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Dismissing the appeal, this Court HELD : 1.1. Negligence is a `tort’. Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as `implied undertaking’ by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. [202-F] Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR (1969) SC 128; A.S. Mittal v. State of U.P, AIR (1989) SC 1570; Poonam Verma v. Ashwin Patel, [1996] 4 SCC 332 and Spring Meadows Hospital v. Harjol Ahluwalia, JT (1998) 2 SC 620, relied on. Bolam v.Friern Hospital Management Committee, (1957) 2 All ER 118; Whitehouse v. Jordon, (1981) 1 AH ER 267; Maynard v. West Midlands Regional Health Authority, (1985) 1 AH ER 635 and Sidway v. Bathlem Royal Hospital, (1985) 1 AH ER 643, referred to. 1.2. The Government at the Centre as also at the State level is aware that India is the second most populous country in the world and in order that it enters into an era of prosperity, progress and complete self-depend-ence, it is necessary that the growth of the population be arrested. It is with this end in view that family planning programme has been launched by the Government. The implementation of the programme is directly in the hands of the Government Officers, including Medical Officers involved in the family planning programmes. The Medical Officers entrusted with the implementation or the Family Planning Programme cannot, by their negligent acts in not performing the complete sterilisation operation, sabotage the scheme of national importance. The people of the country who cooperate by offering themselves voluntarily for sterilisation reasonably expect that after undergoing the operation they would be able to avoid further pregnancy and consequent birth of addi-tional child. [206-B-D] 1.3. If the respondent, in these circumstances, had offered herself for complete sterilisation, both the Fallopian Tubes should have been operated upon. The Doctor who performed the operation acted in a most negligent manner.[206-E-F] 2.1. The courts in the different countries are not unanimous in allow-ing the claim for damages for rearing up the unwanted child born out of a failed sterilisation operation. In some cases, the courts refused to allow this claim on the ground of public policy, while in many others, the claim was offset against the benefits derived from having a child and the pleasure in rearing up that child. In many other case, if the sterilisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already had many children, the court allowed the claim for rearing up the child. [210-C-D] Udale v. Bloomsbury Area Health Authority, (1983) 2 All ER 522; Emeh v. Kensington and Chelsea and Westminster Area Health Authority, (1984) 3 All ER 1044; Thake v. Maurice, (1984) 2 All ER 513; Benarr v. Kettering Health Authority, (1988) 138 NLJ 179; Crouchman v. Burke, (1997) 40 BMLR 163; Robinson v. Salford Heath Authority, (1992) 3 Med. LR 270; Allan v. Greater Glasgow Health Board, (1993) 1998 SLT 580; Szekeres v. Robinson, (1986) 715 P 2d 1076; Johnson v. University Hospitals of Cleveland, (1989) 540 NE 2d 1370 (Ohio); Public Health Trust v. Brown, (1980) 388 So 2d 1084; Lovelace Medical Center v. Mendez, (1991) 805 P 2d 603; Administrator, Natal v. Edouard, (1990) 3 SA 581, L v. M, (1979) 2 NZLR 519; CES v. Superclinics (Australia) Pty. Ltd., (1995) Ltd. (1985) 38 NSWLR 47; Mc Farlane & Anr. v. Tayside Health Board, (1999) 4 All ER 961 and Halsbury’s Laws of England 4th Edn. (Reissue) Vol. 12(1), para 896, referred to. 2.2. The principles on the basis of which damages have not been allowed on account of failed sterilisation operation in other countries either on account of public pleasure in having a child being offset against the claim for damages cannot be strictly applied to the Indian conditions so far as poor families are concerned. The public policy here professed by the Government is to control the population and that is why various programmes have been launched to implement the state-sponsored family planning programmes and policies. [210-G-H] 3.1. It is, no doubt, true that the parents are under an obligation to maintain