# Kismat & Anr v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-23
- **Case number:** Misc. Bench No. 9502 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kismat-anr-v-state-of-u-p-ors-43093
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Petition
claiming
compensation-failure
of
vasectomy operation- unwanted child
birth-unless negligence of doctor provedno such claim can be entertained under
writ
jurisdiction-moreover
even
after
noticing
pregnancy-no
positive
steps
taken to remove rather decided to give
birth-itself denotes desirable deliverycase law relied by petitioner based on
civil court decree-can not be basis to
award compensation-petition dismissed
with liberty to approach civil court.

Held: Para-9
Whether, as a matter of fact, the
operating surgeon had exercised due and
reasonable care while performing the
surgery or conversely whether, as the
claimant suggests, there was negligence
on the part of the surgeon in performing
the surgery, cannot be determined in
writ proceedings under Article 226 of the
Constitution.
These
are
matters
of
evidence which, in fact, can be resolved
only on the basis of material which is
produced in the course of the trial of a
suit. Santra (supra), in fact, was a case
which originated in a suit before the trial
Court as was the subsequent decision of
the Supreme Court in Shiv Ram (supra).
The remedy under Article 226 of the
Constitution can, in appropriate cases,
be availed of for remedying a violation of
the fundamental rights, such as the right
to life and personal liberty under Article
21 of the Constitution. Where, however,
a claim of the nature, such as the
present, intrinsically depends upon proof
of an act of medical negligence, such a
claim cannot be determined in exercise
of writ jurisdiction under Article 226 of
the Constitution. A suit for the recovery
of the amount of a claim of that nature
would be dealt with under the provisions
of Section 9 of the Code of Civil
Procedure, 1908.

Case Law discussed:
(2000) 5 SCC 182; (2005) 7 SCC 1.

## Text

3 All]. Kismat & Anr. Vs. State of U.P. & Ors.
1107
four corners of the Constitution while
dealing with such matters. Application
moved by the petitioner be considered
expeditiously.

21 Subject to above and with liberty
to respondents and adjudication of dispute
by District Magistrate expeditiously, the
writ petition is disposed of finally.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Misc. Bench No. 9502 of 2014

Kismat & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ramendra Kumar Misra

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Petition
claiming
compensation-failure
of
vasectomy operation- unwanted child
birth-unless negligence of doctor provedno such claim can be entertained under
writ
jurisdiction-moreover
even
after
noticing
pregnancy-no
positive
steps
taken to remove rather decided to give
birth-itself denotes desirable deliverycase law relied by petitioner based on
civil court decree-can not be basis to
award compensation-petition dismissed
with liberty to approach civil court.

Held: Para-9
Whether, as a matter of fact, the
operating surgeon had exercised due and
reasonable care while performing the
surgery or conversely whether, as the
claimant suggests, there was negligence
on the part of the surgeon in performing
the surgery, cannot be determined in
writ proceedings under Article 226 of the
Constitution.
These
are
matters
of
evidence which, in fact, can be resolved
only on the basis of material which is
produced in the course of the trial of a
suit. Santra (supra), in fact, was a case
which originated in a suit before the trial
Court as was the subsequent decision of
the Supreme Court in Shiv Ram (supra).
The remedy under Article 226 of the
Constitution can, in appropriate cases,
be availed of for remedying a violation of
the fundamental rights, such as the right
to life and personal liberty under Article
21 of the Constitution. Where, however,
a claim of the nature, such as the
present, intrinsically depends upon proof
of an act of medical negligence, such a
claim cannot be determined in exercise
of writ jurisdiction under Article 226 of
the Constitution. A suit for the recovery
of the amount of a claim of that nature
would be dealt with under the provisions
of Section 9 of the Code of Civil
Procedure, 1908.

Case Law discussed:
(2000) 5 SCC 182; (2005) 7 SCC 1.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. The first petitioner has moved this
Court in its writ jurisdiction under Article
226
of
the
Constitution,
seeking
compensation of Rs.5 lacs for a failed
vasectomy operation, claiming this amount
to be necessary for the education and
survival of the second petitioner, who is the
child born subsequent to the surgery.

