On 30th October, while expressing its concern over the practice of prenatal sex determination, the Punjab and Haryana High Court dismissed the anticipatory bail of an accused booked in a case of alleged determination of foetus under the Prohibition of Sex Selection Act, 1994.
The bench lead by Justice Avneesh Jhingan observed that “The Constitution guarantees equality to genders but prenatal sex determination deprives a female foetus to come to this world. In a civilized society, the sex of the foetus cannot be a determining factor for having a lease of life to see this world, if permitted the consequences would be devastating, the civilization itself would be endangered.”
The accused Hassan Mohammad, was booked by the Haryana Police under Sections 353 (Assault or criminal force to deter public servant from discharge of his duty), 186 (Obstructing public servant in discharge of public functions), 420 (cheating) of IPC and Sections 4, 5, 6, 23 and 29 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994, on September 29, 2020.
The police received secret information about the illegal activities being carried out under the Act. A team of doctors was associated with raiding the location. Therefore, as per Police, a decoy customer was deployed to get an ultrasound done, for determining the sex of foetus.
The payment was made through marked currency notes. Thereafter, the accused allegedly dramatized the conduct of ultrasound on the decoy customer and played a pre-recorded video (on an LCD) to show that ultrasound was being conducted in the name of sex determination. In the raid, LCD and the equipment for playing videos along with marked currency notes were seized.
The matter was placed before the HC bench after the accused Hassan Mohd sought anticipatory bail wherein the counsel for the petitioner submitted that there was not even a single complaint by anyone. It was further argued that as no ultrasound machine was recovered from the premises, the provisions of the Act will not apply. The petitioner also contended that there was no complaint against him by anyone.
Nonetheless, the Court did not accept this contention and observed that ‘the person who is in active participation against an enactment, in other words, is a party to the illegal act, is not expected to come forward to make a police complaint.’
The state counsel, however, opposed the plea for anticipatory bail, stating that custody of the accused is necessary as a number of people have been defrauded.
The bench after hearing the arguments held that “Determination of sex of the foetus is malice which is affecting the society day in and day out. The desire to have a male child is an open secret. It has affected the gender ratio of society. Considering the disdainful attitude of the society to a female child and the use of diagnostic equipment for the female foeticide Act was enacted to curb the pre-natal sex determination. Despite the specific legislation the menace of sex-based destruction of foetus continues to plague society. It is a classic case of misuse of the gift of development of technology”.
“The Constitution guarantees equality to genders but pre-natal sex determination deprives a female foetus to come to this world. In a civilized society, the sex of foetus cannot be a determining factor for having a lease of life to see this world, if permitted the consequences would be devastating, the civilization itself would be endangered. To put in other words termination of female foeticide is the destruction of the woman of the future. There cannot be a dispute on the fact that female has a multi-facet role in society,” stated the bench.
Stating that the “female foeticide is the destruction of a woman of future, the female has a multi-facet role in society,” the bench dismissed the petition.