their minor children. This is a moral, apart from a statutory, liability in view of the provisions contained in Section 125 of the Criminal Procedure Code, 1973. It is also a statutory duty on account of Section 20 and 23 of the Hindu Adoptions and Maintenance Act, 1956. [211-C] 3.2. `Maintenance” would obviously include provision for food, cloth-ing, residence, education of the children and medical attendance or treat-ment. [211-F] 3.3 Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But the statutory liability to maintain the children would not operate as a bar in claiming damages on account of tort of medical negligence in not carrying out the sterilisation operation with due care and responsibility. The two situations are based on two different principles. The statutory as well as personal liability of the parents to maintain their children arises on account of the principle that if a person has begotten a child, he is bound to maintain that child. Claim for damages, on the contrary, is based on the principle that if a person has committed civil wrong, he must pay compensation by way of damages to the person wronged. [212-C-D] Mulls’s Principles of Mohammedan Law (19th Edn.), p. 300, referred to. 4. In a country where the population is increasing by the tick of every second on the clock and the Government had taken up the family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilisation opera- tion, the doctor as also the State must be held responsible in damages if the Sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who has chosen to be operated upon for sterilisation. [212-F] State of M.P. v. Asharam, (1997) ACJ 1224 (MP), approved. 5. The contention as to the vicarious liability of the State for the negligence of its officers in performing the sterilisation operation cannot be accepted in view of the law settled by this Court. [213-B] N. Nagendra Rao v. State of A.P., AIR (1994) SC 2663; Common Cause, A Regd. Society v. Union of India, [1999] 6 SCC 667 and Achutrao Haribhau Kodwa v. State of Maharashtra, (1996) ACJ 505, relied on. 6. In the instant case, the respondent was a poor lady who already had seven children. She was already under considerable monetary burden. The unwanted child (girl) born to her has created additional burden for her on account of the negligence of the doctor who performed sterilisation operation upon her and, therefore, she is clearly entitled to claim full damages from the State Government to enable her to bring up the child at least till she attains puberty. [213-B] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2897 of 2000.

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PETITIONER:
STATE OF HARYANA & ORS.

 Vs.

RESPONDENT:
SMT. SANTRA

DATE OF JUDGMENT: 24/04/2000

BENCH:
S.S.Ahmad, D.P.Wadhwa

JUDGMENT:

 S. SAGHIR AHMAD, J. Leave granted. Medical
Negligence plays its game in strange ways. Sometimes it
plays with life; sometimes it gifts an "Unwanted Child" as
in the instant case where the respondent, a poor labourer
woman, who already had many children and had opted for
sterilisation, developed pregnancy and ultimately gave birth
to a female child in spite of sterilisation operation which,
obviously, had failed. Smt. Santra, the victim of the
medical negligence, filed a suit for recovery of Rs.2 lakhs
as damages for medical negligence, which was decreed for a
sum of Rs.54,000/- with interest at the rate of 12 per cent
per annum from the date of institution of the suit till the
payment of the decretal amount. Two appeals were filed
against this decree in the court of District Judge, Gurgaon,
which were disposed of by Addl. District Judge, Gurgaon, by
a common judgment dated 10.5.1999. Both the appeals - one
filed by the State of Haryana and the other by Smt. Santra
were dismissed. The second appeal filed by the State of
Haryana was summarily dismissed by the Punjab & Haryana High
Court on 3.8.1999. It is in these circumstances that the
present Special Leave Petition has been filed in this court.
"Sterilisation Scheme", admittedly, was launched by the
Haryana Govt. and taking advantage of that scheme, Smt.
