Page | 1

Chapter-4

ABORTION AND RELATED LAW IN INDIA

During the last few years many countries have liberalized their abortion
laws. Many countries are having very restricted abortion laws and there are
many countries where abortion is available at the request of woman. Among
all those countries India made the abortion laws liberal in 1971 by enacting
Medical Termination of Pregnancy Act which was designed to create certain
exceptions to the strict provisions of IPC and PNDT Act 1994.
Abortion policy in India is consistent with safeguarding reproductive
rights as envisaged by International Conference on Population and
Development (ICPD) and similar other international agreements. It does not
advocate abortion as a family planning measure. Rather, it encourages the
promotion of family planning services to prevent unwanted pregnancies and
at the same time recognizes the importance of providing safe, affordable,
accessible and acceptable abortion services to women who need to terminate
an unwanted pregnancy.
4.1 The Indian Code, 1860
The law of the land has always held human life to be sacred and the
protection that the law gives has been extended also to the unborn child in
the mother's womb. He must not be destroyed except for preserving the yet
more precious life of the mother, keeping this in view the code has
designated causing miscarriage a serious offence.
Section 312 to 316 of the Penal Code deal with the penal abortions.
These sections have been placed under the chapter of offences affecting
human body. Section 3121 of the Penal Code provides that a person who

1. I.P.C.s. 312 :
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
 Page | 2

voluntarily causes a miscarriage to a woman with child, will be punished with

the imprisonment for three years or fine or with both. The offence is not-
cognizable, bailable and not-compoundable. If the woman is quick with child
the sentence may go upto seven years and fine, unless the miscarriage is
caused in good-faith for saving the life of the woman. Any woman who
causes miscarriage to herself will also be liable under this section by virtue of
the explanation appended thereto. It is evident that section 312 comes into
play when the abortion is done with the consent of the aborted woman. The
accused may be woman herself or some other person who has acted with her
consent. If the woman is not the consenting party then the case will be
governed by section 313 of the Penal Code. To appreciate fully the
implications of section 312 the words "voluntarily," "with child" "good-faith"
and "quick with child" may understood first. Section 39 of the Penal Code
defines "voluntarily," as "a person is said to cause and effect "voluntarily"
when he causes it by means whereby he intended to cause it, or by means
which, at the time of employing those means, he knew or had reasons to
believe to be likely to cause it." It would be noted that word "voluntarily" has
been defined in relation to the causation of effects and not to the doing of
acts form which those effects result. It has been given a peculiar meaning
differing widely from its ordinary meaning.2
The second requirements of section 312 is that the woman should be
"with child" or "quick with child." A woman is "with child" as soon as gestation

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.
Explanation – A woman who causes herself to miscarry, is within the
meaning of this section.
In the I.P.C. (Amend.) Bill, 1972, it has been proposed to insert the words
"except in accordance with the provisions of the Medical Termination of
Pregnancy Act, 1971, Sec cl. 127 of the Bill.
2. Ratan Lal and Dhiraj Lal, The Law of Crimes 81 (1971 edn.)
 Page | 3

begins i.e. as soon as she is pregnant.3 'Quickening' is perception by the

mother that the movement of the foetus has taken place or the embryo has a
foetal form.4 It is a more advanced stage of pregnancy.5 'Quickening' is the
name applied to peculiar sensations experienced by a woman in the fourth
and fifth month of pregnancy. The symptoms are popularly ascribed to the
first perception of the movements of the foetus. However, it may be
mentioned that the 'Quickening' is not a constant, uniform and well-marked
distinction of the pregnant state. 6
If the abortion is caused in good faith to
save the life of the pregnant woman it is a complete defence against the
criminal charge under section 312 of the Penal Code. The necessity to save
the life of the mother does not require that miscarriage be done only by a
registered medical practitioner.
Section 52 of the Penal Code defines "good faith". It lays down
"Nothing is said to be done believed in 'good faith' which is not done or
believed without due care and attention." It will be noticed that the definition
is negative in terms. It merely states that an act is not done in good faith if it
is not done with due care and attentions. The care and caution expected in
that of the person acting in the situation and not of a 'prudent person'.
Absence of good faith means simply carelessness or negligence.7 The element
of honesty is not essential under this definition.8 In an English case R.v.
Bourne,9 a girl below the age of fifteen years became pregnant as a result of
rape committed by several soldiers. The accused, who was a surgeon of
highest skill performed the abortion after informing the police. He was
charged under the Offences against the Person Act, 1861, for unlawfully

3. Queen Empress v. Ademma, III I. D. Madras (N.S.) 653, (1886), I.L.R. 9,

369.
4. Ibid.
5. In re Malayara Seethu, A.I.R. 1955 Mys. 27.
6. Margan and Macpherson's Indian Penal Code 278.
7. Bux Soo Meah Choudry v. The King (1938) 39 Cri. L. J. 985.
8. H. Singh v. State of Punjab, A.I.R. 1966 S.C. 97, 1966 Cr. L. J. 82.
9. (1938) 3 ALL E.R. 615; (1939) I K. B. 687.
 Page | 4

procuring the abortion. It was held that to procure abortion is unlawful unless
it is done in good faith in order to save the life of the mother. It was further
held that the surgeon had not to wait till the patient was in peril of immediate
death, but it was his duty to perform the operation, if, on reasonable
grounds, and with adequate knowledge, he was of the opinion that the
probable consequence of the continuance of the pregnancy would be to make
patient a physical and mental wreck. It was also ruled that the burden of
proof to disprove the good faith of the surgeon will be on the prosecution.
The surgeon was found not guilty.
Voluntarily causing miscarriage would include such act as the delivery
of medicine for that purpose. Acts unrelated to such causation do not come
within the purview of the Penal Code. Where the accused merely pledged
ornaments to raise money with the intention to aid and facilitate the abortion
of a pregnant woman he was held 10
not liable for the offence of miscarriage
but could be properly charged with the abetment of the offence.11
The administering of harmless substance was held not to be an act
towards the commission of the offence under section 312 of the Penal Code.12
The Calcutta High Court has held that where the child in the womb is full
grown, the accused cannot be convicted for causing miscarriage under
section 312 of Penal Code because the section only contemplates expulsion of
child from the mother's womb before the period of gestation is completed.13 It
was held that the accused could not be convicted for an attempt to cause

10. Emperor v. Mariam Sidi, (1909) to Cr. L.J. 19 K.L.R. 40.

11. I.P.C.s. 109 :
Whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this Code
for the punishment of such abetment, be punished with the punishment
provided for the offence.
Explanation – An Act or offence, is said to be committed in consequence of
abetment, when it is committed to consequence of the instigation, or in
persuance of the conspiracy or with the aid which constitutes the abetment.
12. Asgarali v. Emperor, A.I.R. 1933 Cal. 893 (D.B.) 35 Cri. L. J. 97.
13. Queen v. Arunja Bewa, (1873) 19 Suth. W.R. (Cr. Rul.) 31 (1)
 Page | 5

miscarriage.14 The decision has been rightly criticised on two grounds viz, first,
how the period of gestation can be held to be completed so long as child is
still in the womb? Secondly, it is not dear how can there be no miscarriage
when the child is full grown in womb, and there will be an attempt to cause
miscarriage in the same set of circumstances.15
Where the pregnant woman throws herself into a well because she
could not endure the travails of labour pain, it was held by the Allahabad High
Court that she could not be convicted of the offence under section 312 of the
Penal Code because she intended to put and end to her own life and not to
cause miscarriage which resulted from her act.16
When the child was born alive and the pregnancy was beyond seven
months, medically it was held not to be a case of miscarriage but of
premature labour. The doctors and the nurses who facilitated or accelerated
the delivery could not be treated as offenders under section 312 of the Penal
Code because they might have acted with no criminal intention to cause
injury to the pregnant mother or to her pregnancy. There is no offence
committed by them specially when the child was born alive and no injury was
caused to it or the mother.
Section 313 of the Indian Penal Code makes it punishable to cause
miscarriage without the consent of the woman. The gravity of the offence is
enhanced. To understand the importance of section 31317 of the Code it is
necessary to know what constitutes "consent" ? Section 90 of the Penal Code

14. I.P.C.s. 511 penalises those attempts which have not been specifically
provided for alongwith the relevant offences, and prescribes punishment
extending upto the half of the maximum term of imprisonment prescribed for
the attempted offence, or with similar fine or with both.
15. 3 Chitaley and Rao : The Indian Penal Code 2702 (1970).
16. Emperor v. Mulia, 17 A.L.J. 478; (1919) 20 Cr. L. J. 395.
17. I.P.C.s. 313 :
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 also be liable to
fine.
 Page | 6

states what cannot be deemed to be consent. No consent can be given under

fear of injury or misconception of fact, or under unsoundness of mind or in
intoxicated state, or by a child below twelve years of age unless the
circumstances are otherwise.18
Consent is an act of reason, accompanied with due deliberation, the
mind weighing, as in a balance, the good and evil on each side.19 It means an
active will in the mind of a person to permit the doing of the act complained
of, and knowledge of what is to be done, or of the nature of the act that is
being done, is essential to a consent to the act.20 Consent may be express or
implied. It may not be necessary that it should be expressly worded with
accuracy. If the woman knowingly takes an abortifacient, she impliedly
consents for abortion.21
Unlike section 312, section 313 draws no distinction between "woman
with child" and "woman quick with child", and punishes only the person who
causes miscarriage, obviously because woman is not a consenting party. The
prosecution has to prove all the ingredients of the offence of section 312 and
also the absence of the women's consent. The offence is cognizable, not
bailable, not compoundable and is triable by the court of sessions.22

