BACK TO SECTIONS(2023) 4 SCC 1
Bailable (with consent); Non-Bailable (without consent or causing death)Cognizable: Non-Cognizable (with consent); Cognizable (without consent)Magistrate First Class / Court of Session
Reform Highlights
1
Renumbered from IPC 312–316 to BNS 104.
2
Must be read with MTP Act 1971 (amended 2021) — legal abortions within MTP conditions are not covered by BNS 104.
3
Forced termination of pregnancy (without woman's consent) carries 7 years.
4
Death of woman through illegal abortion — up to life imprisonment.
THE STATUTE
The Clause
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.
Legal Commentary
Section 104 addresses one of the most medically and ethically complex areas of Indian criminal law — forced or illegal termination of pregnancy. The provision must be read alongside the Medical Termination of Pregnancy (MTP) Act 1971 (as amended in 2021), which is the primary legislation governing the legal right to abortion in India. Under the MTP Act, termination of pregnancy up to 20 weeks is permissible with one medical practitioner's opinion; up to 24 weeks for specified categories (rape survivors, minors, differently-abled women, foetal abnormalities) with two practitioners' opinions; and beyond 24 weeks only by a Medical Board for severe foetal abnormalities. Section 104's criminal framework applies to: terminations outside the MTP Act's conditions (illegal abortions); terminations forced upon a woman without her consent; and terminations that cause the woman's death through negligence or recklessness. The graduated punishment reflects the severity: with the woman's genuine consent but outside legal conditions (3 years); without the woman's consent (7 years); and causing the woman's death (up to life imprisonment). The gender-selective abortion dimension is critical — in India, the systematic termination of pregnancies specifically because the foetus is female (sex-selective abortion) is criminalised under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act 1994, which operates alongside the BNS provisions.
Landmark Precedents
X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi (2022)
RELEVANCE
Supreme Court expanded access to abortion under the MTP Act for unmarried women — directly relevant to the scope of what remains criminalised under BNS 104 (illegal terminations) vs. what is legally permissible.
Case Simulations
"An unregistered clinic performing abortions beyond the MTP Act's gestational limits — illegal miscarriage under BNS 104."
"In-laws who coerce or force a pregnant woman to undergo termination to abort a female foetus — forced miscarriage under BNS 104 (up to 7 years) and PCPNDT Act."
"A quack who performs an illegal abortion that kills the woman — causing death through illegal miscarriage, up to life imprisonment under BNS 104."
Expert Insights
Yes, within the conditions of the MTP Act 1971 (amended 2021). Legal abortions within MTP conditions are not criminalised under BNS 104. BNS 104 criminalises forced terminations, illegal abortions outside MTP conditions, and terminations causing the woman's death.
Yes. A termination of pregnancy forced upon a woman without her consent — including by a husband — is a criminal offence under BNS 104, punishable by up to 7 years. Reproductive coercion is both a criminal offence and a form of domestic violence.