Santra approached the Chief Medical Officer, Gurgaon, for
her sterilisation in 1988. The sterilisation operation was
performed on her and a certificate to that effect was also
issued to her on 4.2.1988 under the signatures of the
Medical Officer, General Hospital, Gurgaon. Smt. Santra
was assured that full, complete and successful sterilisation
operation had been performed upon her and she would not
conceive a child in future. But despite the operation, she
conceived. When she contacted the Chief Medical Officer and
other Doctors of the General Hospital, Gurgaon, she was
informed that she was not pregnant. Two months later when
the pregnancy became apparent, she again approached those
Doctors who then told her that her sterilisation operation
was not successful. Dr. Sushil Kumar Goyal, who was
examined as DW-2, stated that the operation related only to
the right Fallopian Tube and the left Fallopian Tube was not
touched, which indicates that `complete sterlisation'
operation was not done. She requested for an abortion, but
was advised not to go in for abortion as the same would be
dangerous to her life. She ultimtely gave birth to a female
child. Smt. Santra already had seven children and the
birth of a new child put her to unnecessary burden of
rearing up the child as also all the expenses involved in
the maintenance of that child, including the expenses
towards her clothes and education. It was in these
circumstances that the suit was filed by Smt. Santra which
was contested by the State, who, besides taking up the
technical pleas relating to non-maintainability of the suit
on various grounds, denied in the written statement that
there was any negligence on the part of the Medical Officer
of the General Hospital, Gurgaon. It was contended by the
defendants that the sterlisation operation performed upon
Smt. Santra on 4.2.1988 was done carefully and successfully
and there was no negligence on the part of the Doctor who
performed that operation. It was further pleaded that Smt.
Santra had herself put her thumb impression on a paper
containing a recital that in case the operation was not
successful, she would not claim any damages. It was pleaded
that she was estopped from raising the plea of negligence or
from claiming damages for an unsuccessful sterilisation
operation from the State which, it was further pleaded, was
not liable even vicariously for any lapse on the part of the
Doctor who performed that operation. The trial court as
also the lower appellate court both recorded concurrent
findings of fact that the sterlisation operation performed
upon Smt. Santra was not `complete' as in that operation
only the right Fallopian Tube was operated upon while the
left Tube was left untouched. The courts were of the
opinion that this exhibited negligence on the part of the
Medical Officer who performed the operation. Smt. Santra,
in spite of the unsuccessful operation, was informed that
sterlisation operation was successful and that she would not
conceive any child in future. The plea of estoppel raised
by the defendants was also rejected. The trial court has
recorded the following findings on the question of
negligence:- "The birth of the female child by plaintiff
Smt. Santra after operation for sterilization is not
disputed and the case of the defts is that there was no
negligence and carelessness on the part of the deft. but on
going through the documents placed on the file as well as
testimony of PWs that the medical officer who conducted the
operation has threw the care and caution to the winds and
focussed attention to perform as many as operations as
possible to build record and earn publicity. It is in such
settling that a poor lady obsessed to plan his family, was
negligently operated upon and treated and left in the larch
to suffer agony and burden which he was made to believe was
avoidable. Therefore, the act of the DW 2 Dr. Sushil Kumar
shows that he did not perform his duty to the best of his
ability and with due care and caution and due to the above
said act, the plaintiff has to suffer mental pain and agony
and burden of financial liability." The findings of the
Lower Appellate Court on this question are as under:- "In
the instant case, admittedly, plaintiff Santra was operated
for right tube and not for left tube. Dr. Sushil Kumar
Goel while appearing as DW2 has categorically stated so. He
has specifically stated that Santra, plaintiff was not
traceable. I am of the considered opinion that if Santra,
plaintiff was not operated for left side in that event the
doctor should not have issued certificate of sterilization
to her. The doctors who operated plaintiff Santra should
have advised her to come for second time for her operation
of left side. The plaintiff has placed family sterilization
case card Ex.P2 on the file. The defendant State has
admitted in its written statement that she was successfully
operated on 4.2.88 in General Hospital, Gurgaon. When
admittedly Santra, plaintiff was not operated, as discussed
above, for her left tube in that event issuance of
certificate to her of her sterilization amounts gross
negligence." The High Court, as pointed out above, summarily
dismissed the second appeal. Learned counsel appearing on
behalf of the State of Haryana has contended that the
negligence of the Medical Officer in performing the
unsuccessful sterlisation operation upon Smt. Santra would
not bind the State Govt. and the State Govt. would not be
liable vicariously for any damages to Smt. Santra. It was
also claimed that the expenses awarded for rearing up the
child and for her maintenance could not have been legally
decreed as there was no element of "tort" involved in it nor
had Smt. Santra suffered any loss which could be
compensated in terms of money. Negligence is a `tort'.
Every Doctor who enters into the medical profession has a
duty to act with a reasonable degree of care and skill.