18. I.P.C.s. 90 :
A consent is not such a consent as is intended by any section of this Code, if
the consent is given by a person under fear of injury, or under a mis-
conception of fact, and if the person doing the act knows, or has reason to
believe, that the consent was given in consequence of such fear or
misconception; or
If the consent is given by a person who, from unsoundness of mind, or
intoxication is unable to understand the nature and consequence of that to
which he gives his consent; or
Unless the contrary appears from the context, if the consent is given by
person who is under twelve years of age.
19. Story on Equity Jurisprudence : § 222 at 137 (Ist edn. 1884).
20. Lock, (1872), L.R. 2 C.C.R. 10 at 11.
21. Queen v. Kala Chand Gope, (1868) 10 South W.R. 59.
22. Cr. P. C. 1973, ch. I. Under Cr.P.C. 1898 the only difference was that the
offence was non-cognizable. Whereas this offence under Sec. 312 of the
Penal Code, continues to be a non-cognizable and bailable, with the only
 Page | 7

When an accused intending to cause only miscarriage to a woman with

child causes her death, he is convicted under section 314 of the Penal Code.23
The offence is aggravated if the accused has acted without the consent of the
woman. In order to render the accused liable it is sufficient to prove that the
act was done to cause miscarriage. It is immaterial whether the act done was
or was not intended or known to cause death. Since the accused did the act
which was illegal, he must be liable, to all its consequences.
An accused administered a poisonous drug to a woman to procure
miscarriage which resulted in her death. But it was not proved that he knew
that the drug was likely to cause death. The accused was, therefore, not
convicted for murder but under section 314 of the Penal Code. In another
case, when it remained uncertain whether the deceased was murdered or had
died from the effects of an attempt to cause the miscarriage against her will it
was held that the accused could be convicted either under section 302 for the
offence of Murder or under section 314.24
In view of the surreptitious activities involved in the offence of
miscarriage, availability of direct evidence is often difficult. The absence of
such evidence against the accused leads sometimes to the harassment of
innocent or in failure to fix the criminal liability. In Dr. I. K. Kazi v. The State
of Gujarat, 25one Chandan, a twenty eight year old widow had four children.

change under the new Cr. P.C. that it is now triable by a magistrate of the
first class instead of a court of sessions as it was under the old Cr.P.C.
23. I.P.C.s. 314 :
Whoever, with intent to cause the miscarriage of a woman with child, does
any act which causes the death of such woman, shall be punished with
imprisonment of either description for a term a which may extend and ten
years, and shall also be liable to fine;
and if the act is done without the consent of the woman, shall be punished
either with imprisonment for life, or with the punishment above mentioned.
Explanation : - It is not essential to this offence that the offender should
know that the act is likely to cause death.
24. Queen Empress v. Musemmat Bitana, Oudh S.C. 157.
25. Criminal appeal no. 181/63 decided on September, 9, 1965. The judgement
has not been reported in law reports. See the Supreme Court of India Blue-
prints.
 Page | 8

The eldest one was a daughter, about twelve years of age. The deceased had
conceived out of wedlock and appeared to have agreed to abortion as a
wayout of the embarrassing situation. The timing of the alleged abortion was
crucial in the case. Chandan was seen last in the company of her daughter in
the afternoon of March 29, 1961, thereafter she was allegedly brought to her
sister's place in the noon of March 30, 1961 by the appellant who was a civil
surgeon. At that time Chandan was sick and the appellant had give her some
medicines. The appellant again called on her on April 1, 1961 and wanted to
give her more medicines, but the sister of the deceased and her husband did
not allow him to do that Chandan stayed at her sister's place upto April 7,
1961 and was taken on April 8, 1961 at her instance to the hospital of which
the appellant was the incharge. The appellant got her admitted to the septic
ward as a patient suffering from septic due to incomplete abortion. The lady
doctors subordinate to the appellant examined Chandan and diagnosed her a
patient of acute peritonitis. She was removed, on April 9, 1961, to another
bigger hospital, where the attending doctors advised immediate operation and
asked the sister and brother-in-law of Chandan to give their consent and
donate blood for her. They refused. However, the honorary specialist doctor
performed the operation. Chandan could not survive and died on April 13,
1961. She was declared to have died of tetanus arising out of a criminal
abortion. Dr. Kazi was prosecuted under section 314 for having caused death
through illegal abortion and also under section 336 of the Penal Code for
having rashly or negligently endangered Chandan's life by giving her an intra
uterine douche. The trial court acquited the appellant in respect of both the
charges.
On an appeal filed by the state, the Gujarat High Court upheld his
acquittal under section 336 but convicted him under section 314, part I and
sentenced him to simple imprisonment for one year. Dr. Kazi appealed to the
Supreme Court. Justice Sarkar (as he then was ) delivered the judgement of
the Court, and held that the sole question in the instant case was whether the
recorded evidence established that the surgical interference with Chandan
 Page | 9

took place between 4-00 p.m. on March 29 and the noon of March 30, 1961,
and whether the appellant was responsible to bring about the abortion? The
learned Judge found no evidence to disbelieve the appellant's version that the
deceased had seen him first in the noon of March 30, 1961 at his hospital.
She had told him that she was carrying for three months and was bleeding for
a week. And that he had begun to treat her to prevent the threatened
miscarriage. He had told Chandan's sister about the indisposition and advised
the patient complete rest. The defence arguments that (1) the alleged act
could not have been the act of the doctor of the appellant's eminence; (2) as
the sister and brother-in-law of Chandan disallowed Dr. Kazi to continue the
treatment, they might have been interested in getting Chandan aborted,
might have procured it and that act had actually resulted in the fatal
complication; (2) that for fear of detection of their involvement they refused
to give their consent for the operation or to donate blood. Justice Sarkar,
disagreeing with the High Court, concluded on the basis of the proved
evidence and facts, that neither it could be said that the alleged abortion was
during the crucial period, nor that the appellant had caused it. The appellant
was, therefore, acquitted.
In Madan Raj v. State of Rajasthan,26 the appellant was convicted by te
additional sessions judge, Jodhpur under section 314 read with section 109 of
the Penal Code. The prosecution story was that some days prior to May 1,
1963 the appellant had abetted one Mst. Radha at Jodhpur ot cause
miscarriage to Miss Atoshi Dass alias Amola who as a result of administration
of tablets and introduction of 'lamiaria denot' died on May 10, 1963. It was
alleged that the aborted pregnancy was the result of illicit relations between
the appellant who at the material time (1962-63) was president of gramothan
pratishthan, Jalore and the deceased was a young teachers in a school
undeer his management. The defence of the appellant was of denial. Mst.
Radha a dai was also tried with the appellant but was acquitted for the lack of

26. A.I.R. 1970 S.C. 436, [1970] I.S.C.R. 688.

 Page | 10

evidence to show her involvement in the crime. The appellant was convicted
by the trial court and by the High Court. He filed appeal in the Supreme Court
on special leave to appeal. The Supreme Court upheld the findings of lower
courts so far as the cause of death of the deceased, and the existence of her
illicit relations with the appellant were concerned but disagreed that the
evidence was sufficient to prove that the appellant has abetted the crime. The
appellant was, therefore, acquitted. An additional ground of procedural
irregularity committed by the lower court also went in favour of the
appellant27 . The trial of the accused had proceeded on the charge of abetting
his co-accused Mst. Radha, against this allegation he had been defending
himself, but he was convicted on the charge of having abetted the deceased
to get herself aborted.28
The offence under section 314 is cognizable, not bailable, not
compoundable, and is triable by the court of session.29 The provisions of
section 315 and 316 though deal with the acts akin to miscarriage, in main,
penalise causing death to born or unborn child at the time of birth. Section
31530 punished an act done with intention of "preventing the child from being

