\\ IN THE HIGH ceURr OF'JUDICATURE cmm1ggm1gr BILASPU w.P. No. Q’M‘ OF 2003 QM (H , PETITIONER :- SMT./RAMBHA BAI AGED ABGUT 35 YEARS E. OF SHRIRAM SATNAMI OCCUPATION LABOURBR, R/o VILLAGE KANDEL, TAHSIL A‘ND DISTRICT- DHAMTABI (c.G.) //VERSU_S_// STATE OF CHHATTVISG‘ARH THROUGH THE SEWTARY MINISTRY OF EALTH AND FAMILY WELFARE DAU KALYAN SIN‘GH BHAVAN; RAIPUR (C.G.) COLIESCTOR DHAMTARI, DEmICT- DHAMTARIC.G.) CPEEF MEDICAL AND EEALTH OWICER’ DHAMTARI TAHSIL AND DISTRICT DHAMTARI (CAL) BLOCK MEDICAL OFFlcuR, PRIMARY HéaALTH CENTRE GUJRA DISTRICT DHAMTARI (C.G.) M’FmlCAL OFFICER MINI P.H. C. KANDEL DIS RICT-EA DHAMTARI (C,f6r’ PB ETITIN UNDEER ARTICLE 9?6 AND 227 OF iE CONSTITUTION OF INDIA ; O THE ISSUANCE OF SUITABLE WIT DIRECTION AND PASSING APPROPRIATE; ORDEEJIND GIVEVG [V'VSAR INSTRUCTION; ‘ ‘ ( ' , FR Y (Writ Petition under Article 226 & 227 of the Constitution of indie) Single Bench : Hon'ble Shri Satish K. Agnihotri. J. Present :- Shri CR. Sahu. Advocate for the petitioner. , Shri Arun Sao. Government Advocate for the State. ORDER (Passed on this 13“ day cf December, 201 1) 1. By this petition. the petitioner seeks a direction to the respondents to make payment of Rs. 2.00.000l-. as compensation for maintenance of her children. who were born on failure of family planning sterilization operation undergone by the petitioner. 2. Learned counsel appearing for the petitioner submits that on 11.09.1995. the petitioner had undergone family planning sterilization operation. as is evident from Annexure-A at Primary Health Center. Gujara. Thereafter. on 19.02.1999 (Annexure B). she gave birth to a male child and again on 918.03.2002 (Annexure C). she gave birth to a female child. 3. According to the petitioner. before the family planning operation. she was already having fivechildren (3 male & 2 female). Learned counsel further submits that since it was a case of negligent on the part of the concerned Doctors. the respondent State is under an obligation to grant compensation i to the petitioner and maintenance of the children. who were born after K performing the family planning sterilization operation. ~‘ 4. On the other hand. learned counsel appearing for the State submits that 5 ‘ V neither the petitioner is entitled to compensation nor the State is under an obtigation to grant maintenance to the children. who were born after family planning operation. was done. 5. The sterilization operation was done oh 11.09.1995 (Annexure A). ' l ‘ \ Thereafter. after a period of four years: the first child was born on /3 JIM) HIGH COURT OF CHHATTISGARH : BILASPUR WR!T PETiTiON NO. 676 OF 2003 go PETlTlONER Smt. Rambha Bai $ Versus RESPONDENTS State (Sf Chhattisgarh & Others M m§§ ‘ “‘ ; ) ¢B§\ ‘ : 19 02 1999 (Annexure B) and the second child was born on 18.03.2002 ., (Annexure'C). The petitioner has failed to estabtish that on account of any negligence or dereliction of duty on the part of the Doctor. who performed sterilization operation. two children were born after the operation. 6. The petitioner had undergone sterilization operation on 11.09.1995. The hrst child was born on 19.02.1999. The petitioner has not raised any objection with regard to failure of sterilization operation on account of negligence on the part of the Doctor. Thereatter. the second child was also . born after about a period of three years. The petitioner tiled the instant writ petition on 07.02.2003. without establishing the case that the subsequent birth of children was on account of any mishandling. negligence o'r delinquency on the part of the Surgeon. who had performed the operation. I\W \X Thus. for want of sutticient materials and without proving the negligence on s the part of the Surgeon. no relief can be granted. lt has been held by the Supreme Court also that in sterilization operation. there is no 100% certainty and for that the Doctor cannot be liable. 7. lt is atso not pointed out by the petitioner that there is any condition or provisions under the law to fasten the liability in such cases on the Doctor or theSta’te Government in case of failure of sterilization operation. The Slmreme Court in Martin F. D’s-u_a v. Mohd. .tshfaq' observed as under : .. "r... pa K “53. In state of Haryana v. Raj Rani. it was held that ifa child is bom to a woman even ait‘er sire had undergone a‘ sterilization operation by a surgeon. ‘the . doctor was not liable because there / cannot be a 1'0096 certainty that no child ‘ will be born after a sterilization operation. The Court idiom/ed the eariier View of another three judge Bench in State of Punjab v. Shiv Ram. These decisions will be deemed to have overruled the two Jndge Bench decision in state of Haryana v. Santra in which it was held that if a child is bom alter the stehlization operation the surgeon will be liable for "mirgence . "Va. u leoo9\t35¢c 1 ’ \\ 9. The identical issue came up for consideration beiore this Court in Sonau Pém Srwavanshi & Amther v. StaL of Chhatti-sgam & Othersz, wherein, this Couii held as under : “The ailegaiion with regard to the negligence of the doctor cannot be decided in writ jurisdiction as it requires proper investigation. The petitioner may appreech the proper forum that may be avaiiable under provisions of iaw, ii’so advised, for the purpose of establishing negiigence of the doctor” aw to ’10. In View of the above analysis and applying well settled principles of l the facts of the case on hand. there is no merit in this petition and asvsuch. // Sd/— the same is dismissed. 11. No order asto costs. l sau'sh K. Agnihotri ‘ Judge AShoK / 2 WP. No.1744 of 2003 decided on 19.08.2009 / f \