This is what is known as `implied undertaking' by a member
of the medical profession that he would use a fair,
reasonable and competent degree of skill. In Bolam vs.
Friern Hospital Management Committee (1957) 2 All ER 118,
McNair, J. summed up the law as under : "The test is the
standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not
possess the highest expert skill; it is well established
law that it is sufficient if he exercises the ordinary skill
of an ordinary competent man exercising that particular art.
In the case of a medical man, negligence means failure to
act in accordance with the standards of reasonably competent
medical men at the time. There may be one or more perfectly
proper standards, and if he conforms with one of these
proper standards, then he is not negligent." This decision
has since been approved by the House of Lords in Whitehouse
vs. Jordon (1981) 1 All ER 267 (HL); Maynard vs. West
Midlands Regional Health Authority (1985) 1 All ER 635 (HL);
and Sidway vs. Bathlem Royal Hospital (1985) 1 All ER 643
(HL). In two decisions rendered by this Court, namely, Dr.
Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole &
Anr. AIR 1969 SC 128 and A.S. Mittal vs. State of U.P.
AIR 1989 SC 1570, it was laid down that when a Doctor is
consulted by a patient, the former, namely, the Doctor owes
to his patient certain duties which are (a) a duty of care
in deciding whether to undertake the case; (b) a duty of
care in deciding what treatment to give; and (c) a duty of
care in the administration of that treatment. A breach of
any of the above duties may give a cause of action for
negligence and the patient may on that basis recover damages
from his Doctor. In a recent decision in Poonam Verma vs.
Ashwin Patel & Ors. (1996) 4 SCC 332 = AIR 1996 SC 2111
where the question of medical negligence was considered in
the context of treatment of a patient, it was observed as
under : "40. Negligence has many manifestations - it may
be active negligence, collateral negligence, comparative
negligence, concurrent negligence, continued negligence,
criminal negligence, gross negligence, hazardous negligence,
active and passive negligence, wilful or reckless negligence
or Negligence per se, which is defined in Black's Law
Dictionary as under : Negligence per se: Conduct, whether
of action or omission, which may be declared and treated as
negligence without any argument or proof as to the
particular surrounding circumstances, either because it is
in violation of a statute or valid municipal ordinance, or
because it is so palpably opposed to the dictates of common
prudence that it can be said without hesitation or doubt
that no careful person would have been guilty of it. As a
general rule, the violation of a public duty, enjoined by
law for the protection of person or property, so
constitutes." It was also observed that where a person is
guilty of Negligence per se, no further proof is needed. In
M/s Spring Meadows Hospital & Anr. vs. Harjol Ahluwalia
through K.S. Ahluwalia & Anr.JT 1998(2) SC 620, it was
observed as under : "In the case in hand we are dealing
with a problem which centres round the medical ethics and as
such it may be appropriate to notice the broad
responsibilities of such organisations who in the garb of
doing service to the humanity have continued commercial
activities and have been mercilessly extracting money from
helpless patients and their family members and yet do not
provide the necessary services. The influence exerted by a
doctor is unique. The relationship between the doctor and
the patient is not always equally balanced. The attitude of
a patient is poised between trust in the learning of another
and the general distress of one who is in a state of
uncertainty and such ambivalence naturally leads to a sense
of inferiority and it is, therefore, the function of medical
ethics to ensure that the superiority of the doctor is not
abused in any manner. It is a great mistake to think that
doctors and hospitals are easy targets for the dissatisfied
patient. It is indeed very difficult to raise an action of
negligence. Not only there are practical difficulties in
linking the injury sustained with the medical treatment but
also it is still more difficult to establish the standard of
care in medical negligence of which a complaint can be made.
