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2 Mumbai doctors get jail for sex tests
Swati Deshpande, TNN 2 November 2009, 12:15am IST
MUMBAI: In a verdict that is possibly the first of its kind in Mumbai, a local court has convicted two doctors and sentenced them to three years' imprisonment for flouting the law that prohibits diagnostic tests for pre-natal and pre-conception sex selection.

An advertisement in a weekly magazine in November 2004 offering special treatment to those who "want a boy" landed 42-year-old homeopath Chhaya Tated and Dr Shubhangi Adkar, a 62-year-old who owns Shree Maternity and Nursing Home in Dadar, in trouble. Tated, who is based in Aurangabad, used to practice at the Dadar nursing home on two Sundays a month.

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 three-year jail term. The court also imposed the maximum possible fine of Rs 10,000. The cumulative fine each of the doctors has to pay is Rs 30,000. 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, has been weak; convictions across the country are few.

In this case, however, the magistrate held that both were doctors and "reputed persons in the society" and "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 specialized treatment' at Shree Nursing Home and also in Aurangabad.

The BMC, represented by advocate Zarir Engineer, built its case with four witnesses, including one to prove the advertisement which was the main offence. The nursing home was not registered either, as required under the PNDT Act, and it had no detailed record of the "genetic counselling" provided. Nor did it display a board to warn against tests to detect sex of a child.

The PNDT Act prohibits advertisement for selection of sex of a baby before its conception and provides for a three-year jail sentence for its violation. Tated defended herself, blaming "miscommunication between her and the agent when she was placing the advertisement". She claimed she had said 'mool' in Marathi which meant `child' and not `mulga' (boy) while giving telephonic instructions. She said she even had issued another advertisement in December 2004 correcting ``the mistake and under the new heading of `want a child?'''

But the magistrate held her defence to be ``false and fabricated''. In fact, the evidence of a defence witness, a business associate of Tated, who took down her ad, also went against Tated. The court also held that her ``clarification'' in the magazine was an attempt to protect herself from the proceedings as she mysteriously dropped the name of the Dadar nursing home and her ``foreign-returned'' tag, instead, calling herself a ``homeopathic expert''. The second ad had also been placed after the BMC began its action against the nursing home which she was aware of.

Dr Adkar's defence was that she had nothing to do with what Tated did at the nursing home where she was only allowed to visit as a homeopath and hence she could not be hauled up for the advertisement. But the magistrate held that she had ``cordial relations'' with Tated and hence her involvement could not be ruled out. Besides, if she truly wasn't involved in the ``crime and had learnt of the ad only during the BMC inspection, why had she failed to inform Tated's misconduct to the homeopathy board?''

The magistrate said Dr Adkar's ``implied consent can be ``inferred from her silence by providing aid to Tated at her nursing home which was not registered under the PNDT Act''. Every genetic counselling centre must be registered under the act and no pre-natal diagnostic tests could be permitted there for sex determination. The centre can only run diagnostic tests by a qualified genetic counsellor to verify the family history to rule out certain genetic abnormalities. In this case, the magistrate said, ``with no qualifications to run a genetic counselling centre, both accused were doing so at Dr Adkar's nursing home and that amounted to ``false impersonation to the innocent public''. Advocate D Ghate represented Tated.

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.


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A court has sentenced two doctors to three years' imprisonment for flouting the law that prohibits diagnostic tests for pre-natal and pre-conception sex selection.


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