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Report No. 35

Topic Number 46

Exemption for pregnant women

891. Exemption for pregnant women.-

The question whether any exemption should be given by statute to pregnant women may be considered. A provision on the subject, in some form or the other, is found in the laws of certain countries1. The law in some countries provides that the sentence of death shall not be passed on pregnant women. In some countries, the sentence of death is not to be notified till the lapse of 40 days after child birth. In some countries, the execution of the sentence is merely to be postponed. The period of postponement is also specified by the laws of certain countries. For example, in Greece, it is postponed for six months in case of breast-feeding and otherwise for 30 days.

1. Comparative material is given elsewhere.

892. The English provision on the subject is contained in the Sentence of Death (Expectant Mothers) Act1, 1931, sections 1 and 2 of which run as follows:-

1. Section 382, Code of Criminal Procedure, 1898.

"Section 1.-Where a woman convicted of an offence punishable with death is found in accordance with the provisions of this Act to be pregnant, the sentence to be passed on her shall be sentence of imprisonment for life instead of a sentence of death."

Section 2.-(1) Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where the court before whom a woman is so convicted thinks fit so to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by a jury.

(2) Subject to the provisions of this sub-section, the said jury shall be the trial jury, that is to say, the jury to whom she was given in charge to be tried for the offence, and the members of the jury need not be resworn:

Provided that-

(a) if any member of the trial jury, either before or after the conviction, dies or is discharged by the court as being through illness incapable of continuing to act or for any other cause, the inquiry as to whether or not the woman is pregnant shall proceed without him; and

(b) where there is no trial, jury have disagreed as to whether the woman is or is not pregnant, or have been discharged by the court without giving a verdict on that question, the jury shall be constituted as if to try whether or not she was fit to plead, and shall be sworn in such manner as the court may direct.

(3) The question whether the woman is pregnant or not shall be determined by the jury on such evidence as may be laid before them either on the part of the woman, or on the part of the Crown, and the jury shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant.

(4) Where on proceedings under this section the jury find that the woman in question is not pregnant, the woman may appeal under the Criminal Appeal Act, 1907, to the Court of Criminal Appeal, and that court, if satisfied that for any reason the finding should be set aside, shall quash the sentence passed on her and instead thereof pass on her a sentence of imprisonment for life.

(5) The rights conferred by this section on a woman convicted of an offence punishable with death shall be in substitution for the right of such a woman to allege in stay of execution that she is quick with child and the last mentioned right shall cease as from the commencement of this Act.".

893. The provision in India is contained in section 382 of the Code of Criminal Procedure, 1908, which may be quoted1:-

"382. If a woman, sentenced to death, is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to imprisonment for life.".

This section leaves the matter to the discretion of the High Court, which can-

(i) either postpone execution of the sentence, or

(ii) commute it to the lesser one.

894. Detailed provisions as to medical examination of the woman, or as to an appeal by her from a finding that she is not pregnant which are contained in section 2(4) of the English Act, or in the laws of certain other countries1, are not found in the Indian Code. Since, however, this has not caused any practical difficulty, it does not appear to be necessary to make any change in the law by inserting elaborate provisions.

1. Comparative material given elsewhere may be seen.

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