All these factors together with the sheer expense of
bringing a legal action and the denial of legal aid to all
but the poorest operate to limit medical litigation in this
country." It was further observed as under : "In recent
days there has been increasing pressure on hospital
facilities, falling standard of professional competence and
in addition to all, the ever increasing complexity of
therapeutic and diagnostic methods and all this together are
responsible for the medical negligence. That apart there
has been a growing awareness in the public mind to bring the
negligence of such professional doctors to light. Very
often in a claim for compensation arising out of medical
negligence a plea is taken that it is a case of bona fide
mistake which under certain circumstances may be excusable,
but a mistake which would tantamount to negligence cannot be
pardoned. In the former case a court can accept that
ordinary human fallibility precludes the liability while in
the latter the conduct of the defendant is considered to
have gone beyond the bounds of what is expected of the
reasonable skill of a competent doctor." In this judgment,
reliance was placed on the decision of the House of Lords in
Whitehouse vs. Jordan & Anr. (1981) 1 ALL ER 267. Lord
Fraser, while reversing the judgment of Lord Denning
(sitting in the Court of Appeal), observed as under : "The
true position is that an error of judgment may, or may not,
be negligent; it depends on the nature of the error. If it
is one that would not have been made by a reasonably
competent professional man professing to have the standard
and type of skill that the defendant holds himself out as
having, and acting with ordinary care, then it is
negligence. If, on the other hand, it is an error that such
a man, acting with ordinary care, might have made, then it
is not negligence." The principles stated above have to be
kept in view while deciding the issues involved in the
present case. The facts which are not disputed are that
Smt. Santra, respondent, had undergone a Sterilisation
Operation at the General Hospital, Gurgaon, as she already
had seven children and wanted to take advantage of the
scheme of Sterilisation launched by the State Govt. of
Haryana. She underwent the Sterlisation 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 the 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
Sterilisation 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
Sterlisation and not for partial operation. The certificate
issued to her, admittedly, was also in respect of total
Sterlisation Operation. Family Planning is a National
Programme. It is being implemented through the agency of
various Govt. Hospitals and Health Centres and at some
places through the agency of Red Cross. In order that the
National Programme may be successfully completed and the
purpose sought may bear fruit, every body involved in the
implementation of the Programme has to perform his duty in
all earnestness and dedication. The Govt. at the Centre as
also at the State level is aware that India is the second
most-populous country in the world and in order that it
enters into an era of prosperity, progress and complete
self-dependence, it is necessary that the growth of the
population is arrested. It is with this end in view that
family planning programme has been launched by the
Government which has not only endeavoured to bring about an
awakening about the utility of family planning among the
masses but has also attempted to motivate people to take
recourse to family planning through any of the known devices
or sterilisation operation. The Programme is being
implemented through its own agency by adopting various
measures, including the popularisation of contraceptives and
operation for sterilising the male or female. The
implementation of the Programme is thus directly in the
hands of the Govt. officers, including Medical Officers
involved in the family planning programmes. The Medical
Officers entrusted with the implementation of the Family
Planning Programme cannot, by their negligent acts in not
performing the complete sterlisation operation, sabotage the
scheme of national importance. The people of the country
who cooperate by offering themselves voluntarily for
sterilisation reasonably expect that after undergoing the
operation they would be able to avoid further pregnancy and
consequent birth of additional child. If Smt. Santra, in
these circumstances, had offered herself for complete
Sterilisation, both the Fallopian Tubes should have been
operated upon. The Doctor who performed the opeation 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. Who has to bear the
expenses in bringing up the "unwanted child", is the
question which is to be decided by us in this case. The
amount of Rs.54,000/- which has been decreed by the courts
below represents the amount of expenses which Smt. Santra
would have to incur at the rate of Rs.3,000/- per annum in
bringing up the child upto the age of puberty. The domestic
legal scenario on this question appears to be silent, except
one or two stray decisions of the High Courts, to which a
reference shall be made presently. Before coming to those
cases, let us have a look around the Globe. In Halsbury's
Laws of England, Fourth Edition (Re- issue) Vol. 12(1),
while considering the question of "failed sterilisation", it
is stated in para 896 as under : "Failed sterilisation.
Where the defendant's negligent performance of a
sterilisation operation results in the birth of a healthy
child, public policy does not prevent the parents from
recovering damages for the unwanted birth, even though the
child may in fact be wanted by the time of its birth.
