BACK TO SECTIONS(2009) 9 SCC 1
BailableCognizable: Non-CognizableMagistrate First Class
Reform Highlights
1
Renumbered from IPC 312 to BNS 88.
2
Substantive law unchanged — illegal abortions outside the MTP Act framework remain criminal.
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 88 maintains the criminal law framework around abortion as a complement to — not a replacement for — the Medical Termination of Pregnancy (MTP) Act, 1971 (as amended in 2021). The MTP Act is the primary legislation governing legal abortion in India, permitting termination under specified medical and social conditions up to 20 weeks (and up to 24 weeks in certain categories). BNS 88 punishes abortions that fall outside the MTP Act's framework: terminations performed outside licensed facilities, by unqualified practitioners, or without the required medical grounds. The section makes a legally significant distinction between a woman who is 'with child' (early pregnancy) and one who is 'quick with child' (when foetal movement has begun, typically 16–20 weeks) — imposing a higher maximum of 7 years for later-term terminations. The good faith exception — 'caused for the purpose of saving the life of the woman' — ensures that emergency medical interventions to save a woman's life are never criminalised. Importantly, the section applies to persons who cause the miscarriage — a woman who undergoes an abortion is not herself the offender under this provision; BNS 89 (without consent) separately addresses coerced abortion. This distinction matters: the law criminalises unregulated abortion providers, not women making reproductive choices within legal limits.
Landmark Precedents
Suchita Srivastava v. Chandigarh Administration (2009)
RELEVANCE
Reproductive autonomy is a fundamental right under Article 21 — the Court's analysis of forced abortion informs the boundary between legal and illegal termination under BNS 88.
Case Simulations
"An unregistered 'clinic' performing abortions in unsafe conditions outside the MTP Act framework — the practitioner is liable under BNS 88."
"A person providing misoprostol or other abortion-inducing drugs to a pregnant woman outside the MTP Act framework — BNS 88."
"An emergency termination to save a woman's life from a ruptured ectopic pregnancy performed by a licensed gynaecologist — protected by the good faith exception."
Expert Insights
BNS 88 penalises illegal abortions performed outside the MTP Act framework. Legal abortions conducted under the MTP Act by qualified practitioners in registered facilities are not affected by BNS 88 — the section explicitly excludes acts done 'in good faith for the purpose of saving the life of the woman' and, by extension, those done lawfully under the MTP Act.
The section says 'whoever voluntarily causes a woman... to miscarry' — it has been interpreted to include a woman causing her own miscarriage. However, prosecutions of women for self-induced abortions are rare and legally contentious. The more common prosecutions are of unregistered abortion providers.
'With child' means pregnant at any stage. 'Quick with child' traditionally referred to when foetal movement was perceptible (quickening), typically around 16–20 weeks. The distinction affects the maximum punishment: up to 3 years before quickening, up to 7 years after.