgments related to the provision :

• Imtiaz Ismail Shaikh vs State of Gujarat (2008)

This case established that causing a miscarriage without the pregnant woman's consent constitutes a criminal offence under section 89 BNS. This ruling serves as a clear and foundational precedent for the principle now embodied in both the former Section 313 of Indian Penal Code (IPC) and the current Section 89 BNS.

• Prabhu Alias Kulandaivelu vs. State Of Tamil Nadu (2018)

In this case, while the Supreme Court was considering a case that initially involved charges of rape, its judgment brought clarity to the significance of consent in the context of medical termination of pregnancy under Section 313 IPC, now Section 89 BNS. The court specifically highlighted the testimony of the medical professional who performed the abortion. The key takeaway was that if a woman provides her free and informed consent for a medical termination of pregnancy, the elements of the offence of causing a miscarriage without consent are not satisfied.

• Anupaben Vidyutbhai Desai v. State Of Gujarat (2010)

This Gujarat High Court case specifically involved a medical practitioner. It brought to the forefront the intersection between Section 313 IPC (now Section 89 BNS) and the Medical Termination of Pregnancy (MTP) Act. 

• Madhavi v. State of Maharashtra (2005)

This case is considered the implications of Section 313 IPC now section 89 BNS within the context of domestic violence, where a husband allegedly forced his wife to have an abortion. Any act that results in a miscarriage without her free consent is a criminal offence.

Conclusion

Section 89 BNS stands as a powerful reminder that consent isn’t optional; it’s fundamental. When it comes to autonomous rights related to a woman’s body, the provision stands right at the center so as to act as a protective shield. 

Section 89 Bharatiya Nyaya Sanhita affirms that no one has the right to interfere with a woman’s choice. Section 89 of BNS, reflects a shift toward respecting bodily autonomy and ensuring that women are entitled to make decisions regarding their own pregnancy, free from any type of coercion. Read other sections related to the offence of Causing Miscarriage.