Damages are recoverable for personal injuries during the
period leading up to the delivery of the child, and for the
economic loss involved in the expense of losing paid
occupation and the obligation of having to pay for the
upkeep and care of an unwanted child. Damages may include
loss of earnings for the mother, maintaining the child
(taking into account child benefit), and pain and suffering
to the mother." In Udale v. Bloomsbury Area Health
Authority [1983] 2 All ER 522, a woman who had approached
Hospital Authorities for sterilisation was awarded damages
not only for pain and suffering on account of pregnancy
which she developed as a result of failed sterilisation, but
also damages for the disturbance of the family finances,
including the cost of layette and increased accommodation
for the family. The Court, however, did not allow damages
for future cost of the child's upbringing upto the age of 16
years, on a consideration of public policy. The Court held
that the public policy required that the child should not
learn that the Court had declared its life to be a mistake.
The Court further held that the joy of having a child and
the pleasure derived in rearing up that child have to be set
off against the cost in upbringing the child. The doctrine
of public policy, however, was not followed in Emeh v.
Kensington and Chelsea and Westminster Area Health Authority
[1984] 3 All ER 1044 = [1985] QB 1012 and it was held that
there was no rule of public policy which precluded recovery
of damages for pain and suffering for maintaining the child.
So also, in Thake v. Maurice [1984] 2 All ER 513 = [1986]
QB 644, in which a vasectomy was performed on the husband
who was also told, subsequent to the operation, that
contraceptive precautions were not necessary. Still, a
child was born to him and damages for the child's upkeep
upto the seventeenth birthday were awarded, though for an
agreed sum. The Court of Appeal in its judgment since
reported in [1986] 1 All ER 497 = [1986] QB 644, held that
the joy of having a child could be set off against the
trouble and care in the upbringing of the child, but not
against pre-natal pain and distress, for which damages had
to be awarded. In Benarr v. Kettering Health Authority
(1988) 138 NLJ 179, which related to a negligently performed
vasectomy operation, damages were awarded for the future
private education of the child. In Allen v. Bloomsbury
Health Authority [1993] 1 All ER 651, damages were awarded
in the case of negligence in the termination of the
pregnancy and it was held that these damages will include
general damages for pain and discomfort associated with the
pregnancy and birth as also damages for economic loss being
the financial expenses for the unwanted child in order to
feed, clothe and care for and possibility to educate the
child till he becomes an adult. On these considerations, a
general and special damages including the cost of
maintaining the child until the age of 18 were allowed. The
judgment was followed in two other cases, namely, Crouchman
v. Burke (1997) 40 BMLR 163 and Robinson v. Salford Health
Authority [1992] 3 Med LR 270. In a case in Scotland,
namely, Allan v. Greater Glasgow Health Board (1993) 1998
SLT 580, public policy considerations were rejected and cost
of rearing the child was also awarded. In three cases in
the United States of America, namely, Szekeres v. Robinson
(1986) 715 P 2d 1076; Johnson v. University Hospitals of
Cleveland (1989) 540 NE 2d 1370 (Ohio) and Public Health
Trust v. Brown (1980) 388 So 2d 1084, damages were not
allowed for rearing up the child. In the first of these
three cases, the Supreme Court of Nevada refused to award
damages for the birth of an unwanted child even though the
birth was partially attributable to the negligent conduct of
the doctor attempting to prevent the child birth. In the
second case, it was held that the parents could recover only
the damages for the cost of the pregnancy, but not the
expense of rearing an unwanted child. The basis of the
judgment appears to be the public policy that the birth of a
normal, healthy child cannot be treated to be an injury to
the parents. In the third case in which the claim was
preferred by a woman alleging that the sterilisation
operation performed upon her was negligently done which
resulted in pregnancy for a child which she never wanted,
the Supreme Court of Florida was of the opinion that "it was
a matter of universally-shared emotion and sentiment that
the tangible but all-important, incalculable but invaluable
`benefits' of parenthood far outweigh any of the mere
monetary burdens involved." However, in another case arising
in the United States, the Supreme Court of New Mexico in
Lovelace Medical Center v. Mendez (1991) 805 P 2d 603
allowed damages in the form of reasonable expenses to raise
the child to majority as it was of the opinion that the
prime motivation for sterilisation was to conserve family
resources and since it was a failed sterilisation case,
attributable to the negligent failure of Lovelace Medical
Center, the petitioner was entitled to damages. In a South
African case in Administrator, Natal v. Edouard 1990 (3) SA
581, damages were awarded for the cost of maintaining the
child in a case where sterilisation of the wife did not
succeed. It was found in that case that the wife had
submitted for sterilisation for socio-economic reasons and
in that situation the father of the child was held entitled
to recover the cost likely to be incurred for maintaining
the child. In a Newzealand case in L v. M [1979] 2 NZLR
519, the court of appeal refused to allow cost of rearing a
child. In a case from Australia, namely, CES v.
