HIGH COURT OF JUDICATURE CHHATTISGARH : BILASPUR SINGLE BENCH HON BLE SHRI S R NAYAK C J WRIT PETiTiON A No.2669 0f 20n2 PETITIONER Smt. Vandana Malviya, aged about 36 years, W/o Shri Vibhash Malviya R/o Ward No.6 Baniyapara, Khairagarh. Distt. Rajnandgaon /~ / f 1 . Vs. I State of Chhattisgarh Through: Secretary Health and Family Planning Department, D.K.S‘ Bhavan, Mantralay, Raipur (C.G.) 2. Distt. Family Plannin Office, Drstrict Hospitai, Rajnandgaon C.G.) Smt. Gayatri Devi Banjare, aged about 29 years, W/o Shri Krishn Kumar, R/o Village Hasod, Thana and Tahsil Jaijaipr, Distt Jangir (Champa) (C.G) PETITRONER a . Vs. RESPONDENTS 1 o The State f Chhattisgarh, Through Secretary, Health and Family Planning Department, D.K.S. Bhawan, Raipur (C.G.) . 2. District Family Pianning Office, District Hospital, Janigir (Champa) ‘ 3. The Collector Janjgir (Champa) 4. Biock tt Ofe tt Hosal Ja (Champa) Present: Shri RS. Baghel, learned counsel for the petitioner in WP. No.2669 of 2002. Shri Parag Kotecha, learned counsel for the petitioner in WP. No.1 037 of 2004. Shri Yashwant Singh, learned Govt. Advocate for the State of C.G and its authorities. ORAL ORDER (Passed on 19a September, 2006) RESPONDENTS g ( WRIT PETITION No.1 037 of 2004 Disric ficr Disric pit njgir “W, in both the cases, tubectomy done on the petitioners-women has resulted in failure. in these writ petitions, they claim that the faiiure was due to negiigence on the part of the State doctors who performed the Surgeries So alleging, the petitioners have claimed compensation/ damages for the loss incurred by them on account of the arrival of unwanted child after the surgeries. (2) ln WP. No.1037 of 2004, on behalf of the respondents, return is filed. in the return it is contended that the methods of sterilization. so far known to the medical sciences are not 100% safe and secure. ln spite of due care and caution exercised by doctors, there is likelihood of failure. lt is also claimed that even after the sterilization, a woman can become pregnant due to natural causes. lt is stated that despite sterilization operations and despite of technical precaution being taken, intrauterine pregnancy occurs subsequently in 0.3% of the cases.‘ (3) in view of the pleadings of the parties, what emerges for decision-making are factual controversies. in the first place, it becomes imperative to know whether the cases of the petitioners could be brought under the expected category of 0.3% of the cases where failures occur or- the petitioners‘ cases could be brought under the other head where the operating Surgeons did not exercise due care and caution expected of' them in performing the surgeries. $econdiy, the actual damage sustained by the petitioners on account of the arrival of unwanted child is a thing to be decided on the basis of substantive evidence that may be adduced before the Court. It is not as if a standard is fixed by the law to assess damage solely on the fact that an unwanted child has arrived in the family. The actual damage that may be sustained by‘each individual mother or > w;\“§\ Ex- father would depend upon various situations and factors. These factual controversies, it is trite, cannot be decided in a summary proceeding under Articie 226 of the Constitution of india on the basis of affidavit and counter affidavit. The dispute has to be resoived only before the competent civii Court after giving full opportunities to the parties to lead evidence and tendering the witnesses of parties to be css-examined by each other. lf the High Court were to under take such iseues for adiudication under Article 226 of the Constitution on the basis of affidavits and counter affidavits, there is every likelihood of failure of justice. ln that View of the matter, l deciine to enterin these writ petitions. Accordingly, both the writ petitions are dismissed, however, reserving liberty to the petitioners to workout their legal remedies before the jurisdictional civil Court, if they are so advised. No costs. sd/_ ,. chie Justice ro ta , f