Bharatiya Nyaya Sanhita, 2023
Section 92
Causing death of quick unborn child by act amounting to culpable homicide
Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a 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. Illustration. A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section. Of offences against child
Why this exists
Historically, causing the death of an unborn child fell into a legal grey zone: since a foetus was not treated as a legal 'person', an act that killed only the unborn child (while the mother survived) could not be charged as homicide of the mother, and separate protection was needed. Colonial-era Indian Penal Code drafters (Section 316, now renumbered as Section 92 in the Bharatiya Nyaya Sanhita, 2023) created this specific offence to close that gap, ensuring that reckless or intentional violence against a pregnant woman leading to the death of a developed unborn child does not go unpunished.
How courts read it
Courts under the older, identical IPC Section 316 have held that the prosecution must show two things: first, that the act would have amounted to culpable homicide if it had killed the woman, and second, that the unborn child was 'quick' at the time — i.e., had reached a stage of foetal development where its movements could be felt, not merely an early-stage pregnancy. Judgments have distinguished this offence from general provisions on causing miscarriage, emphasizing that Section 92 (like its predecessor) requires a culpable-homicide-level act and a quick, not merely conceived, foetus.
Common misconceptions
- Myth: This section applies to any miscarriage caused by an accident or negligence.
Fact: Courts have read this provision narrowly — it only applies when the act would itself amount to culpable homicide if it had killed the woman, not to ordinary negligence or accidents. - Myth: The law protects the unborn child from the moment of conception.
Fact: The provision specifically requires the child to be 'quick', meaning at a stage of development where movement can be detected, not just any stage of pregnancy. - Myth: If the mother survives, no serious crime has occurred.
Fact: This section exists precisely to punish the death of the unborn child as a separate serious offence, regardless of whether the mother lives.