27. On the ground of procedural irregularity the court follwoed its decision in
Fagnna Kanta Nath v. State of Assam, A.I.R. 1959, S.C. 673, (1959) 2 Supp.
S.C.R.I.
28. Hegde J. observed :
Form the cross-examination of the prosecution witnesses, it is seen that the
principal attempt as made on behalf of the appellant was to show that he had
nothing to do with the co-accused. Mst. Radha. He could not have been
aware of the fact that he would be required to show that he did not in any
manner abet the deceased to cause miscarriage.
Supra n. 48 at 438.
29. Cr. P. C. 1973 ch. I Under Cr. P. C. 1893, the only difference was that the
offence was non-cognizable.
30. I.P.C.s. 315 :
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 of saving the life of the mother be punished with imprisonment
 Page | 11

born alive or" causing "it to die after its birth," except when it is done in good
faith for the purpose of saving the life of the mother. The act resulting in
death of the child after its birth, is not, strictly speaking, an act of causing
miscarriage. In some situations it may be only a technical offence, in other
cases it may be a case of deliberate infanticide to prevent an inheritance, or
other civil rights accuring to the born child. The offence committed under this
section is of foeticide of the fully developed foetus in case the child is killed
before its birth, or infanticide when death is caused immediately after birth.
The difference between infanticide and such foeticide is only of sequence
although considerable in consequences. The former is committed after
delivery and may amount to murder and the latter before delivery while the
child is still in the womb. The offence is cognizable, not bailable, not
compoundable and triable by the court of sessions.31
Section 31632 on the hand, designated the act which results is causing
death to the quick unborn child, as culpable homicide, it it would have caused
death of the person (mother) against whom it was directed. The accused
under this section need not necessarily cause miscarriage or intend to kill the
child in womb. However, if the accused does an act likely to cause its death,
though neither intended nor desired, he would be guilty under this section. In
other words where an act or omission is of such a nature and done under
such circumstances as would constitute the culpable homicide, if the sufferer
were a living person, if done to a quick unborn child, whose death is caused
by it, will be punishable under this section. The offence under section 316 is

of either description for a term which may extend to ten years, or with fine or
with both.
31. Cr. P.C. 1973, sch. I Under Cr. P. C. 1898 the only difference was taht the
offence was non-cognizable.
32. I.P.C.s. 316 :
Whoever does any act under such circumstances, that if he thereby causes
death he would be guilty of culpable homicide, and does by such act cause
the death of quick unborn child, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine.
 Page | 12

committed where the pregnancy has advanced beyond the stage of

quickening and where the death is caused after the quickening and before the
birth of the child. The ingredients of the offence are (1) that the woman was
quick with the child; (2)that the accused did an act to cause the death (3)
that the circumstances under which such act was done were such as to make
the accused guilty of culpable homicide, if death had been caused; and (4)
that such act did cause the death of the quick unborn child.33 For example, if
a person hits a pregnant woman and causes death of quick unborn child, he
would be guilty of the offence defined in this section, if the blow was intended
to cause death of the woman or one which he knew or had reason to believe
to be likely to cause a death, the act complained of must be done with
requisite intention or knowledge as to constitute means rea under criminal
law. Merely because death of the child in womb has taken place will not
attract this section. It will be the burden of prosecution to prove that the
accused had acted in such a manner from which it can be inferred that he
had the intention or knowledge to cause death of the victim of his assault and
which would have amounted to be an offence of culpable homicide.34 If the
death of the victim has resulted then it will not be covered by section 316.35
The offence under section 316 is cognizable, not bailable, not compoundable
and triable by the court of session.36
4.2 The Medical Termination of Pregnancy, 1971
The idea of a liberalized law of abortion was first mooted by the
Central Planning Board of the Government of India is 1964 as a family
planning measure.37 The Government of India in 1964 constituted the Shanti
Lal Shah committee to suggest measures for reform in the existing law of

33. Biranchi Gour v. Subhagi Dei, 1970 Cut,. L.T. 711.

34. Jabbar v. State, A.I.R. 1966 All 590; 1966 Cr. J.L. 1363.
35. Pappan v. State, A.I.R. 1953 T.C. 374, 1953 Cr. L. J. 1551.
36. Cr.P.C. 1973 sch. I Under Cr. P. C. 1898 the only difference was that the
offence was non-cognizable.
37. Amar Jesani, and Aditi Iyer, "Women and Abortion", 27 Economic and
Political Weekly (1993).
 Page | 13

abortion. The recommendations of the Committee were accepted and the

MTPA was passed in 1971 and came into operation on 1st April 1972. To avoid
the misuse of induced abortion and to soften the rigors of the law of abortion
contained in the Indian Penal Code, the Medical Termination of Pregnancy
Act, 1971 was passed. It is a small Act consisting of only eight sections. This
enactment has been hailed as a major landmark in India's social legislation
and a far-reaching measure assuring the women in India freedom from
undersirable and unwanted pregnancies. The Medical Termination of
Pregnancy Act, 1971, equips women with legal provision to abortion. It
provides that a pregnancy may be terminated where the length of the
pregnancy does not exceed twenty weeks,38 if two or more medical
practitioners39 are of the opinion that the continuance of the pregnancy would
involve a risk to the life of a pregnant woman or a grave injury to her physical
or mental health [as per Section 3(2)(i)] or when there is a substantial risk
that if the child were born, it would suffer from such physical or mental
abnormalities as to be seriously handicapped [as per Section 3(2)(ii)]. It can

38. S.3 When pregnancies may be terminated by registered medical practitioners-

(1) Notwithstanding anything contained in the Indian Penal Code [45 of
1860], a registered medical practitioner shall not be guilty of any offence
under that Code or under any other law for the time being in force, if any,
pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be
terminated by a registered medical practitioner : - Where the length of the
pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) Where the length of the pregnancy exceeds twelve weeks but does not
exceed twenty weeks, if not less than two registered medical practitioner are,
of opinion, formed in good faith.
(3) In determining whether the continuance of a pregnancy would involve
such risk of injury to the health as is mentioned in sub-section(2), account
may be taken of the pregnant woman's actual or reasonable foreseeable
environment.
39. U/S 2(d) of MTP Act 1971 defines "registered medical practitioner" means a
medical practitioner who possesses any recognized medical qualification as
defined in clause (h) of section 2 of the Indian Medical Council Act, 1956,
(102 of 1956), whose name has been entered in a State Medical Register and
who has such experience or training in gynaecology and obstetrics as may be
prescribed by rules made under this Act.
 Page | 14

be pregnancy either through rape or where a pregnancy occurs are a result of

failure of any device or method used by any married woman or her husband
for the purpose of limiting the number of children.40
The MTP Rules 41
provides that the registered medical practitioner shall
have one or more of the following experience to training in gynaecology and
obstetrics, namely
1. In the case of medical practitioner, who was registered in a State
Medical Register immediately before the commencement of the Act,
experience of gynaecology and obstetrics for a period of not less than
3 years.
2. In the case of a medical practitioner, who was registered in a State
Medical Register :
(a) If he has completed six months of house surgency in
gynaecology and obstetrics; or
(b) Unless the following facilities are provided therein, if he had
experience at any hospital for a period of not less than one year
in the practice of gynaecology and obstetrics;
(c) If he has assisted a registered medical practitioner in the
performance of 25 cases of medical termination of pregnancy of
which atleast 5 have been performed independently, in a
hospital established or maintained, or a training institute
approved for this purpose by the government.

40. Explanation 1 : where any pregnancy is alleged by the pregnant woman to

have been caused by rape, the anguish caused by such pregnancy shall be
presumed to constitute a grave injury to the mental health of the pregnant
woman.
Explanation 2 : where any pregnancy occurs as a result of failure of any
device or method used by any married woman or her husband for the
purpose of limiting the number of children, the anguish caused by such
unwanted pregnancy may be presumed to constitute a grave injury to the
mental health of the pregnant woman.
41. Rule 4 of MTP Rules 2003.
 Page | 15

(i) This training would enable the Registered Medical

Practitioner to do only first trimester terminations (upto
12 weeks of gestation)
(ii) For terminations upto 20 weeks the experience or
training as prescribed under sub-rules (a), (b) and (d)
shall apply.
(d) In the case of a medical practitioner, who has been registered in
a State Medical Register and who holds a postgraduate decree
or diploma in gynaecology and obstetrics, the experience or
training gained during the course of such degree or diploma.
While the satisfaction of one medical practitioner is required for
terminating a pregnancy within twelve weeks of the gestation period, two
medical practitioners must be satisfied about either of these grounds in order
to terminate a pregnancy between twelve to twenty weeks of the gestation
period. In all such circumstances, the consent of the pregnant woman is an
essential requirement for proceeding with the termination of pregnancy. This
position has been unambiguously stated in Section 3(4) (b)42 of the MTP Act,
1971. The exceptions to this rule of consent have been laid down in Section
3(4)(a) of the Act. The MTP Rules43 as revised by the government in 1975
have made it competent for a woman to have her unwanted pregnancy
terminated under the act without the consent of her husband.
Section 3(4)(a) lays down that when the pregnant woman is below
eighteen years of age or is a mentally ill person,44 the pregnancy can be

