Supreme Court dismisses petition by godmen peddling odd–even day intercourse scheme for sex determination of child

The godman had also said that "if intercourse is done with a female during an inauspicious time then the child born becomes rough, clumsy and one that loses respect of your claim".

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ON Tuesday, the Supreme Court dismissed a petition filed by a godman who is sought to be prosecuted under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994.

The godman had made an utterance to the effect that "if intercourse with a female is done on even days then one gets a male child, if intercourse with a female is done on odd days then one gets a female child".

The godman had also said that "if intercourse is done with a female during an inauspicious time then the child born becomes rough, clumsy and one that loses respect of your claim".

The Bench took note of Section 2(o) of the Act, which defines "sex selection" to include any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex.

It also took note of Section 6(c) of the Act which provides that no person shall, by whatever means, cause or allow to be caused, selection of sex before or after conception.

In addition, the Bench took note of Section 22 which states "no person, organisation, genetic counselling centre, genetic laboratory or genetic clinic, including clinic, laboratory or centre having an ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of the sex of a foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place."

The Bench comprising Justices Hrishikesh Roy and Pankaj Mithal was hearing an appeal filed by the godman challenging the Bombay High Court's June 16 Order quashing an Order of a sessions judge which set aside an Order passed by a judicial magistrate taking cognisance of the complaint against the godman.

The Bench observed that the Sections in the Act are broadly worded and would not interfere with the high court Order more so when only summons was issued against the petitioner Nivrutti Kashinath Deshmukh (Indurkar) on the basis of prima facie understanding of the complaint filed against him.

"Having considered the above and the strict liability envisaged under the Act, we see no reason to interfere with the impugned judgment of the high court," the Bench ordered.

On January 4, 2020, the godman's kirtan in which he made the statement was published on the Marathi kirtan video YouTube channel Indurkar. 

In the video, the godman also stated, "After six months of pregnancy, if the baby in the womb rotates to the right side, then it is a boy, and if the baby in the womb rotates to the left side, then it is a girl."

One Ranjana Pagar Gawande, who is also the secretary of Buva Baji Struggle Department, Maharashtra Superstition Eradication Committee, requested the "appropriate authority" to register an offence under the Act.

On June 20, 2020, the appropriate authority under the Act, that is, the district surgeon, Ahmednagar, filed a complaint in the court of judicial magistrate, first class, at Sangamner, against the accused-petitioner for the offence under Sections 22(3) and 23(1) of the Act.

On July 3, 2020, the judicial magistrate passed an Order stating that there appears prima facie material against the accused for issuing the process for the offence punishable under Sections 22(1) and 2 of the Act. 

However, on March 30, 2021, the sessions judge quashed the magistrate's Order observing that a simple statement made during a religious discourse that indulging in sexual relation on a particular day results in conceding a male child could not be said to be an offence under Section 22(1) of the Act.

The sessions judge also observed that the accused did not have any such centre, laboratory and clinic capable of undertaking the determination of the sex of the foetus or sex selection.

The high court, on an appeal by the appropriate authority, reversed the decision of the sessions judge and restored the Order of the judicial magistrate. It is against this Order that the godman had approached the Supreme Court.

Senior advocate Indira Jaising, who appeared for the original complainant, opposed the appeal in the Supreme Court and submitted that utterances made by the petitioners were squarely covered by Sections 2(o), 6(c) and 22 of the Act.

Advocate Sri Narayan Shukla, who appeared for the accused godman, heavily relied upon the reasoning given by the sessions judge in quashing the complaint against the godman.

The Bench, however, found no merit in the argument of Shukla and decided to dismiss the petition.

Click here to read the order.