Author- Anu Priya
Women are worshipped in India as Devi, but when it comes to bear a child it’s always a son. This kind of contradiction still exists at its root. Gradually, it develops fundamental issues of degrading sex ratio. It’s not only about numbers but more about brutal and barbarous offences. Either it’s rural or urban areas, educated or uneducated, their mentality retains its darkest colour. People talk about women empowerment, who will be empowered or reserved if we won’t be able to stop killing a beautiful life in the womb.
Apart from domestic violence, women are still forced to abort their female child against their will. Sometimes it might result in the death of the women as well and other reproductive decease. The Advancement of medical and technological things made it easier than before. One of the most known medical procedure is Female foeticide. This is an act of determining the sex of an unborn child and eliminating the same. Whereas Infanticide means the murder of a newly born child both are recognized in Indian law as an offence. A survey in Bombay revealed that out of 8,000 abortions, 7999 were female fetuses. This barbarous act often goes unreported, but the sex ratio is the way to determine its existence.
Sex Ratio in India
Sex ratio refers to the average number of females for every thousand males. In India, the sex ratio has speedily declined, the last census of 2001 recorded in between (0 to 6) age group only 927 females per 1000 males (down from 945 to 1000 in 1991). The medical association reported 5 million female foetuses abortion every year, because of this serious predicament, NHRC of India asked the medical association to acknowledge the high rate of female foeticide. There is no ‘at-birth sex ratio’ data available nationwide. The reason behind this offence is mostly presumed to be done in secrecy and just to earn few more money clinics are deeply involved in it. However, we have micro-level organization including NGOs and women welfare committee at local or regional levels which reveals the current scenario.
India Penal Code
In IPC, section 312 to 318 deals with miscarriage, injuries, exposure of infants along with their abandonment etc.
Section 312- When someone causes miscarriage including women itself, without good faith shall be punished with a minimum of 3 years with or without fine and if the child is about to born then punishment extends to 7yrs with fine.
Section 313- When miscarriage caused without women’s consent shall be punished with a minimum of 10yrs and maximum with life imprisonment including a fine.
Section 314- When someone causes the death of the women with the intent to cause miscarriage shall be punished with a maximum of 10yrs imprisonment including a fine. In case it is without women’s consent the punishment shall extend to life imprisonment.
Section 315- Causing the death of the child before or after birth without good faith shall be punished with a maximum of 10yrs with or without a fine.
Section 316- When someone causes the death of a quick unborn child shall be guilty of culpable homicide and shall be punished with a maximum of 10years of imprisonment including a fine.
Section 317- Whoever being it father, mother or guardian expose or abandon the child under 12 years shall be punished with 7years of imprisonment with or without a fine. In case the child dies due to the above consequence then the offender shall be punished with the offence of murder or culpable homicide.
Section 318- Whoever conceal the birth of the child by secretly disposing of the dead body of a child, shall be punished with a maximum of 2 years of imprisonment with or without a fine.
Medical Termination of Pregnancy Act, 1971
This Act further exempt medical professional to terminate pregnancy on certain lawful conditions those are provided in this Act. Any other conduct of female foeticide will be regarded as professional misconduct and shall be punished with a criminal proceeding under the provisions of this Act.
Section 3 of MTP,1971– This section provides the ground on what circumstances pregnancy may be terminated by a medical practitioner-
- With good faith, that in case of continuance of pregnancy it would involve risk of life, grave injury, or mental health of pregnant women.
- Or, if there is a substantial risk of the child being born with abnormalities or handicapped.
In these conditions, it is lawful to abort a child within 12 weeks of pregnancy and in case of permission of 2 medical professionals it does not extends to 20 weeks of pregnancy.
Further, it provides mandatory exemption i.e., in the case of a Rape victim, it is lawful to terminate the pregnancy. And, in case there is a failure of device used by married husband and wife to limit their number child.
Whereas Sec 4 deals with the place of termination i.e., hospital and any other place approved by the government.
Section 5 of this Act provides an exemption of Sec 3 and Sec 4 including punishment for misconduct or violation of the provisions of this Act.
- In case of risk of the life of a pregnant woman, the length of termination of pregnancy can be increased with permission of at least two registered medical practitioners in good faith.
