FEMALE FEOTICIDE AND ITS LEGAL ASPECTS

INTRODUCTION

Women in ancient India were held in high esteem. In the early Vedic age, girls were looked after with care. They were given the facilities of education. Remarriage of widows were permitted. But in the later Vedic period daughters were regarded as a source of misery. The practice of polygamy deteriorated the status of women. Women in the later civilizations were not allowed to go to schools. In the medieval period, the practices of purdah system, dowry and sati came into being. Sati and polygamy were glorified. It was thought that the right place for women was in the home. Her main duty was to cook and provide children. Thus, women had been deprived of their rightful place in society. This was and has been going on for centuries.

The inhuman practice of sati where the wife burns herself alive in the funeral pyre of husband existed through the centuries. Raja Ram Mohan Roy fought against the evil practice and it was finally abolished by Lord William Bentinck in 1829. However after the development of science and technology, female feticide is being practiced on a large scale.

Female feticide is violation of a basic human right and guarantee under the Constitution. In the case of female feticide, the female child in the womb of expecting mothers, are not only denied the right to live but are robbed to their right to be born. The selection of male child over female is proof for denial of right to birth of a girl child. Social. Cultural, financial and psychological reasons are responsible for the prevalence of female feticide in our society.

It is the termination of the life of a fetus within the womb on the grounds that its sex is female. Female feticide is thus the conjunction of two ethical evils: abortion and gender bias. A fetus’ right to life outweighs the parents’ right to wealth, pride or convenience, whether the fetus is male or female. The term ‘sex selective abortion’ is preferable to the term ‘feticide’ since it points to both of the ethical evils inherent in this practice.

LEGAL ASPECTS RELATED TO FETICIDE

THE INDIAN PENAL CODE, 1860

Sections 312-316 of the Indian Penal Code, 1860 (IPC) deals with miscarriage and death of an unborn child and depending on severity and intention with which the crime is committed, the penalties range from seven years to life imprisonment for fourteen years, and fine.

  • Section 312: Causing miscarriage

A woman who herself causes herself to miscarry, is within the purview of this section

  • Section 313: Causing miscarriage without woman’s consent
  • Section 314: death caused by act done with intent to cause miscarriage
  • Section 315: act done with intent to prevent child being born alive or to cause it to die after birth
  • Section 316: causing death of quick unborn child by act amounting to culpable homicide

Until 1970, the provisions contained in IPC governed the law on abortion. IPC permitted ‘legal abortions’ did without criminal intent and in good faith for the express purpose of saving life of mother. Liberalization of abortion laws was also advocated as one of the measures of population control.

THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

The medical termination of pregnancy act was passed in July 1971, which came into force in April 1972. This law was conceived as a tool to let the pregnant woman decide on the number and frequency of children. It further gave them the right to decide on having or not having the child.

THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 1994

 The main purpose of enacting this act has been to:

  • Ban the use of sex selection techniques before or after conception;
  • Prevent the misuse of pre-natal diagnostic techniques for sex selective abortions;
  • Regulate such techniques stringent punishments have been prescribed under the act for using pre-conception pre natal diagnostic techniques to illegally determine the sex of the fetus.

THE CONSTITUTION OF INDIA, 1950

Section 312 of IPC read with the medical termination of pregnancy act 1971where all the restrictions imposed therein, including the time limit of 20 weeks, other than the ones to ensure good medical conditions, infringe the right to abortion and the right to health, which emanate the right to life as guaranteed by article 21 of the constitution. Freedom from interference in one’s privacy and family life is protected by article 21 of the universal declaration of human rights, article 17 of the civil and political rights covenant and article 11 of the American convention, and article 8(1) of the European convention. Right to abortion is a species of rights to privacy, which is again proclaimed a continuance of the right to life under article 21 of the constitution of India.

CASE LAWS

  • Vijay Sharma and Other v. Union of India

The couple, Vijay and Kati Sharma, based in the commercial metropolis Mumbai, challenged the validity of the PC-PNDT Act, a 2001 Indian Legislation which bans sex determination. But the judges said in a verdict that sex selection would be as good as female feticide.

  • Dr. Varsha Gautam w/o Dr. Rajesh Gautam v. State of UP

A pregnant woman wanted to get her abortion done because there was a girl child in her womb. She approached the petitioner Dr. Varsha Gautam at her hospital, who agreed to perform the abortion although it was an offence to carry out such an operation and even determination of the sex by using ultrasound technique was illegal. The petitioner was said to have engaged in getting abortions done in her hospital in collusion with doctors, who determined the sex of the fetus by conducting ultrasound tests. Her clinic was not even registered under the act and she was not entitled to conduct pre-natal diagnostic procedures therein.

CONCLUSION

In India, the available legislation for prevention of sex determination needs strict implementation, alongside the launching of programmers aimed at altering attitudes, including those prevalent in the medical profession.

However, the objective of the law gets defeated due to lacunae in the law and lack of proper implementation. Even though the law is a powerful instrument of change yet law cannot root out this social problem. The girls are devalued not only because of the economic considerations but also because of socio-cultural factors. It is therefore essential that these orthodox beliefs are tackled by changing the thought process through awareness generation, mass appeal and social action.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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