1. Facts of the Case
‘A’, a woman who has already undergone three abortions, has now conceived for the fourth time. During the pregnancy, it is discovered through illegal prenatal sex determination that the fetus is female. Upon learning this, her husband and mother-in-law are coercing her to abort the child once again solely because of the fetus being a girl.
This scenario represents gender-based discrimination, violation of reproductive rights, domestic violence, and potential offenses under Indian criminal law, particularly gender-biased prenatal practices.
2. Issues in the Case
- Can a woman be forced to undergo an abortion against her will, especially due to the fetus being female?
- What legal remedies are available to ‘A’ under Indian law to protect herself and her unborn child?
- Are the husband and mother-in-law liable under Indian penal and special laws for coercing abortion?
- What legal protections does the fetus, particularly a female fetus, have under Indian law?
3. Legal Principles and Applicable Laws
A. Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act)
- Section 3: Prohibits use of pre-natal diagnostic techniques for determining the sex of the fetus.
- Section 6: Specifically prohibits any person from conducting or communicating the sex of the fetus.
- Section 23: Punishes anyone involved in sex determination or sex-selective abortion with imprisonment (up to 3 years) and fine.
🔹 In this case, the determination of sex and decision to abort based on gender is a punishable offense under the PCPNDT Act.
B. Indian Penal Code, 1860 (IPC)
- Section 312: Causing miscarriage without the woman’s consent is a criminal offense, punishable with up to 7 years of imprisonment.
- Section 313: Causing miscarriage without a woman’s consent, even with her husband’s or family member’s pressure, is a graver offense punishable with life imprisonment.
- Section 498A: Any act of cruelty by husband or relatives to force a woman into unlawful abortion is punishable.
- Section 315: Act done with the intent to prevent a child from being born alive is also an offense.
🔹 The husband and mother-in-law can be held criminally liable under the IPC for coercing the woman into an unwanted abortion.
C. Medical Termination of Pregnancy (MTP) Act, 1971 (Amended 2021)
- Abortion is legal up to 20 weeks, and up to 24 weeks for special categories (rape survivors, minors, etc.).
- Consent of the pregnant woman is mandatory.
- No third party (not even the husband or family) can force a woman to abort.
🔹 In this case, ‘A’ has full legal autonomy over her pregnancy. If she does not consent, abortion cannot be carried out legally.
D. Protection of Women from Domestic Violence Act, 2005 (PWDVA)
- Section 3: Includes verbal, emotional, and physical abuse, especially in matters of reproductive autonomy.
- Section 18 to 23: Provides for protection orders, residence orders, monetary relief, and custody orders.
🔹 ‘A’ can seek protection from her abusive husband and in-laws through the PWDVA by approaching the Magistrate or a Protection Officer.
4. Possible Judgement (Advisory Opinion)
Based on the above legal principles, the woman (‘A’) has several strong legal protections and remedies:
A. Protection for Herself and the Fetus
- The court may issue a protection order under the PWDVA, 2005, restraining the husband and mother-in-law from threatening or coercing her.
- A First Information Report (FIR) should be filed under Sections 312, 313, 498A, and 315 of the IPC, as well as the PCPNDT Act.
B. Declaration of Illegality of Sex-Selective Abortion
- The use of prenatal sex determination and coercion to abort on that basis is illegal and invites strict punishment.
- The doctor or diagnostic clinic that revealed the sex of the fetus should also be reported and prosecuted under the PCPNDT Act.
C. Autonomy of the Woman
- The woman’s right to bodily autonomy and reproductive choice is protected by law and recent court rulings (e.g., Suchita Srivastava v. Chandigarh Administration, 2009).
- No one can compel her to undergo an abortion, and she has the full right to continue the pregnancy.
D. Future Guidance
- The woman can be advised to seek counseling, legal aid, and medical support, and be connected with women’s protection NGOs or shelters, if necessary.
Conclusion
The case highlights a grave violation of women’s rights and child protection laws. Indian law is firmly against sex-selective abortion and supports the woman’s right to carry her pregnancy without coercion. ‘A’ should be advised to take immediate legal action to protect herself and her unborn daughter, and the offenders (husband, mother-in-law, and the doctor) should be brought to justice under applicable provisions.