Superclinics (Australia) Pty. Ltd. (1995) 38 NSWLR 47, the
expenses involved in rearing the child were not allowed. In
this case, a woman who was pregnant, claimed damages for
loss of the opportunity to terminate the pregnancy which
Doctors had failed to diagnose. The claim was dismissed by
the trial judge on the ground that abortion would have been
unlawful. Meagher JA discounted the claim altogether on the
ground of public policy, but the other Judge, Kirby A-CJ was
of the opinion that the woman was entitled to damages both
for the pain and suffering which she had to undergo on
account of pregnancy as also for the birth and the cost of
rearing the child. But he thought that it would be better
to offset against the claim of damages, the value of the
benefits which would be derived from the birth and rearing
of the child. He was of the opinion that the matter of
setting off of nett benefits against the nett injury
incurred would depend upon the facts of each case. In the
result, therefore, he agreed with Priestley JA, that the
ordinary expenses of rearing the child should be excluded.
Priestley JA was of the view that, "The point in the present
case is that the plaintiff chose to keep her child. The
anguish of having to make the choice is part of the damage
caused by the negligent breach of duty, but the fact
remains, however, compelling the psychological pressure on
the plaintiff may have been to keep the child, the
opportunity of choice was in my opinion real and the choice
made was voluntary. It was this choice which was the cause,
in my opinion, of the subsequent cost of rearing the child."
From the above, it would be seen that the courts in the
different countries are not unanimous in allowing the claim
for damages for rearing up the unwanted child born out of a
failed sterilisation operation. In some cases, the courts
refused to allow this claim on the ground of public policy,
while in many other, the claim was offset against the
benefits derived from having a child and the pleasure in
rearing up that child. In many other cases, if the
sterlisation was undergone on account of social and economic
reasons, particularly in a situation where the claimant had
already had many children, the court allowed the claim for
rearing up the child. In State of M.P. & Ors. vs.
Asharam, 1997 Accident Claim Journal 1224, the High Court
allowed the damges on account of medical negligence in the
performance of a family planning operation on account of
which a daughter was born after fifteen months of the date
of operation. No other decision of any High Court has come
to our notice where damages were awarded on account of
failed sterilisation operation. Ours is a developing
country where majority of the people live below the poverty
line. On account of the ever-increasing population, the
country is almost at the saturation point so far as its
resources are concerned. The principles on the basis of
which damages have not been allowed on account of failed
sterilisation operation in other countries either on account
of public policy or on account of pleasure in having a child
being offset against the claim for damages cannot be
strictly applied to the Indian conditions so far as poor
families are concerned. The public policy here professed by
the Government is to control the population and that is why
various programmes have been launched to implement the
state-sponsored family planning programmes and policies.