42. Save as otherwise provided in cl (a), no pregnancy shall be terminated except

with the consent of the pregnant woman.
43. The rules were framed in 1972 by the GOI, exercising its pwoer u/s 6 of
MTPA.
44. MTP Act had been amended in 2002, by way of which the word 'lunatic' was
replaced by the expression 'mentally ill person' in Section 3(4) (a) of the said
statute. The said amendment also amended Section 2(b) of the MTP Act,
where the erstwhile definition of the word 'lunatic' was replaced by the
definition of the expression 'mentally ill person' which reads as follows : "2(b)
 Page | 16

terminated if the guardian of the pregnant woman gives consent in writing for
the same. The only other exception is found in Section 5(1) of the MTP Act
which permits a registered medical practitioner to proceed with a termination
of pregnancy when he/she is of an opinion formed in good faith that the
same is immediately necessary to save the life of the pregnant woman. (2)
Notwithstanding anything contained in the Indian Penal Code the termination
of pregnancy by a person who is not a registered medical practitioner shall be
an offence punishable with rigorous imprisonment for a term not less than
two years but which may extend to seven years under the Code, and the
Code shall stand modified to this extent. (3) If pregnancy is terminated by the
person at a place other than that mentioned under Section 4 he shall be
punishable with rigorous imprisonment for a term which shall not be less than
two years but which may extend to seven years. (4) The owner of the place
not approved under Section 4(b) shall be punishable with rigorous
imprisonment for a term not less than two years but which may extend to
seven years. The first explanation appended to the Section provides the
meaning of the word 'owner' in relation to a place where pregnancy may be
terminated as the administrative head or otherwise responsible for the
working or maintenance of that hospital or place. The second explanation
says that for the purpose of this section those provisions of section 2(d) will
not apply, which relate to the possession of experience or training in
gynaecology or obstetrics by the medical practitioner.
It may be noted that the M.T.P. Act does not protect the unborn child.
Any indirect protection it gains under the Act is only a by-product resulting
from the protection of the woman.
An important feature of the Act is that it does not permit termination of
pregnancy after twenty weeks. Under the MTPA, Abortion is legal up to the
second trimester, but it is at the absolute discretion of medical opinion. A

'mentally ill person' means a person who is in need of treatment by reason of

any mental disorder other than mental retardation."
 Page | 17

study of the MTP Act points out that the pregnant woman cannot simply state
that it is an unwanted pregnancy. It is important to note that the MTP Act
does not permit induced abortions on demand.45 She must provide
explanations that fit into the conditions listed in the MTP Act, and it is medical
opinion that has the power to decide whether the woman meets the
requirements of the Act. That is, expert medical opinion must certify either
that the pregnancy involves a risk to the life of the woman or would cause
grave injury to her physical or mental health, or alternatively, that there is a
substantial risk that a seriously handicapped child would be born. The
responsibility rests with the medical practitioner to opine in good faith
regarding the presence of a valid legal indication. The law stated above
reveals that upto 20 weeks of pregnancy, the termination of pregnancy can
be done and not beyond that. It is pertinent to mention here that for
abortion, the consent of women alone is required and not of any other
person.
Who can perform MTP? :- S.3 (1) read with s.2 (d) of the Act provides
that a registered medical practitioner, with experience or training in
gynaecology or obstetrics is authorised to terminate the pregnancy in
accordance with the provisions of the Act and subject to the conditions
mentioned.
Places where the Pregnancy could be terminated : - Section 446
provides the place where the pregnancy could be termianted.
(a) A hospital established or maintained by Government or ,
(b) a place for the time being approved for the purpose of this Act by
Government or a District Level Committee constituted by that
Government with the Chief Medical Officer or the District Health Officer
as a Chairperson of the said Committee : Provided that the District
Level Committee shall consist of not less than three and not more than

45. V Krishnan v G. rajan & others HCHP 1450/93.

46. Subs. by Act 64 of 2002..
 Page | 18

five members, including the Chairperson, as the Government may

specify from time to time.
The MTP Rules 200347 provides that one member of the district level
committee provided under S.4(b) of the MTP Act shall be Gynaecologist
/Surgeon/ Anaesthetist and other members from local medical profession,
nongovernmental organization and Panchayati Raj Institution of the district. It
further provides that one of the members of the committee should be
woman.
The MTP Ruls48 further provides that
(1) No place shall be approved under clause (b) of section 4,-
(i) Unless the Government is satisfied that termination of
pregnancies may be done therein under safe and hygienic
conditions; and
(ii) Unless the following facilities are provided therein, namely :-
in case of first trimester, that is, up to 12 weeks of pregnancy, a
gynaecology examination/labour table, resuscitation and
sterilization equipment, drugs and parental fluid, back up
facilities for treatment of shock and facilities for transportation;
and in case of second trimester, that is up to 20 weeks of
pregnancy :-
(a) an operation table and instruments for performing abdominal
or gynaecological surgery.
(b) anaesthetic equipment, resuscitation equipment and
sterilization equipment.
(c) Drugs and parental fluids for emergency use, notified by
Government of India from time to time.
The amended MTP Rules also recognize medical abortion methods and
allow a registered medical practitioner to provide mifepristone and

47. Rule 3 of the MTP Rules 2003.

48. Rule 5 of the MTP Rules 2003.
 Page | 19

misoprostol in a clinic setting to terminate a pregnancy upto seven weeks,

provided that the doctor has either on site capability or access to a facility
capable of performing surgical abortion in the event of a failed or incomplete
medical abortion. However, the drug controller of India has approved
mifepristone provision only by a gynaecologist effectively restricting access to
woman in urban areas. National consensus guidelines and protocols49 for
medical abortion are currently being developed.
In accordance with Rule 5 of the MTP Rules 2003, Every application for
the approval of a place shall be in a form A and shall be addressed to the
Chief Medical Officer of the District. On receipt of an application under sub-
rule (2) of Rule 5, the chief Medical Officer of the District may verify any
information contained, in any such application or inspect any such place with
a view to satisfying himself that the facilities referred to in sub-rule (1) are
provided, and that termination of pregnancies may be made under safe and
hygienic conditions. Every owner of the place which is inspected by the Chief
Medical Officer of the District shall afford all reasonable facilities for the
inspection of the place. The Chief Medical Officer of the District may, if he is
satisfied after such verification, enquiry or inspection, as may be considered
necessary, that termination of pregnancies may be done under safe and
hygienic conditions, at the place, recommend the approval of such place to
the Committee. The Committee may after considering the application and the
recommendations of the Chief Medical Officer of the District approve such
place and issue a certificate of approval in Form B. The certificate of approval
issued by the Committee shall be conspicuously displaced at the place to be
easily visible to persons visiting the place. The place shall be inspected within
2 months of receiving the application and certificate of approval may be
issued within the next 2 months, or in case any deficiency has been noted,
with 2 months of the deficiency having been rectified by the applicant. On the

49. GOI. Consortium for national consensus for medical abortion in India :
Proceedings and Recommendations, New Delhi : AIIMS and Ministry of Health
and family welfare, March 2003.
 Page | 20

commencement of these rules, a place approved in accordance with the

Medical Termination of Pregnancy Rules, 1975 shall be deemed to have been
approved under these rules.
A place approved under rule 5 may be inspected by the Chief Medical
Officer of the District, as often as may be necessary with a view to verify
whether termination of pregnancies is being done therein under safe and,
hygienic conditions. If the Chief Medical Officer has reason to believe that
there has been death of or injury to, a pregnant woman at the place or that
termination of pregnancies is not being done at the place under safe and
hygienic conditions, he may call for any information or may seize any article,
medicine, ampoule, admission register or other document, maintained, kept
or found at the place. The provisions of the Code of Criminal Procedure, 1973
(2 of 1974), relating to seizure, so far as it may, apply to seizure made under
sub-rule (2).50 If, after inspection of any place approved under rule 5, the
Chief Medical Officer of the District is satisfied that the facilities specified in
rule 5 are not being properly maintained therein and the termination of
pregnancy at such place cannot be made under safe and hygienic conditions,
he shall make a report of the fact to the Committee giving the detail of the
deficiencies or defects found at the place and the committee may, if it is
satisfied, suspend or cancel the approval provided that the committee shall
give an opportunity of making representation to the owner of the place before
the certificate issued under rule 5 is cancelled. Where a certificate issued
under rule 5 is cancelled, the owner of the place may make such additions or
improvements in the place and thereafter, he may make an application to the
Committee for grant of approval under rule 5. In the event of suspension of a
certificate, of approval, the place shall not be deemed to be an approved
place during the suspension for the purpose of termination of pregnancy from
the date of communication of the order of such suspension.