- Whoever without being a registered medical practitioner terminate the pregnancy, subject to the Indian penal code, shall be punished with a minimum of 2yrs and a maximum of 7yrs of rigorous imprisonment.
In case of violation of sec 4 (2) of this act shall be imprisoned for min 2 and max 7 yrs.
Pre-conception and Pre-natal Diagnostic Techniques (Regulation and prevention of misuse) Amendment Act, 2002 (Act no,14 of 2003)
This Act provides laws regarding the prohibition of sex determination for the prevention of female foeticide and the regulation of the technique of pre-natal diagnostic including other similar matters.
Sec. 3A. of this Act provide provisions to prohibit any person including a specialist to conduct or aid in conducting sex determination. Whereas sec 3B. deals with Prohibition on sale of an ultrasound machine or any other machine those are capable of sex determination to any unregistered clinic, laboratories, or person.
Sec 4 deals with the regulation of pre-natal diagnostic, which further elaborates specific conditions for conducting pre-natal diagnostic. Those are chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies and others as specified by the central supervisory board. It is strictly mentioned that these mentioned conditions will only be performed when-
- Women are above 35yrs,
- Women had already undergone foetal loss more than 2 times.
- If the women had been exposed to any kind of drugs or radiation etc.
- If parent consists hereditary genital diseases in their clan.
- Other condition as specified by the board.
Sec 5 provide significant provision for women, which every woman should be aware, this section states that written consent of pregnant women is mandatory to perform prenatal diagnostic, which includes disclosing all the medical complexities to the women in the language which she understands and meanwhile prohibits medical professional to communication sex identity of an unborn child to any person including the women itself.
Sec 6, specifically prohibit sex-determination of the child by any method. Whereas sec 22 deals with prohibition of advertisement of pre-natal or pre-conception determination of sex and its punishment which shall be 3yrs of imprisonment including a fine which may extend to 10 thousand rupees.
Sec, 23 majorly explains offences and penalties- whoever contravene provisions of this act shall be punished with imprisonment which may extend to 3yrs including a fine of max 10 thousand rupees, and on any subsequent conviction, the punishment may extend to 5yrs including a fine of max 50 thousand rupees.
And, the name of a medical practitioner who is liable for the contravention of this Act, shall be reported to the appropriate state medical council for taking further steps which include suspension of medical practitioner until the trial took place and if proven guilty, their name will be removed from the register of the council for the period of 3yrs and in case of subsequent conviction, their name will be removed permanently.
One who seeks aid for sex selection or pre-natal diagnosis subject to the condition provided under section 4 of this Act, shall be punished with imprisonment of 3yrs including fine up to 50 thousand rupees and 5yrs imprisonment including 1lac. Rupees for any subsequent offence.
Exception- women who compelled to undergo any kind of sex-determination technique are treated to be innocent and not liable for the offence.
Section 24- unless the contrary is proved pregnant women are treated innocent and his husband or relative whoever forced her to undergo pre-natal diagnosis for sex-determination are liable for abetment of the offence under sec 23(3) of the provided Act and shall be punishable for the offence provided in sec 23.
Sec 25 It deals it punishment for contravention of provisions of this Act, for which no punishment is provided, in that case punishment shall be extended to 3months with or without a fine up to 1000 rupees, on continuing contravention the fine may extend to 500 rupees every day till contravention continues.
Sec 27 made the offences under this Act to be cognizable, non-bailable and non-compoundable.
After going through all these provisions, laws, and regulations, it is found that laws are there to regulate prenatal diagnosis, abortion etc., but despite all still, there is an increment in female foeticide, we have different government schemes like ‘Beti Bachao, Beti Padhao Scheme’ Sukanya Samriddhi Yojana, Nirbhaya and others, but the problem is deeply rooted in the society itself, it’s not about poverty even affluent people have more engaged in such offences.
It’s about silent suffering, women who suffer, forced and tortured, they need to be aware, self-dependent, literate, and stronger to call for their rights. There is no doubt when it comes to implementation, the male syndrome of society is there to prevent its application. Male domination falls and resists women empowerment, treating the girl as a burden and male as one who proliferates and has the religious right of the pyre, this need to be eliminated from the conscience of every individual, a girl should have equal, all lawful, and family rights. This might take time but not impossible. The day when a girl won’t need reservation will be the day of equality.
Author Anu Priya is studying law at Kalinga university, Raipur