2. The marriage of the first
petitioner
is
stated
to
have
been
solemnized sixteen years ago. The first
petitioner and his spouse have five
children of whom the last was stated to
have been adopted. The first petitioner
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
was operated upon by the district hospital,
Hardoi on 27 February 2009 by the fourth
respondent. The case is that, despite the
surgery, the spouse of the first petitioner
became pregnant after a few months of
the date of the surgery and the second
petitioner was born. An amount of
Rs.30,000/- was admittedly paid to the
first petitioner and his spouse on 29 May
2013 for the failed vasectomy surgery
under and pursuant to an insurance policy
of ICICI Lombard General Insurance Co.
Ltd. The insurance policy has been
obtained by the State and a compensation
of Rs.30,000/- was paid.

3. The petitioner has relied upon a
decision of the Supreme Court in State of
Haryana vs. Santra (Smt.)1 in support of
the claim for compensation. That was a
case where a patient had been admitted to
a Government Hospital for a sterilization
operation. A child was born despite the
surgery following which, a suit for
damages
was
filed
for
medical
negligence. The trial Court decreed the
claim for an amount of Rs.54,000/-
together with interest @ 12% per annum
against which, an appeal before the
District Court and thereafter a Second
Appeal before the High Court were
dismissed. The facts of the case would
indicate that there was a specific finding
of negligence on the part of the surgeon in
performing the surgery inasmuch as
though the patient had sought a complete
sterilization, one of the Fallopian tubes
had not been operated upon in the course
of the surgery. These facts are clear from
the findings recorded in paragraphs 18
and 20 of the judgment of the Supreme
Court, which are as follows:

"18. The facts which are not disputed
are that Smt. Santra, respondent, had
undergone a sterilization operation at the
General Hospital, Gurgaon, as she already
had seven children and wanted to take
advantage of the scheme of sterilization
launched by the State Government of
Haryana. She underwent the sterilization
operation and she was issued a certificate
that her operation was successful. She
was assured that she would not conceive a
child in future. But, as luck would have it,
she conceived and ultimately gave birth to
a female child. The explanation offered
by the officers of the appellant State who
were defendants in the suit, was that at the
time of the sterilization operation, only
the right Fallopian tube was operated
upon and the left Fallopian tube was left
untouched. This explanation was rejected
by the courts below and they were of the
opinion, and rightly so, that Smt. Santra
had gone to the hospital for complete and
total sterilization and not for partial
operation. The certificate issued to her,
admittedly, was also in respect of total
sterilization operation.

20.
If
Smt.
Santra,
in
these
circumstances, had offered herself for
complete sterilization, both the Fallopian
tubes should have been operated upon.
The doctor who performed the operation
acted in a most negligent manner as the
possibility of conception by Smt. Santra
was not completely ruled out as her left
Fallopian tube was not touched. Smt.
Santra did conceive and gave birth to an
unwanted child."

4. The decision in Santra (supra) did
not arise out of the exercise of the writ
jurisdiction under Article 226 of the
Constitution, but arose out of a decree of
the trial Court in a regular civil suit.

5. The decision in Santra (supra)
was rendered by a Bench of two learned
3 All]. Kismat & Anr. Vs. State of U.P. & Ors.
1109
Judges of the Supreme Court and
subsequently, it was considered in a
decision of three learned Judges of the
Supreme Court in State of Punjab v. Shiv
Ram2. That was also a case where a
decree for compensation was passed by
the trial Court following the birth of a
child, despite a tubectomy operation. The
decree was upheld by the first appellate
Court, while the second appeal was
dismissed by the High Court. The
Supreme Court observed, after reviewing
the medical literature on the subject that
there is, in a sterilization operation, no
guarantee of a successful operation in
every case and authoritative medical
learning on the subject recognizes the
possibility of failure depending upon the
technique which is chosen. This is evident
from the observations contained in
paragraph 17 of the judgment, which read
as follows:

