Judgment

HANSARIA, J.- Life is said to be the most sublime creation of God. It is this belief and conception which lies at the root of the arguments, and forceful at that, by many religious denominations that human beings cannot take away life, as they cannot give life. This idea is so intense with some religious leaders that they would even oppose any measure of birth control. Abortion or miscarriage would be opposed with greater force by these persons.

2. Mahatma Gandhi, Father of the Nation, urged long back in Harijan that God alone can take life because He alone gives it. For the Jains taking away of even animal life is a sin, as, according to them, animals are as much part of God as human beings. Buddhists too preach Ahimsa.

3. Our Rig Veda II recites:

"Grant us a hundred autumns that we may see the manifold world. May we attain the long lives which have been ordained as from yore."

Atharva Veda I contains the following:

"May we be enabled to see the sun for a long time."

The aforesaid shows that life is beyond price and it is not only a legal wrong, but a moral sin as well, to take away life illegally.

4. In the present appeals we are not concerned with taking away of life before its birth. We are concerned with destruction of foetus life. This is what is known as abortion or miscarriage. To dispel any doubt as to whether the foetus has a life, what has been stated by Taylor in his Principle and Practice of Medical Jurisprudence may be noted where the learned author has opined at p. 332 (13th Edn.) that legally both abortion and miscarriage are synonymous because the foetus being regarded as a "human life ... from the moment of fertilisation". It may, however, be stated that sometimes the word miscarriage is used for "spontaneous abortion" and "abortion" for "miscarriage produced by unlawful means".

5. This distinction is, however, not material for our purpose because Section 312 of the Penal Code speaks about causing of miscarriage and Section 314 punishes the person who has intent to cause miscarriage of a woman and while doing so causes the death of such woman. It is under this section that the appellant has been found guilty by the High Court of Kerala after setting aside the acquittal order of the learned Assistant Sessions Judge. For the offence under Section 314, the appellant has been sentenced RI for 4 years and a fine of Rs 5000. The High Court had also taken suo motu cognizance against the order of acquittal and it is because of this that along with the criminal appeal filed by the State which was registered as Criminal Appeal No. 415 of 1989 the High Court disposed of CrRC No. 44 of 1989, which is relatable to its own action. So, two aforesaid appeals have been preferred by the appellant. It may be stated that out of fine of Rs 5000 as awarded, a sum of Rs 4000 was directed to be paid to the children of the deceased towards compensation for loss of their mother, in case of realisation of fine.

6. Our law-makers had faced some difficulty when our Penal Code was being enacted. The authors of the Code observed as below while enacting Section 312:

"With respect to the law on the subject of abortion, we think it necessary to say that we entertain strong apprehension that this or any other law on that subject may, in this country, be abused to the vilest purposes. The charge of abortion is one which, even where it is not substantiated often leaves a stain on the honour of families. The power of bringing a false accusation of this description is therefore a formidable engine in the hands of unprincipled men. This part of the law will, unless great care be taken, produce few convictions but much misery and terror to respectable families, and a large harvest of profit to the vilest pests of society. We trust that it may be in our power in the Code of Criminal Procedure to lay down rules which may prevent such an abuse. Should we not be able to do so, we are inclined to think that it would be our duty to advise his Lordship in C