JUDGMENT
Abhay M. Naik, J.
1. This petition has been preferred for damages on account of unsuccessful operation of tubectomy.
2. Short facts leading to the petition are that an operation of tubectomy was performed on the petitioner on 26-2-2000 under the ‘Nasbandi-karan Scheme’ at J.P. Hospital, Tulsi Nagar, Bhopal organized by Health Center, Gandhi Nagar, Bhopal and a certificate to this effect was duly issued as contained in Annexure P-2.
3. On 10-1-2005, Sonography was performed and the petitioner was informed that she had conceived. On 19-5-2005 she gave birth to a male child. It is stated in the petition that the husband of the petitioner is an employee of M.P. Road Transport Corporation and is in receipt of Rs. 2500/- per month only as a driver. She had already a son and three daughters therefore, she had undergone the operation of tubectomy because she could not afford a child anymore. Since, the son was born despite the operation of tubectomy, it is stated that the operation was performed negligently and in improper manner. She has claimed that the State Government may be directed to bear the expenses of maintenance including education, medical facility etc. of the male child born on 19-5-2005.
4. After hearing the submissions, I am of the opinion that the petition contains no substance. The fact that the petitioner has conceived must have been known to. her immediately on account of missing menstrual periods. It is not medically correct that the knowledge of conception became known to her for the first time on 10-1-2005 by the report of Sonography. Thus, the petitioner could have availed the medical services of the State Government for termination of pregnancy immediately after she did not wish to have the male child in question.
5. Shri Ashok Shrivastava, learned Counsel referred to the following passage from the “Law of Torts”, 25th Edition, 2006 by Hon’ble Justice G.P. Singh (Former Chief Justice of M.P. High Court):
The Allahabad and Madhya Pradesh High Courts in cases where the wife gave birth to a child after the vasectomy operation of the husband in a Government Hospital, which failed because of negligence of the surgeon have in writ petitions also allowed damages to the wife for loss of dignity (as she may be accused of being unfaithful) and violation of her fundamental right under Article 21 to enjoy life with dignity.
6. Aforesaid paragraph shall not detain this Court any more for the reason that the question involved herein came up before the Apex Court twice in the case of State of Haryana and Ors. v. Santra and State of Punjab v. Shiv Ram and Ors. . In the case of Santra (supra), the plaintiff after undergoing the sterilization operation in a Government Hospital under the Sterilization Scheme, was issued a certificate of total sterilization operation and assured that she would not conceive a child in future. Due to the negligence on the part of the doctor conducting the operation the sterilization was not complete as only the right fallopian tube was operated upon and the left fallopian tube was left untouched. As a result the plaintiff conceived and gave birth to a female child in spite of the operation. The Supreme Court accepted the plaintiff’s claim both against the doctor and Government for damages with the following observations:
19. Family planning is a national programme. It is being implemented through the agency of various Government hospitals and health centres and at some places through the agency of the Red Cross. In order that the national programme may be successfully completed and the purpose sought may bear fruit, everybody involved in the implementation of the programme has to perform his duty in all earnestness and dedication. The Government at the Centre as also at the State level is aware that India is the second most populous country in the world and in order that it enters into an era of prosperity, progress and complete self-dependence, it is necessary that the growth of population is arrested. It is with this end in view that the family planning programme has been launched by the Government which has not only endeavoured to bring about an awakening about the utility of family planning among the masses but has also attempted to motivate people to take recourse to family planning through any of the known devices or sterilisation operation. The programme is being implemented through its own agency by adopting various measures, including the popularisation of contraceptives and operation for sterilizing the male or female. The implementation of the programme is thus directly in the hands of the Government officers, including Medical Officers involved in the Family Planning Programmes. The Medical Officers entrusted with the implementation of the Family Planning Programme cannot, by their negligent acts in not performing the complete sterilisation operation, sabotage a scheme of national importance. The people of the country who co-operate by offering themselves voluntarily for sterilisation reasonably expect that after undergoing the operation they would be able to avoid further pregnancy and consequent birth of an additional child.
37. Ours is a developing country where the majority of the people live below the poverty line. On account of the ever increasing population, the country is almost at the saturation point so far as its resources are concerned. The principles on the basis of which damages have not been allowed on account of failed sterilisation operation in other countries either on account public policy or on account of pleasure in having a child being offset against the claim for damages cannot be strictly applied to Indian conditions so far as poor families are concerned. The public policy here professed by the Government is to control the population and that is why various programmes have been launched to implement the State-sponsored Family Planning Programmes and policies. Damages for the birth of an unwanted child may not be of any value for those who are already living in affluent conditions but those who live below the poverty line or who belong to the labour class, who earn their livelihood on a daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence.
42. Having regard to the above discussion, we are positively of the view that in a country where the population is increasing by the tick of every second on the clock and the Government had taken up family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilisation operation, the doctor as also the State must be held responsible in damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilisation.
7. Case of Santra (supra), came up for consideration before the Supreme Court in Shiv Ram’s case (supra). While distinguishing the earlier case, the Apex Court discussed in depth the various techniques adopted for female sterilisation and observed as follows:
25. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilisation operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam’s test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.
28. The methods of sterilisation so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilised woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy.
8. On the aforesaid parameters, it may be seen that the petitioner had undergone sterilisation operation and a certificate to this effect was issued vide Annexure P-2. However, she was not assured by the operating doctor or by the State Government that she would not conceive in future. No such document/certificate has been placed on record by the petitioner. The Medical Termination of Pregnancy Act, 1971 makes a provision for termination of pregnancy in certain cases. Relevant portion of Section 3 is reproduced below:
3. When pregnancies may be terminated by registered medical practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of Sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) *** *** *** *** *** (b) *** *** *** *** *** Explanation 1. *** *** *** *** *** Explanation 2. Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
9. Since the pregnancy of the petitioner was on account of failure of sterilisation operation, she could have got the pregnancy terminated by registered medical practitioner under Explanation (II). There is no iota on record to establish negligence on the part of the operating doctor. In these circumstances, the petitioner having not opted for the termination of pregnancy in accordance with the aforesaid provision, cannot be allowed to claim damages on account of birth of 5th child.
10. In the result, the petition being devoid of merits is hereby dismissed summarily, however, without order as to costs.