"17. It is thus clear that there are
several alternative methods of female
sterilization
operation
which
are
recognized by medical science of today.
Some of them are more popular because
of being less complicated, requiring
minimal
body
invasion
and
least
confinement in the hospital. However,
none is foolproof and no prevalent
method of sterilization guarantees 100%
success. The causes for failure can well be
attributable to the natural functioning of
the human body and not necessarily
attributable to any failure on the part of
the surgeon. Authoritative textbooks on
gynaecology and empirical researches
which have been carried out recognise the
failure rate of 0.3% to 7% depending on
the technique chosen out of the several
recognised and accepted ones. The
technique which may be foolproof is the
removal of the uterus itself but that is not
considered advisable. It may be resorted
to
only
when
such
procedure
is
considered necessary to be performed for
purposes
other
than
merely
family
planning."

6. In this state of medical knowledge
and medical science, the Supreme Court
observed as follows:

"25. We are, therefore, clearly of the
opinion that merely because a woman
having undergone a sterilization operation
became pregnant and delivered a child,
the operating surgeon or his employer
cannot be held liable for compensation on
account of unwanted pregnancy or
unwanted child. The claim in tort can be
sustained only if there was negligence on
the part of the surgeon in performing the
surgery. The proof of negligence shall
have to satisfy Bolam's test. So also, the
surgeon cannot be held liable in contract
unless the plaintiff alleges and proves that
the surgeon had assured 100% exclusion
of pregnancy after the surgery and was
only on the basis of such assurance that
the plaintiff was persuaded to undergo
surgery. As noted in various decisions
which we have referred to hereinabove,
ordinarily a surgeon does not offer such
guarantee."

7. Hence, the view of the Supreme
Court was that the cause of action for
claiming compensation in a case of a
failed sterilization operation would arise
on account of negligence of the surgeon
and not on account of childbirth. Failure
due to natural causes would not provide
any ground for claim. It is for the woman
who has conceived the child to opt or not
to opt for medical termination of
pregnancy.
Having
known
of
the
pregnancy in spite of having undergone
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
the 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, the Supreme Court held, be
claimed.

8. While allowing the appeal, the
Supreme Court however, observed that
the State Government should contemplate
devising welfare schemes or take up the
matter with Insurance Companies for
obtaining appropriate insurance policies
to provide coverage of such claims where
a child is born of a woman, despite having
undergone
a
successful
sterilization
operation. It is in pursuance of these
observations that it would appear that a
claim of the present nature has been
covered under the insurance policies
obtained by the State pursuant to which,
an amount of Rs.30,000/- has already
been paid to claimant in the present case
by way of compensation.

9. Whether, as a matter of fact, the
operating surgeon had exercised due and
reasonable care while performing the
surgery or conversely whether, as the
claimant suggests, there was negligence
on the part of the surgeon in performing
the surgery, cannot be determined in writ
proceedings under Article 226 of the
Constitution.
These
are
matters
of
evidence which, in fact, can be resolved
only on the basis of material which is
produced in the course of the trial of a
suit. Santra (supra), in fact, was a case
which originated in a suit before the trial
Court as was the subsequent decision of
the Supreme Court in Shiv Ram (supra).
The remedy under Article 226 of the
Constitution can, in appropriate cases, be
availed of for remedying a violation of the
fundamental rights, such as the right to
life and personal liberty under Article 21
of the Constitution. Where, however, a
claim of the nature, such as the present,
intrinsically depends upon proof of an act
of medical negligence, such a claim
cannot be determined in exercise of writ
jurisdiction under Article 226 of the
Constitution. A suit for the recovery of
the amount of a claim of that nature
would be dealt with under the provisions
of Section 9 of the Code of Civil
Procedure, 1908.

10. Consequently, we decline to
entertain the petition only on the ground
that disputed questions of fact, which
would arise in these proceedings, would
have to be adjudicated upon by the trial
Court in a regular civil suit.

11. Leaving it open to the petitioner
to pursue the ordinary civil remedy
available in law, we dismiss the petition.
However, there shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Misc Bench No. 9514 of 2014

Ram Sijore [PIL] ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nripendra Mishra

Counsel for the Respondents:
C.S.C.