50. Rule 6 of MTP Rules 2003.

 Page | 21

The owner of a place, who is aggrieved by an order made under rule 7,

may make an application for review of the order to the Government within a
period of sixty days from the date of such order :
Provided that the Government may condone any delay in case it is
satisfied that applicant was prevented by sufficient cause to make application
within time.
(2) The Government may, after giving the owner an opportunity of
being heard, confirm, modify or reverse the order.
Power to make Rules and Regulation :- Section 651 and 752 of the Act

51. Power to make rules –

(1) The Central Government may, by notification in the Official Gazette,
make rules to carry out the provisions of this Act.
(2) (2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the following
matters, namely : (a) the experience or training, or both, which a
registered medical practitioner shall have if he intends to terminate
any pregnancy under this Act; and (b) such other matters as are
required to be or may be, provided by rules made under this Act.
(3) Every rule made by the Central Government under this Act shall be
laid, as soon as may be after it is made, before each House of
Parliament while it is in session for a total period of thirty days which
may be comprised in one session or in two successive sessions, and
If, before the expiry of the session which it is so laid or the session
immediately following, both Houses agree in making any modification
in the rule or both Houses agree that the rule should not be made,
the rule shall thereafter have effect only in such modified form or be
of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
52. 7: Power to make regulation :-
(1) The State Government may, by regulations, -
(a) require any such opinion as is referred to in sub-section (2) of Sec. 3 to
be certified by a registered medical practitioner or practitioners concerned
in such form and at such time as be specified in such regulations, and the
preservation or disposal of such certificates;
(b) require any registered medical practitioner, who terminates a pregnancy
to give intimation of such termination and such other information relating
to the termination as maybe specified in such regulations;
(c) prohibit the disclosure, except to such persons and for such purposes as
may be specified in such regulations, of intimations given or information
furnished in pursuance of such regulations.
 Page | 22

confer power to the Central Government to make rules and to carry out
provisions of the Act and to frame regulations respectively. In accordance
with these the MTP Rules, 2003 and MTP Regulations, 2003 have been
framed.
Protection of action taken in good faith:53 no suit or other legal
proceeding shall lie against any shall lie against any registered practitioner for
any damage caused or likely to be caused by anything which is in good faith
done or intended to be done under this act.
Abortion Law Reform Since 2000
In an effort to reduce the bureaucracy for obtaining approval of
facilities, the new decentralized regulation of abortion facilities from the state
level to district committees that are empowered to approve and regulate
abortion facilities. It also provides punitive measures of 2-7 years
imprisonment for individual providers and owners of facilities not approved by
or maintained by government.
To reduce administrative delays, the amended MTP Rules54 define a
time frame for registration and mandate the District Committee to inspect a
facility within 2 months of receiving an application for registration and process
the approval within next two months if no deficiencies are found or within two
months after rectification of any noted deficiency. However the amended MTP
rules do not specify measures to be taken if approval procedure is still not
completed in the stipulated time frame.

(2) The intimation given an the information furnished in pursuance of

regulation made by virtue of Cl.(b) of Sub-section (1) of shall be given or
furnished, as the case may be, to the Chief Medical Officer of the State.
(2A) every regulation made by the State Government under this Act shall be
laid as soon as may be after it is made, before the state legislature. (ins.
by Act 4 of 2005, s.2 and Sch).
(3) Any person who willfully contravenes or willfully fails to comply with the
requirements of any regulation made under sub-section 91) shall be liable
to be punished with fine which may extend to one thousand rupees.
53. S.8 of MTP
54. GOI MTP Rules and Regulations vide GSR 485 E and 486E New Delhi, Gazette
of India 2003
 Page | 23

While physical standards for a facility providing second trimester

abortions remain the same. The amended MTP rules rationalize the physical
standards required for first trimester abortion facilities are no longer required
for the first trimester abortions. However, every facility needs to have
personnel trained to recognize complications and provide or be able to refer
women to facilities capable of emergency care.
The validity of the MTP Act was challenged as late as 2005 in the case
of Nand Kishore Sharma v Union of India55. It was argued that the Act,
particularly Section 3(2) (a) and (b) and Explanations I and II to Section 3 of
the Act were unethical and violative of Article 21 of the Constitution of India.
The Court in the case had to determine when the foetus actually comes to life
and hence if his or her right to life is violated by the said provisions. But the
Court refused to enter upon a debate as to when foetus comes to life or the
larger question touching upon the ethics of abortion, stating that they were
merely concerned with the validity of the relevant provisions of the Act. The
Court refused to comment on the attribution of status of a "person" to the
foetus and declared the MTP Act to be valid as it was in consonance with the
aims and objectives of Article 21 of the Constitution rather than against it.
However, the Court took an ambivalent stance when it came to the question
of whether the MTP Act would be violative of Article 21 with regard to a
foetus, saying that it was difficult to determine exactly when a foetus comes
to life and hence avoided a closure on the matter.
The recent Dr. Nikhil Dattar & Ors. v. Union of India56 case has given
rise to an intense debate on abortion laws in the country. The key issue
herein is whether the statutory time limit for abortion must be increased from
the currently permitted twenty weeks of gestation to twenty four weeks or
above. "The answer of course is not easy to arrive at. The issue involves
complex questions of law, medical technologies and morality. The MTP Act

55. AIR 2006 Raj. 166.

56. (2008) 110 BOM. L. R. 3293.
 Page | 24

permits abortion to be performed only when the pregnancy poses a risk to

the life of the pregnant woman, or, of grave injury to her physical or mental
health, or, when there is a substantial risk of the child being born with
physical or mental abnormalities so as to be seriously handicapped." A
registered medical practitioner may terminate the pregnancy up to twelve
weeks of gestation but where the period is between twelve to twenty weeks,
the opinion of two registered medical practitioners is required. The limit of
twenty weeks may be crossed only when the procedure is performed to save
the life of the woman. In this case, the gestational period had progressed
much beyond the prescribed period and was past twenty five weeks. The
petitioners (who were a married couple along with their medical practitioner)
pleaded that the congenital heart blockage in the heart of the foetus was
detected at a late stage and also expressed their inability in the heart of the
foetus was detected at a late stage and also expressed their inability to bear
the emotional stress and monetary burden of giving birth of to a child may
suffer from such severe health problems. These concerns are understandable
in the socio-economic context of India where the existing mechanism of state
support is negligible for such parents and individuals and the burden of
providing special care falls largely on the immediate family. As mentioned
earlier, India has chosen a meddle path instead of choosing outright a pro-life
or pro-choice approach and this is perhaps rightly so, given the sensitivity of
the issue. A balanced approach appears sensible : a balance between the
respective interests of the woman, the unborn and the state. The Mumbai
High Court held that no categorical opinion of experts had emerged to state
that the child would be born with serious handicaps and it thus denied
recourse to medical termination of the pregnancy. It might be interesting to
note here that an opinion emerged that terminating the life of a viable unborn
on grounds of possible handicap is akin to mercy killing. It might be
suggested here that the adverse ramifications of giving birth to handicapped
children may be minimized by creating effective state mechanisms for
 Page | 25

adequate support to such children and families, both financial and otherwise.
Instead of giving a blanket cover to all cases, expert committees may be
constituted to evaluate cases beyond twenty weeks on merit so that selective
sanction for abortion at this state is given. In this case, the Court categorically
stated that even if this petition had been made before the 20 weeks had
elapsed, the Court would still not have found in favor of the petitioner as the
requirements of provision of law under Section 3(2)(ii) read with Section 3(2)
are not satisfied.
In Suchitra Srivastava v. Chandigarh Administration57 the Supreme
Court has held that personal liberty in Article 21 includes the right to make
reproductive choice (to produce child or not to produce). In view of this
woman's right to privacy, dignity and bodily integrety should be respected. In
view of this woman's right to Chandigarh Nari Niketan had become pregnant
due to rape. The Chandigarh Administration approached the High Court for
approval for the termination of her pregnancy as she was 'mentally retarded'
and an orphan having no parent or guardian to look after her or her
prospective child. Medical experts opinion was that she was suffering only
from mild mental retardation and was physically capable of continuing
pregnancy. There was no indication of congenital defects in child and had
completed 19 weeks of pregnancy (maximum 20 weeks for termination). She
had not given her consent for termination of pregnancy as required by the
Medical Termination of Pregnancy Act, 1971. The High Court directed to
terminate pregnancy by invoking parents patriae doctrine. The appellants
(private party) field an appeal in the Supreme Court against this order. The
Supreme Court held that a woman's right of choice to have personal liberty as
understood under Article 21 of the Constitution. There should be no
restriction on the exercise of reproductive choice she can refuse to participate
in sexual act or alternatively insist on the use of contraceptives methods. This
means that she is entitled to carry on pregnancy to its full term, to give birth

57. AIR 2010 SC 235.

 Page | 26

and subsequently raise children. There is surely the states "compelling interst"
in protecting the life of the prospective child. Therefore termination of
pregnancy is only permitted when conditions specified in the applicable
statute have been fulfilled. Hence, the MTP Act, 1971 can also put reasonable
restrictions on the exercise of reproductive choices. The Act makes a
distinction between "mental illness" and "mental retardation". In case of
mental illness guardian's consent is necessary for termination of pregnancy
but in case of mental retardation the woman herself is capable of having her
own consent. In this case the woman has not given her consent for
termination of pregnancy. Accordingly, the Court quashed the order of the
High Court. The doctrine of parents partriae invoked by the High Court is
applicable in case of those persons who are minors or those who are found
mentally incapable of making informed decisions for themselves. The Court
also referred the principle contained in the United Nations Declaration on
Right to Mentally Retarded Persons, 1971. The Chairman of the National Trust
for Welfare of Persons has given an affidavit to look after the interests of the
woman.
The High Court relied on the decision of a Division Bench of the Madras
High Court58 which held that "a minor girl has the right to bear a child". No
doubt the Court is bound to presume, as the expression used is "shall be
presumed". But such presumption can be rebutted on the facts. Even if it is
presumed that the pregnancy is caused by rape, there is no question of
anguish caused by such pregnancy in the pregnant woman particularly when
the girl was very keen to continue the pregnancy and bear the child. Hence,
the continuance of the pregnancy was held to not have the potential to cause
any injury to her mental health. Though the High Court chose to take a
holistic approach as opposed to the doubtful consent of the pregnant woman,
the Supreme Court gave a major boost to the pro-life campaign in staying the
order.

