Illegal sex determination: Did Mitu Khurana lose as a result of judicial insensitivity?

Last Friday, after a hearing that barely lasted a few minutes, the Supreme Court dismissed Dr Mitu Khurana’s case. It was a bitter end to the Delhi resident’s eight-year-old battle against the doctors who allegedly conducted an ultrasound to illegally determine the sex of her twin daughters, apparently in collusion with her husband and in-laws.

Earlier, in April, the Delhi High Court had quashed the proceedings against the two accused doctors – Dr Harsh Mahajan of Mahajan Imaging, and Dr Nitin Seth, the radiologist who conducted the ultrasound – as it felt the case had exceeded the period of limitations of three years, a stipulation under criminal law.

Khurana’s case, activists said, is a huge setback to the women’s movement against the country’s rapidly declining sex ratio. At last count, according to the 2011 Census, the child sex ratio had declined from 927 girls for every 1,000 boys to 919 girls to 1,000 boys.

How it all started

Khurana’s story began in 2005 when, a year after marriage, she became pregnant. Her doctor husband Kamal Khurana and his relatives, she said, pressed her for an illegal sex determination examination, which she refused to do. They later tortured her and tried to force her to terminate her pregnancy, allegedly on finding out that she was carrying girls.

Sick with stomach pain and nausea – after she was allegedly fed cake with eggs, which she was allergic to – she was admitted to Jaipur Golden Hospital in Delhi. Here, she underwent an ultrasound examination – without her consent and while heavily sedated, she claimed.

In 2008, she found the ultrasound report and suspected it was actually a sex determination test. She filed a complaint with the National Commission for Women, the health minister and the appropriate authority under the Pre-Conception and Pre-Natal Diagnostic Techniques Act. When no major action was taken, she filed a complaint before a magistrate.

When the magistrate court summoned the accused doctors in 2011, they, in turn, filed a case in the Delhi High Court.

Khurana – said to be the first Indian woman to sue her now former husband and his relatives under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, that bans foetal gender determination – lost the case despite having documentary evidence against the doctors.

During the trial, Dr Mahajan admitted in an affidavit to running an ultrasound imaging centre without registration, in direct contravention of the 1994 law.

Government health authorities, too, backed Khurana. They said the imaging centre had failed to submit her Form F – mandatory under law to be filled by the pregnant woman undergoing such an ultrasound test – to them. Her form, in fact, had gone missing.

The period of limitations

“When despite the odds, one courageous woman takes up a battle against the doctors, she is meted with such treatment,” said advocate Anu Narula. “This is Delhi. Imagine remote areas where sex determination is done as a matter of right.”

Narula made the remarks at a press conference where she spoke on the issue of judicial insensitivity along with fellow advocate Indira Unninayar, feminist activist and researcher Bijayalakshmi Nanda, social activist Indu Prakash Singh and Khurana.

The lawyers said the interpretation of the period of limitations in this case was a flawed and erroneous argument. They pointed to the fact that before filing the case with the appropriate authority, Khurana had filed several police cases against her ex-husband and in-laws and that these also qualified as complaints.

The activists felt the judges interpreted the provisions of such socially-beneficial laws in a pedantic and technical manner.

“After 11 years of fighting this battle, she lost the case because she was late by a mere 13 days,” said Narula. “What is a pregnant woman supposed to do?”

Need for judicial sensitivity

“Her case was exemplary in the way it broke the silence on this issue,” said Nanda. “This was considered a sanitised crime, done with the collusion of doctors and relatives.”

Urging the judiciary to look at gender violence with greater sensitivity, the activist said, “The biggest loss for this cause is that we lose on these kinds of heroes who brave the system. The Supreme Court will have to be better than a khap panchayat.”

Unninayar said the judges had shown insensitivity by questioning Khurana’s credibility because she had filed other cases against her ex-husband and in-laws under the Domestic Violence Act. “This is also a case to raise the question of judicial accountability,” she said. “It is a complete subversion of justice.”

Unlike in the case of Khurana, cases under the 1994 Act – which provides for a maximum punishment of three years in jail and a penalty of up to Rs 50,000 – are usually filed by the government or appropriate authorities such as the health department. Many of these cases fall apart in court, often with witnesses turning hostile.

“Nobody is interested in these cases, and the judiciary’s attitude is appalling as they look at technical grounds when they hear these cases,” said Varsha Deshpande of the Lek Ladki Abhiyan in Maharashtra.

Khurana said she had taken up the case for her daughters. “I did not want them to live in such a society,” she said. “But now, what message do I give other women in similar circumstances? Does this mean I made a mistake by fighting this system?”