Legal Advice

Can victim lodge FIR after forceful abortion

Question: My cousin was in a relationship with a boy from a different religion for three months. They were serious and were planning to get married in future. However my cousin became pregnant by accident. When the boy informed his parents they immediately restrained him from contacting my cousin. She got an abortion done without taking a single rupee from them. She is unable to contact the boy as his parents have taken complete control. Now my cousin wants to lodge an FIR against the boy. She doesn't have any money and she lives all alone in the city where the boy and his family lives. If my uncle and aunt find out they will throw her out of the house. In such a scenario can she lodge and FIR and go to court?

Advise

Yes, a victim has the right to lodge a First Information Report (FIR) after a forceful abortion. If someone has been subjected to a forceful abortion, it can be considered a criminal offense, and the victim can report the incident to the police. The police will then initiate an investigation based on the information provided in the FIR. The relevant sections of the IPC that may apply in such cases include:

Section 312 IPC: Causing Miscarriage

“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.”

Essential elements of the Offense:

  • The accused must voluntarily cause a woman with child to miscarry.
  • If the miscarriage is not done in good faith for the purpose of saving the life of the woman, it becomes an offense.
  • The punishment varies depending on whether the woman is quick with child (i.e., the fetus is capable of independent life outside the womb).

The section provides for an exception if the miscarriage is caused in good faith for the purpose of saving the life of the woman. In such cases, the act is not considered an offense.

Section 313 IPC: Causing Miscarriage without Woman’s Consent

“Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be 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, and, if the woman is quick with child, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, with fine, and, if the woman dies, shall also be liable to punishment for culpable homicide.”

This section criminalizes the act of causing a miscarriage without the woman’s consent, regardless of whether the woman is quick with child (i.e., the fetus is capable of independent life outside the womb) or not.

Elements of the Offense:

  • The accused commits the offense of causing miscarriage without the woman’s consent.
  • The punishment varies based on whether the woman is quick with child.
  • If the woman dies as a result of the act, the accused may also be liable for culpable homicide.

Punishment:

  • If the woman is not quick with child, the punishment is imprisonment for life or imprisonment of either description for a term up to ten years, and the accused may also be liable to a fine.
  • If the woman is quick with child, the punishment is more severe, with imprisonment for life or imprisonment of either description for a term up to ten years, along with a fine.
  • If the woman dies due to the act, the accused may face additional punishment for culpable homicide.

Section 315 IPC: Act done with intent to prevent child being born alive or to cause it to die after birth

Section 315 of the Indian Penal Code (IPC) deals with the act of preventing a child from being born alive or causing it to die after birth. Section 315 read as follows.

“Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose only of preserving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.”

Elements of the Offense:

  • The accused must perform an act before the birth of a child.
  • The act must be done with the intention of preventing the child from being born alive or causing its death after birth.
  • If the act results in preventing the child from being born alive or causing its death, and if it is not done in good faith for the sole purpose of preserving the life of the mother, it becomes an offense.

Punishment:

  • The punishment for the offense is imprisonment of either description for a term that may extend to ten years, or with a fine, or with both.

Exception:

  • The section provides an exception if the act is done in good faith for the sole purpose of preserving the life of the mother. In such cases, the act is not considered an offense.

Based upon the facts you can lodge FIR in any of the above-mentioned sections which squarely covers your case. If pregnancy was at too early-stage section 315 will apply. In case, it was at the advance stage then section 312 & 313 will apply depending upon the mental state of the victim.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Criminal Law

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