58. V. Krishnan v. G. Rajanalia Madipu Rajan, (1994) 113 MAD. L.R. 89

 Page | 27

The MTP Rules and Regulations 197559 define the criteria and
procedure for approval of an abortion facility, procedure for consent, keeping
records and reports and ensuring confidentiality. Any termination of
pregnancy done at a hospital or other facility without proper approval of the
government is deemed illegal and onus is on the hospital to obtain prior
approval.
4.3 PNDT Act 2002
The use of sex selective tests in India began with the introduction of
amniocentesis. A ban on government institutions providing such services, led
to the proliferation of private diagnostic centres offering cheap sex
determinative tests to the public. This led to a corresponding decline in the
female population in society. To offset the phenomena of female-foetus
abortions, women's groups and social activists lobbied the Parliament for over
a decade to get a law prohibiting sex-determination tests on board. As a
result of this lobbying the Pre-Natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act was passed in July 1994. The PNDT Act was meant
to be a significant step to counter the widespread use of pre-natal diagnostic
techniques, which would lead to subsequent abortion of female foetuses.
The women's groups specifically targeted sex determinative tests and
not sex selective abortions because access to abortions services is liberalised
under the Medical Termination of Pregnancy Act, 1971, the right to abortions
is not recognised under Indian law. Hence, it was considered that imposing
additional conditions on obtaining abortions would further limit a woman's
access to abortion services.
The objective of the PNDT Act was therefore twofold. First, to regulate
pre-natal diagnostic techniques and limit it to the detection of genetic/
metabolic disorders, chromosomal abnormalities, congenital malformations or
sex linked disorders. Secondly, to prevent the use or rather misuse of such

59. GOI. The MTP Rules and Regulations vide GSR 2543, New Delhi : Gazette of
India, 1975.
 Page | 28

technology for the purpose of pre-natal sex selection which in turn would lead
to sex-selective abortions.
Unfortunately, little was done to actually implement this Act. In 1998, a
Public Interest Litigation, CHEAT v Union of India, AIR 2001 SC 2007 was field
in the Supreme Court for directions to implement this Act. The Hon'ble Court
passed a favourable interim order in May 2001 directing the Central
Government and states to take all necessary steps to implement this law.
Compliance with the Act in earnest therefore commenced with the passing of
this order.
Implementing the Act revealed loopholes and problems inherent in the
Act. The first was that there were no clear provisions regulating pre-
conception techniques in the Act. (In fact the CHEAT petition was also filed in
a bid to include pre-conception techniques within the purview of this Act.)
Secondly, it was contended that the Act, drafted at the time when
amniocentesis was considered to be the main threat was incorrectly drafted
as far as the use of ultrasound tests were concerned and hampered women's
access to routine ultrasound tests. Thirdly, that the Appropriate Authorities,
constituted under the Act were abusing their powers and harassing practising
doctors.
In order to address these problems and under the direction of the
Supreme Court, in the year 2000, the Central Government tabled an
amendment to the Act. The amendment Act was finally passed on February
14, 2003. The PNDT now stands converted to the "Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT)".
Even with the Amendments, this Act remains extremely difficult to implement.
The sec of the foetus is revealed behind closed doors. Both, the persons
seeking this information, as well as the medical professionals providing this
information are in breach of the law. Since the foetus is done away with, no
one is left to make the complaint. The only evidence of contravention of this
law is the decline in the number of women in the population. Since the census
 Page | 29

takes place only once in ten years, by the time this loss was detected the
numbers. Given the background , PCPNDT is designed to primarily ensure two
aspects. First, that pre-natal diagnostic tests can be conducted only in
registered places. Secondly that all such places have to maintain records of all
pregnancy related procedures and tests being carried out.
Discrimination Against the Girl child
Census report 2011 shows that the sex ratio of 0-6 years fell
from 927 females per 1000 males in 2001 to 919 per 1000 males in 2011. The
new figure gives India one of the world's lowest ratios for women to men. An
alarming drop in the number of girls born in India is being blamed on a strong
cultural preference for sons. The girl child is subjected to a complex and
deep-rooted set of religious, cultural, historical and social factors. The
discrimination against girl child is born on the cultural and religious values
that spring from the patriarchal Indian ethos dominant in most parts of the
country. There are consistent indications of the marked preference for sons
over daughters in the Indian religion, culture and society. Religions, festivals,
myths, legends and prevailing customs accord a predominant role to the male
and point to the overriding significance of a male heir to a family. Some lines
from a poem by an unknown Indian author succinctly express the reasons
why a father should desire a son.
In him a father pays a debt and reaches immortality
When he beholds the countenance of a son, born to him alive.
Then all the joy which living things in waters feel, in earth and fire
The happiness that in his son, a father's feel is greater far.
At all times fathers by a son much darkness, too have passed beyond,
In him the father's self in born the wafts him to the other shore.
Food is man's life and clothes afford protection,
God gives him beauty marriages bring cattle,
His wife's a friend his daughter causes pity
A son is like a light in the highest heaven.60
 Page | 30

The Shastras, sacred religious literatures stress the importance

of male progeny. It is said that a father can reach immortality only through
the birth of a son. Sons are ritually essential to light the funeral pyres of the
parents and thus release their souls from early bondage. A girl cannot light
the pyre and so without sons, it is believed that the parent's souls do not
attain salvation. Cultural practices also reiterate the higher status of the male
sex and consequently the importance of a son. Upon marriage a traditional
blessing to the Hindu bride is : "May you be the mother of a hundred
sons"....... a daughter is never mentioned. Similarly, the greeting that a
married Muslim woman receives from her elders is usually : "live and produce
sons". So, against this type of religious-cultural background, the birth of a son
is greeted with much rejoice while the birth of a daughter is a
disappointment. so far as social status of a girl child in India is concerned,
Indian society, like onther societies of the world, also distinguishes between
males and females. In the traditional family system, the value of patriarchy
and male supremacy largely determine the differential social status of male
and female child. Girls are supposed to behave in a traditional feminine
manner and their actions are always linked to family honour and prestige.
Modesty, submissiveness, domestic and family skills, nurturance, inter-
personal relations, dependence and adaptations are encouraged in girls
whereas male children are taught to be aggressive, assertive, superior and
independent.
It remains an unfortunate fact that in the modern era of developments
in education, science and technology also the girl child is discriminated as
against the boy child. Parents prefer to have only sons and therefore they
either allow many issues till a desired son is born or they prefer to abort the
foetus of a girl child after indentifying by the sex determination tests. thus
discrimination against female child, obvious at all stages of life starts even
before she is born. Advances in Medical Science like Prenatal Diagnostic

60. Anonymous, Indian Writer, 600 BC taken from William, 976 pp 79-9.
 Page | 31

technique (PNDT) are misused to detect the sex of a foetus and MTP Act is
abused to get rid of a girl child before birth. Such abuse of medical science is
a crime against female sex, diminishing the dignity and honour of woman.
4.3.1 Prenatal Diagnostic Techniques : A Boon or a Bane?
Prenatal Diagnostic Techniques are any procedure or tests such as
Ultrasonography or any test on amniotic fluid, chorionic villi, blood or any
tissue of pregnant woman conducted to detect following abnormalities :
1. Chromosomal abnormalities
2. Genetic metabolic disease
3. Haemoglobinopathies
4. Sex-linked genetic diseases
5. Congenital anomalies61
Even abortion is legal as per the Medical Termination of Pregnancy Act
(MTP Act), 1971 when a woman's life or health is at risk or in cases of foetal
impairment, rape and contraceptive failure. The prenatal diagnostic
techniques like amniocentesis and sonography are useful for the detection of
genetic disorders or congenital malformations or sex-linked disorders etc.
however they are being misused on a large scale to detect the sex of the
foetus and to terminate the pregnancy of the unborn child if found to be a
female child. Techniques are also being developed to pre-select the sex of
child before conception. These practices are wholly discriminatory to the
female sex and affect the dignity and status of women. The proliferation of
these scientific and medical technologies is likely to precipitate in a
catastrophe, in the form of severe imbalance in male-female ratio.
The all-pervading influence of patriarchy, sex-selection has
transcended all barriers of caste and community and even the north/south
dichotomy. Sex pre-selection clinics employing modern technology have

