r" AF^ HIGH COURT OF CHHATTISGARH : BILASPUR Wnt Petition No. 1744 of 2003 Petitioners 1. 2. Versiis Respoudents 1, 2. 3. 4. FT! Sonau Ram Sutyavaashi, son of Sanmiat Ram Khute, aged about 40 years. Sint. Chameli Suryavaiishi, wife of Sonau Raiii Suryavaashi, aged about 32 years Bofh are resideo.ts of vUlage Paiigaon, Distdct Jaajgir Champa (C.G.) State of Chhattisgai'h, tlirough Secretaiy, Department of Healfh aad Faaiily Welfare, Maatralay, D. K. S. Bhawaa, Raipur (C. G.) The CoUector, Janjgir Chaaipa (C.G.)^ District Jaojgir Cham.pa (C.G.) The Chief Medical & Health Officer, Jaajgir Champa(C.G.) TIie Block Medical Officer, Community Health Centre, Pamgarh, District Jaojgir Champa (C.G.) 8 WRIT PETITON UNDER ARTICLB 226/227 OF THE CONSTITUTION OF INDIA (SB: Honlble Shri Satish K. Agnihotri J.) Sliri P, K, Tulsiyaii, Advocate 011 tiie authority of Sliri M. K. Bhaduri, Advocate for flie petitioners. Shri Aran Sao, Govt. Advocate for fhe respondents. O RD E R forall (Passed on tiiis 19th day ofAugust, 2009) Heard. 1. The petitioners have filed this petition claimiag coxsipensation and inaiateuaace of fourfh chUd, who WQ.S bora on failure of famUy plaiining sterilization operatiou, undergoue by tlie petitioner No.2. 2. Leai-ned counsel appearing for the petitioners subinits that the petitioner No.l (Sonau Rani Suiyavaiishi) is husbaad aad fhe petitioner No.2 (Smt. Chameli Suiyavanshi) is wife. They were liaviag tliree raale children when tlie petitioner No.2 had undergone famUy plaiiniag stenUzation operatiou on 23.12.1994 (Annexure P/ 1) at the primQry healfh center, block- Panigarh, district - Jaiijgir Champa. After six monfhs of tlie operation, the petitioner No.2 Thakur conceived and she gave birth to a female chUd on 20.11.2000 (Annexure P/2). Learaed counsel submits that siace it was a case of negUgence on the part of fhe conceraed doctor, the respondents/ State is under an. obMgation to graiit coBipensation to the petitioners aad mauitenance of the fourth child naoiely Kavit Kuraari. 3. Shri Arun Sao, learaed counsel appearmg for fhe respondents/State subniits fhat neither the petitioners are eutitied for coiapensation nor tlie State is under obUgation to grant raamt.enan.ee to the fourth child offhe petitioners. Hon'ble Supreine Court ui Martiii F» D^Soiiza Vs. Mohd< Ishfaq1 iii para 53 held as under: "53. In State of Haryaiia v. Raj Raiii it was held that if a child is boni to a woiaaii even after she had undergone a stei-ilization operation by a surgeon, ttie doctor was not Mable because there cannot be a 100% certainty tliat uo cliild will be boiii after a sterilization operation. The Court followed tlie earUer view of anotlier three-Judge Bench ui State of Punjab v. Shiv Rain. These decisions will be deenied to have overrald fhe t^vo-Judge Bench decision ia. State of Haiyaiia v. Saatra ia wliich it was held that if a child is boni after the sterilization operation the surgeon will be liable for negUgence/' 4. Applyiag well settled priaciples oflaw to fhe facts ofthe case, which are identical to tiie facts iavolved m. the case ofMartia F. D9Boiisa (supra), this petition is disniissecl. 5. The allegation with. regard to the negllgence of tlie doctor cannot be decided in. writ junsdiction as it requires proper uivestigation. The petitioner inay approach fhe proper foruni that inay be available uuder provisious of law, if so advised, for tlie purpose of establishmg negligence ofthe doctor. Sd/- Satish K. Agnihotri Judge (2009) 3 SCC 1