JUDGEMENT:- (Per Smt. Ranjana Desai, J.)

1. In this petition filed under Article 226 of the Constitution of India, the petitioners have challenged the constitutional validity of sections 2, 3-A, 4(5) and 6(c) of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, “the said Act”) as amended by The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 (for short, “the Amendment Act, 2002”).

2. Before dealing with the contentions raised in the petition, it must be stated that challenge to the constitutional validity of the said Act on the ground of violation of Article 21 of the Constitution of India has been rejected by this Court in Vinod Soni & Anr. v. Union of India & Ors., 2005 (3) MLJ 1131. It is not open to the petitioners to raise the same challenge again. We shall, therefore, only deal with the petitioners' contention that the said Act violates the principle of equality of law enshrined in Article 14 of the Constitution of India.

3. The petitioners are a married couple having two female children. It is their case as disclosed in the petition that they are desirous of expanding their family provided they are in a position to select the sex of the child. It is obvious from the petition that the petitioners are desirous of having a male child. According to them, they can then enjoy the love and affection of both, son and daughter simultaneously and their existing children can enjoy the company of their own brother while growing up if they are allowed to select sex of their child and have a son. The petitioners have approached various clinics for treatment for the selection of the sex of the foetus by pre-natal diagnostic techniques. However, all clinics have denied treatment to them on the ground that it is prohibited under the said Act.

4. According to the petitioners, they have no intention to misuse the pre-natal diagnostic techniques. They contend that they are financially sound and capable of looking after and bringing up one more child. They cannot be treated on par with other couples, who in order to have a male child, indulge in sex selective abortion. The provisions of the said Act cannot be made applicable without distinction. According to the petitioners, they only want to balance their family. They contend that a married couple, who is already having child belonging to one sex should be permitted to make use of the pre-natal diagnostic techniques to have a child of the sex which is opposite to the sex of their existing child. In fact, ideal ratio of females to males can be maintained if the pre-natal diagnostic techniques are allowed to be used. Burden of the song is that couples who are already having children of one sex should be allowed to have a child of the sex opposite to the sex of their existing children by use of the pre-natal diagnostic techniques at pre-conception stage.

5. We have heard Ms. Ratna Bargavan, the learned counsel appearing for the petitioners. The contentions raised in the petition and in the affidavit in reply of petitioner 1 and the contentions raised in the court by the learned counsel for the petitioners can be summed up as under :

(a) The provisions of the said Act cannot be made applicable without any distinction. Couples who have a male or a female child should be allowed to make use of the pre-natal diagnostic techniques to have a child of the sex opposite to the sex of their existing child to balance their family. Such couples cannot be treated on par with couples who choose the sex of foetus in order to have a male child leading to imbalance in male to female ratio. The unconstitutionality of the said Act is visible to the class of couples who are already having child/children of one sex.

(b) The Objects and Reasons of the Medical Termination of Pregnancy Act, 1997 (for short, “MTP Act”) read with section 3(2)(i) thereof permit termination of pregnancy of a woman by a reg

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