Damages for the birth of an unwanted child may not be of any
value for those who are already living in affluent
conditions but those who live below the poverty line or who
belong to the labour class who earn their livelihood on
daily basis by taking up the job of an ordinary labour,
cannot be denied the claim for damages on account of medical
negligence. It is, no doubt, true that the parents are
under an obligation to maintain their minor children. This
is a moral, apart from a statutory, liability in view of the
provisions contained in Section 125 of the Code of Criminal
Procedure. It is also a statutory liability on account of
Section 20 of the Hindu Adoptions and Maintenance Act which
provides as under:- "20. (1) Subject to the provisions of
this section a Hindu is bound, during his or her lifetime,
to maintain his or her legitimate children and his or her
aged or infirm parents. (2) A legitimate or illegitimate
child may claim maintenance from his or her father or mother
so long as the child is a minor. (3) The obligation of a
person to maintain his or her aged or infirm parent or a
daughter who is unmarried extends in so far as the parent or
the unmarried daughter, as the case may be, is unable to
maintain himself or herself out of his or her own earning or
property. Explanation.- In this section "parent" includes a
childless step-mother." "Maintenance" would obviously
include provision for food, clothing, residence, education
of the children and medical attendance or treatment. The
obligation to maintain besides being statutory in nature is
also personal in the sense that it arises from the very
existence of the relationship between parent and the child.
The obligation is absolute in terms and does not depend on
the means of the father or the mother. Section 22 of the
Act sets out the principles for computing the amount of
maintenance. Sub-section (2) of Section 23 provides that in
determining the amount of maintenance, to be awarded to
children, wife or aged or infirm parents, regard shall be
had to the position and status of the parties; the
reasonable wants of the claimant; if the claimant was
living separately, whether the claimant was justified in
doing so; the value of the claimant's property and any
income derived from such property, or from the claimant's
own earnings or from any other source and the number of
persons entitled to maintenance under the Act. But we are
not concerned with these factors in the instant case. A
reference to Section 23 of the Hindu Adoptions and
Maintenance Act has been made only to indicate that a Hindu
father or a Hindu mother is under a statutory obligation to
provide maintenace to their children. Similarly, under the
Mohammedan Law, a father is bound to maintain his sons until
they have attained the age of puberty. He is also bound to
maintain his daughters until they are married. [See:
Mulla's Principles of Mohammedan Law (19th Edn.) Page 300].
But the statutory liability to maintain the children would
not operate as a bar in claiming damages on account of tort
of medical negligence in not carrying out the sterilisation
operation with due care and responsibility. The two
situations are based on two different principles. The
statutory as well as personal liability of the parents to
maintain their children arises on account of the principles
that if a person has begotten a child, he is bound to
maintain that child. Claim for damages, on the contrary, is
based on the principle that if a person has committed civil
wrong, he must pay compensation by way of damages to the
person wronged. Under every system of law governing the
patriarchal society, father being a natural guardian of the
child, is under moral liability to look after and maintain
the child till he attains adulthood. Having regard to the
above discussion, we are positively of the view that in a
country where the population is increasing by the tick of
every second on the clock and the Government had taken up
the family planning as an important programme for the
implementation of which it had created mass awakening for
the use of various devices including sterilisation
operation, the doctor as also the State must be held
responsible in damages if the sterilisation operation
performed by him is a failure on account of his negligence,
which is directly responsible for another birth in the
family, creating additional economic burden on the person
who had chosen to be operated upon for sterilisation. The
contention as to the vicarious liability of the State for
the negligence of its officers in performing the
sterilisation operation cannot be accepted in view of the
law settled by this Court in N. Nagendra Rao & Co. vs.
State of A.P., AIR 1994 SC 2663 = (1994) 6 SCC 205; Common
Cause, A Regd. Society vs. Union of India & Ors. (1999) 6
SCC 667 = AIR 1999 SC 2979 and Achutrao Haribhau Khodwa &
Ors. vs. State of Maharashtra & Ors. 1996 ACJ 505. The
last case, which related to the fallout of a sterilisation
operation, deals, like the two previous cases, with the
question of vicarious liability of the State on account of
medical negligence of a doctor in a Govt. hospital. The
theory of sovereign immunity was rejected. Smt. Santra, as
already stated above, was a poor lady who already had seven
children. She was already under considerable monetary
burden. The unwanted child (girl) born to her has created
additional burden for her on account of the negligence of
the doctor who performed sterilisation operation upon her
and, therefore, she is clearly entitled to claim full
damages from the State Govt. to enable her to bring up the
child at least till she attains puberty. Having regard to
the above facts, we find no merit in this appeal which is
dismissed but without any order as to costs.

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