Badshah Prasad Singh, Advocate
Chairman Legal Aid Committee,
State Bar Council Chhattisgarh (C.G.)
In view of judicial reforms which is the main purpose of this matter, this present thought deals only with some reasonable legislative, Judicial and Administrative Questions & few understandable solutions regarding child abuse concerning particularly with child in womb.
Article 39 (e) and (f) of the constitution of India are the provisions under the directive principles of state policy which stipulates that the tender age of the children should not be abused and children would be given opportunities and facilities to develop in a healthy manner in conditions of freedom and dignity. But this article is misinterpreted and mis-understood in matters of its implementation. Is underlivered child not a person of tender age?
For the purposes of the present convention a child means every human being below the age of 18 yrs. under the law applicable to child. Is the child in womb not a human being? Definition of child age is wrong. The concept of age as understood by legislators is erroneous in legislation.
Delivery and birth has not been correctly identified. The date of birth is the date of delivery. Mother does not give birth to a child. She delivers a child already born in her womb. Doctors also deliver child. Delivery may be classified as normal delivery and surgical delivery. This kind of distinction does not arise in matter of birth. Birthday is celebrated all over the world in ignorance. And birth and death register officially kept is not a valid record. The date of birth correctly understood will bring radical changes in all phases and fields of human life.
Justice seeks truth and truth emerges from gestalt perception. Human life has not been perceived as a whole. Noteworthy is the system of education of children in India. A great injustice is done in legislation in case of child in womb.
Article 28 recognizes the right of a child to compulsory and free primary education. The article suffers from human and social in justice. Is the child in womb is not a child? Has the child in womb not its influence on society? Does the first delivered child not increase pleasures in life of its parents and family members? Article 28 does not include prenatal education. Primary education begins after delivery. There is understandable difference between primary education and basic education. Prenatal education given to the undelivered child is basic education. Prenatal education will improve quality of life and standard of education proper management of human life without prenatal education is impossible.
Child in womb learns and has capacity to learn. Life history of Abhimaniyu, Ashtaavakra, Shukdeo and so on are past records of prenatal education. Present scientific findings too confirm this fact. Therefore in light of the above said description an amendment in article 28 of the Indira Constitution is needed without further delay to maintain dignity of undelivered child and democracy.
Idols made of stones have legal personality and legal right to sue for their claims including protection and maintenance. Though they too are dependent and functionally disabled like undelivered child who is not given legal right to sue on unjust and illogical grounds. This distinction is a disgrace of undelivered child and a mockage on human wisdom. Undelivered child is also a person equal to a person in existence. A minor has right to sue. Is undelivered child not a minor person? Undelivered child should also be considered as a legal personality and be given legal right to sue in interest of its growth and development and justice too.
For the first time in India an undelivered child of a divorced pregnant mother cried for maintenance. But the Magistrate and also District Judge refused its claim on the ground of non-existence.
A writ petition (6905/2000 group-C) undelivered, child (minor) Versus state of Uttar Pradesh and others was filed in High Court, Allahabad. A leaned advocate Nagendra Kumar Srivastava challenged the orders passed by subordinate court. His arguments was based on following grounds :
1) On the ground of Constitution of India.
2) On the ground of Law.
3) On the ground of Interpretations of statute.
4) On the ground of Medical Science.
5) On the ground of Dharma.
6) On the ground of Authentic news.
7) Meaning & difference of delivery, birth, person given in standard dictionaries.
The Advocate raised a very logical question before the court. He asked that if no person exists in womb. Then the question of damage, destruction and death not arise. Hence Sec. 316 I.P.C. is ineffective, invalid and illegal, which has made provision to extend imprisonment up to ten years and also liable to fine. The then Justice Ratnakar Das felt convinced and admitted writ in no time.
Under law undelivered child is not granted maintenance. Even child in womb of its divorced mother also does not get maintenance though he or she is quite innocent regarding the matter of divorce. Pregnant mother carries load of the child and financial load too, for maintenance of the child. Mother is caught in web to manage special diet; nutrients and medical care for the child. Father is set free from liabilities concerning the child in womb. Father should be legally bound to pay maintenance to the child. Courts of law should also expedite disposal of the cases concerning pregnant mother because the court has no right to harass an innocent child in womb.
Mother's womb is a strong chamber made by nature to save the child from all abuse, but child is not secured even in mother's womb. Materialistic, Philosophy of man, socio- economic structure of society and polluted environment hampers his physical growth and mental development even existence.
Undelivered child is mostly abused by doctors and mothers:
1. Dr's. Satanic role with child in womb.
Dr's role in human life is godly and satanic both. The sight of photos taken at the time of abortion of child in womb is extremely painful. The child reacts against the surgical instruments to save its life in womb. The doctor acts mercilessly and fights with helpless, confined and innocent child in womb with his cruel hands just for financial gains. He is a murderer not a killer. But generally he escapes strict laws against illegal abortions and protection of right of child in womb to be delivered safely under article 3 (2) - (Preamble to the Declaration of the Right of the Child adopted by the UNO on November 20,1959).
2. Heart less Mothers commits heineous crime with her own womb.
Married women for personal gratifications, better standard of living adjustment with condition of employment or pressure of husband and family members, fear of dowry etc. prefer deliberate miscarriage and use abortifacient or rush to the doctor who are professionally involved in this sin. Child who is in the womb of unmarried mothers are hard-hit. Unmarried mothers for her social prestige throw their wombs (national assets) as garbage. To develop healthy attitude towards unwanted delivery, pregnant women need guidance and counselling, through psychologist, social reformers, judges, advocates and trained government personnel.
