Greater Kashmir’s Understanding the Law Initiative: The Law Between Heartbeats

The Bharatiya Nyaya Sanhita (BNS), 2023, marks a significant step forward in the evolution of India’s criminal jurisprudence by replacing the colonial-era Indian Penal Code of 1860 with a modern and indigenous legal framework. Two critical areas covered under the BNS include the offences of causing miscarriage and against children. The provisions dealing with such offences reflect the State’s commitment to safeguarding the bodily autonomy and dignity of women, particularly during pregnancy, and to protecting children from various forms of exploitation, harm, and abuse. The legislation imposes stringent penalties for acts such as causing miscarriage without consent, death resulting from attempted miscarriage, and offences that endanger or exploit children.

What is the punishment for voluntarily causing a pregnant woman to miscarry, if not done in good faith to save her life?

The person shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

What is the punishment if the woman is quick with child and a miscarriage is voluntarily caused without good faith?

The punishment shall be imprisonment of either description for a term which may extend to seven years, and the offender shall also be liable to fine.

Is a woman who causes herself to miscarry included under this offence?

Yes, a woman who causes herself to miscarry is considered within the meaning of this offence.

What is the punishment for causing a miscarriage without the woman’s consent?

The offender 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.

What is the punishment for causing the death of a pregnant woman by an act intended to cause miscarriage?

The offender shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

What is the punishment if such an act is done without the woman’s consent?

The punishment shall be either 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.

Is it necessary for the offender to know that the act was likely to cause death to be guilty of this offence?

No, it is not essential that the offender should know that the act is likely to cause death.

What is the punishment for an act done before the birth of a child with the intention of preventing the child from being born alive or causing it to die after birth?

The offender shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is not done in good faith for the purpose of saving the life of the mother.

What is the punishment for causing the death of a quick unborn child by an act that would amount to culpable homicide if it caused the death of a person?

The offender shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Is there an example of this offence?

Yes. If A, knowing that he is likely to cause the death of a pregnant woman, does an act which would amount to culpable homicide if the woman died, but the woman survives and the unborn quick child dies, A is guilty of this offence.

What is the punishment for a parent or guardian who exposes or abandons a child under twelve years of age with the intention of wholly abandoning the child?

The person shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Does this provision prevent prosecution for murder or culpable homicide if the child dies due to the abandonment?

No, it does not prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.

What is the punishment for concealing the birth of a child by secretly disposing of its dead body?

The offender shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

What is the punishment for hiring, employing, or engaging a child to commit an offence?

The offender shall be punished with imprisonment of either description which shall not be less than three years but may extend to ten years, and with fine.

What if the offence is actually committed by the child?

The person hiring or engaging the child shall also be punished with the punishment provided for that offence as if the offence had been committed by such person himself.

Does this include hiring a child for sexual exploitation or pornography?

Yes, hiring, employing, engaging or using a child for sexual exploitation or pornography is included within the meaning of this offence.

What is the punishment for procuring a child to go from any place or to do any act with the intent or knowledge that the child may be seduced or forced into illicit intercourse?

The offender shall be punished with imprisonment which may extend to ten years, and shall also be liable to fine.

What is the punishment for kidnapping or abducting a child under ten years of age with the intent to steal property from the child’s person?

The offender shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

What is the punishment for selling a child for the purposes of prostitution, illicit intercourse, or any unlawful or immoral purpose?

The offender shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Is there any presumption if a female under eighteen is sold or hired to a prostitute or brothel keeper?

Yes, until the contrary is proved, it shall be presumed that she was disposed of with the intent that she be used for the purpose of prostitution.

What is meant by illicit intercourse in this context?

It means sexual intercourse between persons not united by marriage or any recognized union or tie which constitutes a quasi-marital relationship under the personal law or custom of the community to which they belong or, if from different communities, of both such communities.

What is the punishment for buying or obtaining possession of a child for the purpose of prostitution, illicit intercourse, or any immoral or unlawful purpose?

The offender shall be punished with imprisonment of either description for a term which shall not be less than seven years but may extend to fourteen years, and shall also be liable to fine.

Is there any presumption if a prostitute or brothel manager obtains possession of a female under eighteen years of age?

Yes, until the contrary is proved, it shall be presumed that the female was obtained with the intent that she be used for the purpose of prostitution.

Therefore, the Bharatiya Nyaya Sanhita, 2023, has brought renewed clarity and legislative emphasis to crimes affecting some of the most vulnerable sections of society. By codifying offences relating to miscarriage and child protection in a comprehensive and structured manner, the law aims to strengthen deterrence and accountability. The enhanced punishments, inclusion of presumptive clauses and broadened definitions reflect a forward-looking approach grounded in constitutional values and social justice. However, the true efficacy of these reforms will depend on their consistent enforcement, informed interpretation by the judiciary and effective public awareness.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.