61. Dr. Rekha Daver, PC & PNDT (Prohibition of Sex Selection) Act, 2002, A
paper presented at the National conference on Law, Medicine & Health,
organised by the PGTD of Law, Nagpur University on 30th Nov-1st Dec.,
2003.
 Page | 32

already spread its network all over the world. The issues at stake are
numerous, social, demographic, cultural and political. The most urgent are
the fundamental right to life, the survival of the half of the human kind and
the right to equality. Sex-selection does not infringe upon "women's right to
choose the sex of their offspring" as is claimed by some of them as such a
right does not exist. Sometimes women become victims of sex-selection.
Particularly they belong to third world countries. They do not have a basic
right to participate in decision-making matters such as education, marriage
and contraception. Sex selection cannot be treated as a family planning too
nor can be the 'personal' matter. Discrimination and subjugation on the basis
of gender is a real social problem. Moreover the sex-determination tests may
cause danger to the unborn child. The performance of amniocentesis may
result in dislocation of hip or other respiratory complication. The mother too
can face the risk of infection and spontaneous abortions. This is because this
test consists of removal of about 15 cc amniotic fluid from the amniotic sac,
which covers the foetus. This test is generally performed during 14th or 15th
week of pregnancy. Similarly performance of sonography also exposes a
foetus to ultrasound rays, which may lead to some other disorders in the child
if it survives.
4.3.2 Legal Measures for Prohibition of Sex-Selection
During the year 1980-90, widespread misuse of pre-natal diagnostic
technique for the purpose of sex determination and abortion of female
fetuses became a cause of concern for social and women organizations. The
nation-wide campaigning by women activists, health activists, doctors, press
and public meetings caused pressure on the government, which resulted in
tabling of an official bill, "The Pre-natal Diagnostic Techniques (Regulation
and Prevention of Misuse) Bill, 1991" and enacting a legislation in 1994. The
primary objective of the 1991 Bill was to provide for the regulation of the use
of pre-natal diagnostic techniques for the purpose of detecting genetic or
metabolic disorders or chromosomal abnormalities or certain congenital
 Page | 33

malformation and for the prevention of misuse of such technology for the
purpose of pre-natal sex determination leading to female foeticide. The Bill
also provided for the constitution of a Central Supervisory Board to advise
Government on Policy. It also laid down the code of conduct to be observed
by persons working at the Genetic Counselling Centre, Genetic Laboratories
and Genetic Clinics. Appointment of appropriate authorities, their functions
and punitive actions in case of contravention of provisions were also provided
in the Bill and the Act. In spite of the Bill and the Act, the widespread misuse
of pre-natal diagnostic techniques continued for the sex determination and
female foeticide. The PNDT Act, 1994 has turned out to be ineffective to root
out these malpractices from the society and therefore it had become
necessary to bring out an amendment in the Act.
The PNDT Act, 1994 has failed to achieve its objectives because of
many reasons. The machinery required to enforce the Act at the State and
District levels was not put into place. The required allocation of resources
needed was not provided. The enforcement of the Act was not taken seriously
by the governing bodies entrusted to enforce it. Not a single Pre-natal
Diagnostic Center had been registered until 2001 in Punjab even though it
was the first state to provide sex selection facilities as early as in the 1970's
and the sex ratio in the age group of 0-6 years has been on the decline. It
was difficult to identify the purpose for which an ultra-sound test has been
done due to non-maintenance of adequate records by clinics. Further the
insistence of Family Planning programmes on the small family norm coupled
with the son-preference bias in India added pressure on families to look at
sex-selection as a via media for their desired family composition.62 The
Medical Profession and its associations like Indian Medical association (IMA),
Radiologist Association and Forum for Obstetricians and Gynaecologist
(FOGSI) remained silent over such malpractice by their members. So, the

62. Dr. K. Shanmugavelayutham, The Pre-conception and Pre-natal Diagnostic

Techniques (prohibition of Sex Selection) Act, 2002-A Bold Step", Legal News
and Views, Vol. 17 No. 5, May 2003.
 Page | 34

State's unwillingness coupled with the socio-cultural demands of son's

preference and the unconcern of the Medical Profession led to the failure of
the PNDT Act, 1994. Although the Act remained on the statute books since
1994, it remained largely ineffective in checking the proliferation of
ultrasound machines and Mobile Clinics clandestinely offering sex-selection
services throughout the country63.
4.3.3 Judicial Response
A Public Interest Litigation petition was filed in the Supreme Court by
the Centre for Enquiry into Health and Allied Themes (CEHAT), Mahila
Sarvangeen Utkarsh Mandal (MASUM) and Dr. Sabu M. George urging
effective implementation of the Act. The Supreme Court passed an order on
4th May 200164, which aims at ensuring the implementation of the Act,
plugging the various loopholes and launching a wide media campaign on the
issue. The second goal of filing the PIL was the amendment of the Act to
include pre and during conception tecniques (PGD). The order largely
concerns only the implementation of the Act and to recommendations to the
Central Government.
4.3.4 Important Features of the PC & PNDT Act, 2002
In response to Supreme Court order and Central Supervisory Board
recommendations the Parliament on 20th December 2002, passed the Pre-
Conception and Pre-Natal diagnostic Techniques (Prohibition of Sex Selection)
Act, 2002. The objectives of the Act are as follows :
 To ban the pre-conception sex selection techniques.
 To prohibit the misuse of pre-natal diagnostic techniques for sex-
selective abortions.
 To regulate the pre-natal diagnostic techniques for the appropriate
scientific use for which they are intended.
 To ensure the effective implementation of the Act at all levels.

63. Ibid.
64. Supreme Court of India, Civil Original Jurisdiction Writ Petition (Civil) No. 301
of 2002.
 Page | 35

One of the important features of the Act is that it has included within
its ambit the recently developed techniques of sex-selection before conception
and at the time of conception like Ericsson method65 and Pre-implantation
Genetic Diagnosis (PGD). The Act provides for compulsory registration of all
Diagnostic Laboratories.66 The manufacturers of ultra-sound equipment would
now be required to sell their products only to those clinics that are registered.
All genetic Counseling Centers, genetic Laboratories, Genetic Clinics and
Ultrasound Clinics, irrespective of whatever they are involved as regards
diagnosis for gynaecological or other purposes, would now have to maintain
records of all the tests conducted by them. Any person conducting ultra-
sound scan/test/procedure on any pregnant woman shall keep complete
record of such scan/test/procedure indicating her complete name, address,
husband's name as well as name and address of the referring Medical
Practitioner/Doctor, the reasons requiring such scan/test/procedure etc. The
Act expressly provides for the prohibition of communicating the sex of the
foetus. It states that no person can communicate to the pregnant woman
concerned or her relatives or any other person the sex of the foetus by works,
signs or in any other manner while conducting prenatal diagnostic
procedures. The Act also provides that only qualified persons can use pre-
natal diagnostic techniques.
4.3.5 Punishment Under the PC & PNDT Act
Any medical geneticist, gynaecologist, registered medical practitioners
or any person who owns genetic clinic, center or laboratory or employed in it
or renders his professional or technical services, on honorary basis or
otherwise, and who contravenes any of the provision of the Act or rules shall

65. X and Y Chromosomes are separated.

66. An application for registration has to be made to designated Appropriate
Authority with prescribed application fees and obtain certificate of registration
which has to be displayed at conspicuous place and in addition to this, a
notice in, English and in local language has to be displayed for the
information of public, to the effect the disclosure of the sex of foetus is
prohibited.
 Page | 36

be punishable with imprisonment for a term extending upto 3 years with a

fine which may extend to Rs. 10,000/- and any subsequent conviction with
imprisonment upto 5 years and fine upto Rs. 50,000/-. In addition, name of
the Registered Medical Practitioner convicted by the Court shall be reported to
Medical Council for temporary cancellation of medical registration for period of
2 years for the first offence and permanently for the subsequent offence. Any
person who seek PNDT Techniques on any pregnant woman, including such
woman, unless she was compelled to undergo such techniques for purpose
other than specified earlier will be punishable with similar punishment and
fine. Court shall presume, unless the contrary is proved, that the pregnant
woman has been compelled by her husband or relatives to undergo PNDT and
such person will be liable for abetment of offence. Every offence under this
act shall be non-bailable, cognizable and non-compoundable.
 Page | 37

4.4 CRITICAL ANALYSIS OF INDIAN LAW

1. The MTP Act does not define 'health', 'substantial risk', 'seriously
handicapped' and so on. It is left to the medical practitioner to decide
how these terms are to be interpreted, although two explanatory notes
indicate that pregnancy in the case of rape (excluding marital rape)
and contraceptive failure (in the case of married woman) may be
treated as causing injury to mental health. In fact, even the words
'abortion', 'miscarriage' and 'termination of pregnancy' have not been
defined, which leaves the medical opinion on these matters
sacrosanct.67
2. It is true that after 20 weeks of pregnancy, it is not medically wise to
terminate pregnancy but the earlier period should belong to the
women concerned where it is medically feasible to terminate
pregnancy, to give content to the right to life and liberty of the
women. It is submitted that the liberty of the born i.e. of the female
concerned should be given its due instead of taking the right of life to
absurd limits to protect liberty of the unborn which has still to see the
face of light.68
3. The Act does not define the phrase 'grave injury to physical and mental
health of the pregnant woman' contained in s. 3(2)(b)(i) of the Act.
The definition is inclusive i.e. includes certain events under which the
pregnant lady may be deemed to have suffered from grave injury to
her mental health. Explanations appended to S.3 provide that if
pregnancy is caused by rape, or is the result of failure of any device or
method used by the married woman or her husband for the purpose of
limiting the number of children then the anguish caused by such
pregnancies may be said to constitute a 'grave injury to the mental

