Desire to have a male child an open secret, sex determination of foetus a malaise affecting society: Punjab and Haryana High Court

While considering an anticipatory bail application moved by a person accused of running dud prenatal sex determination scans, the Punjab and Haryana High Court had some harsh words for those who underwent such procedures to later terminate their female foetuses. (Hassan Mohd. v. State of Haryana)."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 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 destruction of woman of future."Punjab and Haryana High Court.The order was passed by Justice Avneesh Jhingan..The accused in this case was apprehended pursuant to a covert operation undertaken by the Haryana Police. .Upon receiving information about the petitioner's activities, the police planted a decoy at the petitioner's clinic and caught the petitioner playing a pre-recorded abdomen ultrasound to declare the sex of the 'foetus'. .He claimed that no charge against him under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 would stand, since he did not actually conduct an ultrasound or have an ultrasound machine in his 'clinic'. .There was no complaint against him for his activities, his counsel argued additionally..However, Justice Jhingan reasoned that since the accused misrepresented the machine he was using as an ultrasound machine and declared the sex of the foetus at the end of the 'scan', he could be booked under the provisions of the Prohibition of Sex Selection Act..His declaration of the sex of the foetus determined the fate of the foetus and this would bring him under the purview of the Act, the Court said. .Sections 5(1), 5(2) and 6 were quoted in this regard. While Section 5(1) requires communication of the side effects of prenatal diagnostic tests to a woman, Section 5(2) and 6 prohibit communicating the sex of the foetus and determining the same..In the course of his order, the Judge went on to observe,."Determination of sex of the foetus is a malaise 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 the society. Considering disdainful attitude of the society to female child and use of diagnostic equipment for 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 the society. It is classic case of misuse of gift of development of technology.".Nixing the argument that there was no complaint against him for his activities, the Court said that no active participant in an illegal act is likely to come forward and make a complaint.."The persons who were being fleeced probably would not be aware that in the name of determination of sex they were shown pre-recorded video."Justice Avneesh Jhingan.Holding that a prima facie case was disclosed against the petitioner, his anticipatory bail application was dismissed..Justice Avneesh Jhingan clarified, however, that the observations were made solely for disposing of the anticipatory bail application..Advocate Sarfraj Hussain represented the petitioner and Haryana DAG Pankaj Mulwani appeared for the State of Haryana. .Read the Order: