WRIT PETITION NO 676 OF 2003
Smt Rambha Bai
State of Chhattisgarh & Others ...Respondents
! Shri C R Sahu Advocate for the petitioner
^ Shri Arun Sao Government Advocate for the State
CORAM: Honble Shri Satish K Agnihotri J
Dated : 13/12/2011
(Passed on this 13th day of December, 2011) (Writ Petition under Article 226 & 227 of the Constitution of India)
1. By this petition, the petitioner seeks a direction to
the respondents to make payment of Rs. 2,00,000/-, 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 18.03.2002 (Annexure C), she gave birth to a female child.
3. According to the petitioner, before the family planning operation, she was already having five children (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 to the petitioner and maintenance of the children, who were born after performing the family planning sterilization operation.
4. On the other hand, learned counsel appearing for the State submits that neither the petitioner is entitled to compensation nor the State is under an obligation to grant maintenance to the children, who were born after family planning operation, was done.
5. The sterilization operation was done on 11.09.1995 (Annexure A). Thereafter, after a period of four years, the first child was born on 19.02.1999 (Annexure B) and the second child was born on 18.03.2002 (Annexure C). The petitioner has failed to establish 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 first 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. Thereafter, the second child was also born after about a period of three years. The petitioner filed 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 or delinquency on the part of the Surgeon, who had performed the operation. Thus, for want of sufficient materials and without proving the negligence on the part of the Surgeon, no relief can be granted. It 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. It is also 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 the State Government in case of failure of sterilization operation.
8. The Supreme Court in Martin F. D'Souza v. Mohd. Ishfaq1 observed as under :
"53. In State of Haryana v. Raj Rani, it was held that if
a child is born to a woman
even after she had undergone a
sterilization operation by a
surgeon, the doctor was not
liable because there cannot be
a 100% certainty that no child
will be born after a
sterilization operation. The
Court followed the earlier
view of another three judge
Bench in State of Punjab v.
Shiv Ram. These decisions will
be deemed to have overruled
the two Judge Bench decision
in which it was held that if a
child is born after the
sterilization operation the
surgeon will be liable for
9. The identical issue came up for consideration before
this Court in Sonau Ram Suryavanshi & Another v. State of
Chhattisgarh & Others2, wherein, this Court held as under :
"The allegation with regard to the negligence of the doctor
cannot be decided in writ
jurisdiction as it requires
proper investigation. The
petitioner may approach the
proper forum that may be
available under provisions of
law, if so advised, for the
purpose of establishing
negligence of the doctor"
10. In view of the above analysis and applying well settled
principles of law to the facts of the case on hand, there is
no merit in this petition and as such, the same is
11. No order asto costs.JUDGE