67. V. Hemalatha Devi, "Abortion Law in India – Socio Legal Implications", 1 SC

Journal (1990).
68. Sunita Bandewar, "Abortion services and providers perceptions : gender
dimensions", 38(21) Economic and Political Weekly (2003).
 Page | 38

health of the pregnant woman'. However, the anguish caused by

pregnancies which are outcomes of illegitimate sexual relations though
by consent is not regarded as grave injury and such a woman could
probably not avail of the benefit of termination of pregnancy provided
by the Act.69
4. According to the canons of original jurisprudence, a man is presumed
to be innocent unless his guilt is established in a Court of law beyond
reasonable doubt. If a woman is subjected to rape, the question arises
whether she should postpone the procurement of abortion till the
charge of rape is established in a Court of law and the accused is
found guilty or get the pregnancy terminated during the pendency of
case. In the former case, no abortion is possible because the case
would take 3 to 4 years to be disposed of and in the latter if the man
in acquitted the woman would be liable under s.312 of the IPC.
5. According to 376 C of the Code by the Criminal Law (Amendment) Act
2013, sexual intercourse by a man in authority with woman not
amounting to rape have been made punishable. If pregnancy is caused
by such act she cannot get it terminated. Also S.376B of the Code fails
to take note of a special situation where the husband and wife are
living separately under a decree of judicial separation by mutual
consent. In such a situation, marriage subsists in law, and if the
husband has sexual intercourse with his wife against her will and
consent, neither the husband can be convicted for the offence of rape
nor the wife can go for abortion, should she become pregnant.
6. Section 3 of the MTP Act does not provide for termination of pregnancy
caused as a result of sexual offences relating to marriage in the I.P.C.,
such as bigamy, adultery and the offences of fraudulent conduct in
marriage. A woman finds herself in a difficult situation in cases of

69. Geeta Ramaseshan, "Abortion are not for the asking", 9 Lawyers Collective 25
(1994).
 Page | 39

pregnancies resulting from the above offences. Thus, Section 3 of MTP

Act should be according amended to include the above noted
circumstances.
7. Provisions of MTPA and Hindu Marriage Act in conflict : In Sushil
Kumar v Usha,70 the wife got the foetus aborted in accordance with the
provisions of MTP Act without her husband's consent. A petition for
divorce was filed by the husband's consent. A petition for divorce was
filed by the husband's on the ground of cruelty and the Delhi High
Court passed the decree of divorce. The married woman who had done
a legal thing under the MTP Act became victimized. It clearly reveals
that the provisions of MTP Act and Hindu Marriage Act are in conflict.
Thus, to get the pregnancy terminated under the MTP Act husband's
consent is not mandatory.71
8. A major critique of the MTP Act is its apparent over-medicalisation and
physician's only policy that reflect a strong medical bias and ignore the
socio-political aspects of abortion. The need for two doctors to certify
opinion for a second trimester MTP is an unnecessary restriction
imposed by law.72 Though abortion law allows for termination of
pregnancy for a wide range of reasons construed to affect the mental
and physical health of the woman, it remains with the doctor (and not
the woman) to opine in good faith, the need for such a termination.
Such a provider- dependent policy might result in denial of abortion
care to women in need, especially the more vulnerable amongst them,
for various reasons, including conscientious objection.73

70. AIR 1987 Del 86.

71. Poonam Pradhan Saxena, "Abortion as a ground for divorce under Hindu
Law", 29 JILI 423 (1988).
72. Kristi Lemoine and John Tanagho, "Gender discrimination Fuels Sex Selective
Abortion : The Impact of the Indian Supreme Court on the Implementation
And Enforcement of the PNDT Act", 15 U. MIAMI INTL & COMP. L. REV. 203
(2007).
73. Joseph Minattur, "Medical Termination of Pregnancy and Conscientious
Objection" 16(4) JILI (1974).
 Page | 40

9. Another major critique of the abortion policy is its lack of a link with
good clinical practice and research. The MTP Rules define person and
place requirements, but do not refer to any national or international
technical guidelines for safe abortion care. In the absence of such
linkages with guidelines for good clinical practice, providers continue to
use unsafe abortion practices like sharp curettage, check curettage
following a vacuum aspiration, general anaesthesia, different drug
dosage schedules and protocols for medical abortion, etc. The scope of
an abortion policy needs to be broad enough to internalise emerging
advances in reproductive technology and newer practices within the
legal framework.74
10. While the MTP Act permits women to seek legal termination of an
unwanted pregnancy for a wide range of reasons, the clause about
contraceptive failure applies only to married woman. The critique in
this perspective would be that the focus of safe abortion care has been
traditionally for women who are married, implying a denial of such care
to an unmarried woman in need of terminating an unwanted
pregnancy. It is as if unmarried women do not become pregnant
outside of wedlock in 'our society'. Such a gross discrepancy needs to
be corrected, as the latter category of women perhaps requires a
significant amount of attention to their dilemma.75
11. Another very disturbing aspect is that of quality control under the MTP
Rules. While it allows for monitoring of quality of abortion care in the
private sector, its recognition of all public health institutions as abortion
facilities by default exempts the public sector from certification. The
assumption that a health institution by virtue of being in the public
sector is accountable to the public at large, has regulatory processes

74. Indu S Nair, 'Rights of the Child : Challenges for Law in the new era of
technology'. Cochin University Law Review, Vol. 27, No. 1 and 2, (Mar-Jun.)
2004.
75. Supra note 162.
 Page | 41

and does not need extra checks on their functioning, is not valid as
such accountability is often only in theory and not in practice. This
leads to a substantial discrepancy between the abortion facilities
offered by the public sector and the private sector.76
12. While defining punitive measures to deter abortion facilities that
provide unsafe abortion care, the MTP Act offers complete protection
to registered practitioners from any legal proceedings for any injury
caused to a woman seeking abortion. The MTP Act, The Medical
Termination of Pregnancy Rules, 1975 (hereinafter referred to as the
MTP Rules) and The Medical Termination of Pregnancy Regulations,
2003 define when (gestation limits etc.), under what conditions, by
whom and where an unwanted pregnancy can be legally terminated.
The act offers full protection to a registered medical practitioner
against any criminal proceedings for any harm or injury caused to a
woman seeking abortion, provided that the abortion has been or
intended to be done in good faith under the provisos of the MTP Act.77
The law is liberal enough in its scope such that it allows an unwanted
pregnancy to be terminated under any condition which may be
presumed to construe a grave risk to the physical or mental health of
the woman in her actual or foreseeable milieu-for example such as
when pregnancy results from a sex crime as in rape or intercourse with
a mentally challenged woman, or on eugenic grounds where there is
reason to suspect substantial risk to the child, if born, to suffer from
malformation or disease. The act allows medical termination of
pregnancy up to 20 weeks gestation. In the event of a termination
which is imperative to save the life of pregnant woman, the law makes

76. Dr. Mukesh Yadav and Dr. Alok Kumar, 'Medical Termination of Pregnancy
(Amendment) Act, 2002 : An Answer To Mother's Health & Female Foeticide",
27(1) 46 JIAFM (2005), available at http://medind.nic.in/jal/t05/
il/jalt05ilp46.pdf (Last visited on Jan. 21, 2013)
77. See Varsha Chitnis and Danaya Wright, "The Legacy of Colonialism : Law And
Women's Rights In India," 64(4) Washington and Lee L.R. 1315(2007).
 Page | 42

some notably generous exceptions. The doctor need not have the
necessary experience or training criteria stipulated in the MTP Rules
but still needs to be a registered allopathic medical practitioner, a
second opinion is not necessary for abortions beyond 12 weeks, and
the facility may not have prior certification.78 In such situations the
provider is required to report an abortion done to save a woman's life
within one working day. The law however is unclear about an abortion
beyond 20 weeks done to save a woman's life.
13. Another area of potential abuse if woman's reproductive right is the
mandatory reporting of post-abortion contraceptive use required by
MTP Regulations (Form 2) which state may use to compel abortion
providers to achieve family planning targets. Such monitoring often
results in a form of coercion of women seeking abortion especially in
the public sector.79

78. Paige Passano, "Legal but Not Available : The Paradox of Abortion in India."
available at http://www.indiatogetehr.org/manushi/issue126/abortion,htm
(Last visited on January 3, 2013)
79. Ganatra B, Hirve S, Walawalkar et al. induced abortions in a rural community
in western Maharashtra : prevalence and patterns. Working paper series,
New Delhi : Ford foundation, 1998.