IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE ELEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.15255 of 2004 Between: 1 Smt.M.Kavitha, w/o M.Chenna Reddy, r/o Khanapur Village, Chevella Mandal, Ranga Reddy District. 2 Sri M.Chenna Reddy, s/o Anthi Reddy, r/o Khanapur Village, Chevella Mandal, Ranga Reddy District. ..... PETITIONERS AND 1 State of Andhra Pradesh rep., by its Principal Secretary, Department of Medical & Health, Secretariat Buildings, Hyderabad. 2 The District Collector, Ranga Reddy District at Hyderabad. 3 The District Medical & Health Officer, Ranga Reddy District at Hyderabad. 4 Dr.K.Rajya Laxmi, r/o Government Maternity Hospital, Koti, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ, or order or direction more particularly one in the nature of writ of mandamus declaring the action of respondents in negligently performing the sterilization operation on the 1st petitioner which resulted in failure of the operation and in not paying the monitory relief and non provision of employment in the government to the petitioners as illegal, arbitrary, and also violative of Art.14 & 21 of the Constitution of India and consequently a) direct the respondent to take action against 4th respondent doctor for his professional negligence, which resulted in the failure of sterilization operation conducted on the 1st petitioner b) direct the respondent to pay Rs.4,00,000/- to the petitioners towards compensation for the damage caused to the petitioners and provide employment to the petitioners c) declare the petitioners' rights for contesting any election are unaﬀected on the ground of having 3 children Counsel for the Petitioners:SRI M.VENKATESWARLU Counsel for the Respondents: GP FOR MEDICAL HEALTH & FAMI.WELFARE The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.15255 of 2004 ORDER: The two petitioners are residents of Khanapur Village, Chevalla Mandal, in Ranga Reddy District. First petitioner is wife of second petitioner. They ﬁled the instant writ petition seeking the following reliefs. …a) direct the respondent to take action against 4th respondent doctor for his professional negligence, which resulted in the failure of sterilization operation conducted on the 1st petitioner b) direct the respondent to pay Rs.4,00,000/- to the petitioners towards compensation for the damage caused to the petitioners and provide employment to the petitioners.. The necessity for ﬁling the writ petition arose in the following background of the case. The petitioner couple had two children. The ﬁrst petitioner underwent Laparoscopic family planning sterilization operation (tubectomy) on 27.03.2000 in Government Maternity Hospital, Koti, Hyderabad. Surgery was performed by fourth respondent. Sterilization operation was a failure. As a result of that ﬁrst petitioner again conceived and gave birth to third child. The petitioners allege that their family income is so meager and bringing of the third child is a diﬃcult task. The situation has arisen due to negligence of fourth respondent in performing sterilization operation. They, therefore, gave a representation to District Collector requesting to provide for ﬁnancial assistance or job to the second petitioner, in vain. Therefore, they filed the instant writ petition. The State through District Medical and Health Oﬃcer, Ranga Reddy District ﬁled a counter aﬃdavit opposing the writ petition. The interesting question that arises in the writ petition is whether a Government Doctor directly and the State which runs Government Hospitals indirectly are liable for negligence of the Doctor in performing family planning sterilization operation, which resulted in the operated woman conceiving and giving birth to an unwanted child or unexpected child. The question, however, is no more res integra. In State of Punjab v Shiv Ram[1] Shiv Ram and his wife ﬁled a suit against State of Punjab and lady Government Surgeon for recovery of damages of Rs.3,00,000/- on account of female child having born to them in spite of wife undergoing tubectomy operation performed by lady surgeon. The Supreme Court noticed that having regard to the option the wife has for termination of pregnancy under the Medical Termination of Pregnancy Act, 1971, the plaintiﬀs could have resorted the same. Having not done so, it must be inferred that the child is not unwanted child. The relevant observations are as under. The methods of sterilization 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 sterilized 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 Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub- section (2) of Section 3 provides- "Explanation II.- 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." And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suﬀered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. Following the above principles laid down by the Supreme Court, this Court is not inclined to accept the writ petition, as the same is devoid of any merits. The Writ Petition is dismissed accordingly. No costs. _____________ (V.V.S.RAO, J) 11.11.2008 vs To 1 The Principal Secretary, State of Andhra Pradesh, Department of Medical & Health, Secretariat Buildings, Hyderabad. 2 The District Collector, Ranga Reddy District at Hyderabad. 3 The District Medical & Health Officer, Ranga Reddy District at Hyderabad. 4 2CCs to G.P For Medical Health and Family Welfare, High Court of A.P, Hyderabad. 5 2CD copies Form-NIC-OGS/WP{RS} [1] AIR 2005 SC 3280