02 November 2009
By Swati Deshpande
In a rare case, possibly the first of its kind in Mumbai, a local court has convicted two women doctors and sentenced them to three years’ imprisonment for flouting the law that prohibits diagnostic tests on pre–natal and pre–conception sex selection.
An advertisement in a weekly magazine in November 2004 offering a ‘special treatment to those who want a boy’ landed 42–yearold homeopathic doctor Chhaya Tated and Dr Shubhangi Adkar, a 62–year–old who owns Shree Maternity and Nursing Home in Dadar, in trouble. Tated used to come from Aurangabad to the Dadar nursing home on two Sundays a month to practise.
Magistrate R V Jambkar of the Dadar Shindewadi court in Mumbai held the doctors guilty for four violations under the Pre–Conception & Pre–Natal Diagnostic Techniques (prohibition of sex selection) Act of 2003.
Significantly, the court not only found them guilty, but dismissed their plea for leniency and sentenced them to the maximum punishment permitted under the Act – a threeyear jail term. The court also imposed the maximum possible fine of Rs 10,000. The cumulative fine each that the doctors have to pay is Rs 30,000.
What the Law Says
Section 22 of the PNDT Act deals with prohibition of advertisements relating to preconception and prenatal determination of sex:
- It prohibits any person, organisation, genetic counselling centre or clinic which has a ultrasound scanner or other technology to determine the sex of a foetus from issuing any advertisement for the availability of sex determination or sex selection before conception
- No person can advertise in any manner about the pre–conception selection of sex by any means, scientific or otherwise
- Any violation attracts maximum three years jail and fine of up to Rs 10,000
However, both of them have been on bail since the criminal case against them began five years ago. They continue to be on bail after their conviction this August. The law is meant to prevent female foeticide and despite its amendment in 2003 to strengthen it, its enforcement, many health and child experts feel, is often weak and convictions across the country are few.
In this case, however, the magistrate held that since both were doctors and “reputed persons in the society, the society treated them as ideal persons”. “When such persons commit offences that are not only heinous but against the existence of society, they are not entitled to leniency because by their act they have encouraged determination of sex of a female foetus to prevent such pregnancy.”
The complaint against the two was filed in November 2004 by a BMC officer of G/N ward after a health officer visited and inspected the maternity home in Dadar based on a magazine ad placed by Dr Chhaya Tated. In the ad, that went under the heading ‘Want a (baby) boy?’, Tated described herself as a ‘foreign returned doctor offering specialised treatment’ at Shree Nursing Home and also in Aurangabad.
The BMC, represented by advocate Zarir Engineer, built up its case against the two with four witnesses, including one to prove the advertisement, which was the main offence. The nursing home was also found not to be registered as required under the PNDT Act, and it had no register to record details for ‘genetic counselling’ nor did it display a board to warn against tests to detect sex of a child.