New Delhi: Having sex on even dates can help conceive a son, while odd dates are better to beget a daughter. This calendar-based ‘advice’ on conception, delivered by a Maharashtra preacher during a sermon, is set to be scrutinised by a sessions court to determine if it amounts to an advertisement propagating sex selection, which is illegal under the law.
The development comes after the Bombay High Court’s sanction last week for prosecuting the preacher — Nivrutti Kashinath Deshmukh ‘Indorikar’, popular for his so-called comedy kirtans.
The saga started at the beginning of 2020 when Deshmukh offered his questionable reproductive advice to a gathering. Soon thereafter, a complaint was filed against him for allegedly violating the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994.
In July 2020, a magistrate’s court in Maharashtra’s Ahmednagar district initiated proceedings against Deshmukh. However, in March 2021, another sessions court in the same district directed the dismissal of the complaint.
In doing so, the sessions judge had opined that the magistrate’s order seemed to be the outcome of a “media trial” because Deshmukh had “large-scale followers” across Maharashtra.
Subsequently, two petitions challenging the dismissal of the case were placed before the Bombay High Court, including one filed by social activist Ranjana Pagar-Gawande from an association called the Andhashraddha Nirmoolan Samiti (Superstition Eradication Committee).
After hearing the matter, Justice Kishore C Sant expressed the view that the case against Deshmukh warranted a trial and overturned the order of the sessions court. In his 16 June judgment, Sant also said that the court hearing the case should examine whether such speeches qualify as advertisements and propagation punishable under the PCPNDT Act.
He noted that the trial court should proceed “without being influenced by observations made by this court or by the sessions court while deciding the revision”.
Meanwhile, preacher Deshmukh, in his defence, has argued that the ayurvedic books he relied upon in his sermon were strongly supported by various religious texts. He provided the court with a comprehensive list of these books, which have been documented in the high court judgment.
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‘Techniques to conceive a male child’
The Bombay High Court judgment noted that Nivrutti Kashinath Deshmukh is a ‘kirtankar’ or a public speaker, who “normally gives speeches in lucid manner” before large assemblies of people. It further observed that kirtankars have influence over people in rural and semi-urban areas.
In this case, Deshmukh had addressed a gathering about “techniques to conceive a male child”, by referring to extracts from religious and ayurvedic texts, in January 2020. The same day, the video was also uploaded on YouTube.
The kirtankar asserted that if a husband and wife engaged in sexual contact on even dates, the wife would conceive a male child. Conversely, if they engaged in sexual intercourse on odd dates, the wife would conceive a female child.
The HC judgment also highlighted some of the other tips given by Deshmukh to ensure a desirable progeny.
Among these was the claim that if sexual intercourse occurs at an inauspicious time, the resulting child would tarnish the family’s reputation.
“(Deshmukh) also further stated that even after six months if a fetus in womb takes a round on right side it turns to be a male child and takes round of left side then it turns to be a female child by giving some examples. (sic),” says the judgment elucidating on Deshmukh’s speech.
What does law say?
In the wake of his sermon, a complaint was lodged against Deshmukh by the medical superintendent of the rural hospital in Sangamner of Maharashtra’s Ahmednagar district.
The complaint against the preacher alleged that he was guilty of offences under Sections 22 of the PCPNDT Act.
The law was introduced to curb the practice of female foeticide, and, among other things, prohibits sex selection, before or after conception. Section 2(o) stipulates that sex selection “includes 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”.
Section 22 of the law prohibits advertisement relating to prenatal determination of sex.
The first clause of this section bars the issuance, publication, distribution, or communication of any advertisement related to facilities for pre-natal determination of sex or sex selection before conception. This includes genetic counselling centres, genetic laboratories, genetic clinics, and any other medical facilities equipped with ultrasound machines, imaging machines, scanners, or other technologies capable of determining the sex of the foetus or sex selection.
The second clause prohibits any person or organisation from issuing, publishing, distributing, or communicating any advertisement regarding prenatal determination or preconception selection of sex by any means — scientific or otherwise.
The punishment for violating Section 22 is a three-year jail term with a Rs 10,000 fine.
Section 22 also explains that an advertisement may include any notice, circular, label, wrapper, or any other document. It also encompasses ads through the internet or any other print or electronic media, and any visible representation such as hoardings, wall-paintings, signals, light, sound, smoke, or gas.
‘Sundry statements’ vs advertisement
Upon reviewing the complaint against Deshmukh, the magistrate initiated legal proceedings against the accused, observing that “prima facie it appears that the content used and the statements made by the accused is communication of procedure and provision of ‘sex selection’.”
However, Deshmukh challenged this decision in the sessions court, which ultimately dismissed the complaint.
Setting aside the magistrate’s order, additional sessions judge DS Ghumare noted that the preacher had not advertised any facilities for pre-natal sex determination before conception at any centre, laboratory, or clinic.
The court clarified that it did not need to “dwell upon the issue of either misogynistic statements made by the applicant accused or his kirtans poking fun at societal ills”. It added that its focus was solely on determining whether the controversial statements fell within the scope of the offense under Section 22 of the PCPNDT Act.
Judge Ghumare then analysed the provisions of the law and observed that the allegations and conclusions drawn by the appropriate authority to prosecute Deshmukh reflected an “irresponsible and casual approach” and may have been done “under pressure and to humour someone”. He claimed that the complaint lacked any connection to a violation of the PCPNDT Act.
The court opined that Section 22 would come into play only in case of “commercial advertisements and not to any sundry statements regarding sex selection made in a casual manner by any person”.
It said that the magistrate’s order to start proceedings against Deshmukh appeared to have been passed “without application of mind to the facts of the case before him”, and that continuation of the criminal proceedings against the preacher “would be gross abuse of process of law apart from a waste of judicial time”.
The court, therefore, concluded that recommending sexual contact on particular days for conceiving a male child cannot be said to be propagating sex selection.
‘Santanyog, Dharmasindhu, Gurucharitra’
With the sessions court’s order being challenged before the High Court, Deshmukh has argued that he relied on various religious texts to impart his advice, including ‘Gurucharitra’, ‘Ashtang Hridayam’, ‘Dharmasindhu’, and ‘Santanyog’. He gave the court a list of these books as well, as recorded in the high court judgment.
His lawyer further argued that since this material is already readily available to everybody, speaking on them in public cannot be considered illegal.
The central question before the court was whether the preacher’s actions amounted to “an offence under PCPNDT Act and whether speeches amount to propagation of sex selection or advertisement of any diagnostic technique.”
Regarding the judgments issued by the magistrate and the sessions court, Justice Sant appreciated the former, but rapped the latter.
He said that the magistrate court “had rightly considered the complaint and the material” and had “come to a right conclusion”.
Sant, however, said that the sessions court had “practically appreciated all the material like evidence after trial”, came to a conclusion, and “delivered the judgment”.
The HC judgement observed that the words “advertisement or propagating technique of sex selection”, cannot be restricted only to diagnostic centres or clinics but to “anything that propagates or tries to impose upon the message that by use of certain techniques sex of foetus can be selected”.
However, upon the request of Deshmukh’s lawyer, the HC stayed the effect of the order for four weeks to allow them to file an appeal.
(Edited by Asavari Singh)
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