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CASE NO.: Appeal (civil)  5128 of 2002

PETITIONER: State of Punjab                                              

RESPONDENT: Shiv Ram  & Ors.                                           

DATE OF JUDGMENT: 25/08/2005

BENCH: CJI R.C. LAHOTI,C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT: J  U  D  G  M  E  N  T

R.C. Lahoti, CJI

The plaintiffs-respondents, respectively husband and wife,  filed a suit against the State of Punjab, the appellant before us  and a lady surgeon who was in the State Government’s  employment at the relevant time, for recovery of damages to the  tune of Rs.3,00,000/- on account of a female child having been  born to them in spite of the wife-respondent No. 2 having  undergone a tubectomy operation performed by the lady  surgeon.  According to the plaintiffs-respondents, they already  had a son and two daughters from the wed-lock lasting over 17  years.  In response to a publicity campaign carried out by the  Family Welfare Department of the appellant-State, respondent  No. 2 with the consent of respondent No.1, underwent a  sterilization operation on 1.8.1984.  A certificate in this regard  bearing mark of identification No. 505, duly signed by the lady  surgeon who performed the said surgery, was issued to her.   She was given a cash award of Rs.150/- as an incentive for the  operation.  On 4.10.1991, respondent No. 2 gave birth to a  female child.  After serving a notice under Section 80  of the  Code of Civil Procedure, a suit for recovery of damages was filed  on 15.5.92 attributing the birth of the child to carelessness and  negligence of the lady surgeon.  The plaint alleged inter alia that  the respondents considered abortion to be a sin and that is why  after knowing of the conception they did not opt for abortion.

The State was impleaded as defendant No. 1 and the lady  surgeon who performed the surgery was impleaded as defendant  No.2.

The defendants filed a joint written statement. It was  submitted that there was no negligence or carelessness in the  performance of the surgery.  It is stated in authoritative text  books of medical science that pregnancy occurring after  sterilization may be attributable to natural failure.   It was also  submitted that the plaintiffs having learnt of the unwanted  pregnancy, should have sought medical opinion and opted for  medical termination of pregnancy within 20 weeks which is  permissible and legal.

The parties went to trial. The plaintiff No.1, that is the  husband, deposed on oath to substantiate the plaint averments.  The wife, plaintiff No.2, did not appear in the witness box.  On  behalf of the defendants, one Dr. Sham Lal Thukral, Medical  Officer, Civil Hospital, Bhatinda appeared to depose that medical

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science recognises failure of sterilization operations to the extent  of 0.3% to 3% and the consequences of such failure can  promptly be taken care of by the pregnant woman by  undergoing abortion. The deponent produced five extracts  (marked as Exhibits D2 to D6) from different textbooks of  gynaecology in support of his statement. Original books were  produced for the perusal of the court and returned. The trial  court and the first appellate court have not doubted the  correctness of the expert medical opinion as expressed in the  textbooks cited before the Court. However, the two courts have  proceeded on the reasoning that on the birth of a child to a  woman who was allured into undergoing sterilization operation  by the State in pursuance of its Family Planning Schemes, the  State was liable to compensate for the consequences of the  operation having failed. The suit was decreed for Rs.50,000/-  with interest and costs.  The decree for compensation passed by  the trial court has been upheld by the first appellate court.  The  second appeal preferred by the State has been summarily  dismissed.

At the very outset, the learned Additional Advocate  General appearing for the State of Punjab submitted that the  appellant-State was not very serious about denying the payment  of Rs.50,000/- to the plaintiffs-respondents as they are poor  persons, but the State was certainly interested in having the  legal issue resolved.  He further submitted that the filing of such   suits in the civil court or complaints  before the Consumer Fora,  are on an increase and decrees are being passed against the  State without any basis in law and, therefore, the position of law  needs to be clarified and settled.

Very recently, this Court has dealt with the issues of   medical negligence and laid down principles on which the liability  of a medical professional is determined generally and in the field  of criminal law in particular.  Reference may be had to Jacob  Mathew v. State of Punjab & Anr.  (2005) 6 SCC 1.  The  Court has approved the test as laid down in Bolam v. Friern  Hospital Management Committee, [1957] 1 W.L.R. 582,  popularly known as Bolam’s Test, in its applicability to India.   The relevant principles culled out from the case of Jacob  Mathew (supra) read as under:

(1)     Negligence is the  breach of a duty caused by omission to  do something which a reasonable man guided by those  considerations which ordinarily regulate the conduct of  human affairs would do, or doing something which a  prudent and reasonable man would not do.  The definition  of negligence as  given in Law of Torts, Ratanlal & Dhirajlal  (edited by Justice G.P. Singh), referred to hereinabove,  holds good.  Negligence becomes actionable on account of  injury resulting from the act or omission amounting to  negligence attributable to the person sued. The essential  components of negligence are three: ’duty’, ’breach’ and  ’resulting damage’.  

(2)     A simple lack of care, an error of judgment or an accident,  is not proof of negligence on the part of a medical  professional. So long as a doctor follows a practice  acceptable to the medical profession of that day, he cannot  be held liable for negligence merely because a better  alternative course or method of treatment was also  available or simply because a more skilled doctor would  not have chosen to follow or resort to that practice or  procedure which the accused followed. When it comes to

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the failure of taking precautions what has to be seen is  whether those precautions were taken which the ordinary  experience of men has found to be sufficient; a failure to  use special or extraordinary precautions which might have  prevented the particular happening cannot be the standard  for judging the alleged negligence.

(3)      A professional may be held liable for negligence on one of  the two findings: either he was not possessed of the  requisite skill which he professed to have possessed, or, he  did not exercise, with reasonable competence in the given  case, the skill which he did possess.  The standard to be  applied for judging, whether the person charged has been  negligent or not, would be that of an ordinary competent  person exercising ordinary skill in that profession.  It is not  possible for every professional to possess the highest level  of expertise or skills in that branch which he practices.  A  highly skilled professional may be possessed of better  qualities, but that cannot be made the basis or the  yardstick for judging the performance of the professional  proceeded against on indictment of negligence.

This Court has further held in Jacob Mathew’s case  (supra):- "Accident during the course of medical or  surgical treatment has a wider meaning.   Ordinarily, an accident means an unintended  and unforeseen injurious occurrence;  something that does not occur in the usual  course of events or that could not be  reasonably anticipated (See, Black’s Law  Dictionary, 7th Edition).  Care has to be taken  to see that the result of an accident which is  exculpatory may not persuade the human mind  to confuse it with the consequence of  negligence."

The plaintiffs have not alleged that the lady surgeon who  performed the sterilization operation was not competent to  perform the surgery and yet ventured into doing it.  It is neither  the case of the plaintiffs, nor has any finding been arrived at by  any of the courts below that the lady surgeon was negligent in  performing  the surgery.  The present one is not a case where  the surgeon who performed the surgery has committed breach  of any duty cast on her as a surgeon.  The surgery was  performed by a technique known and recognized by  medical  science. It is a pure and simple case of sterilization operation  having failed though duly performed. The learned Additional  Advocate General has also very fairly not disputed the vicarious  liability of the State, if only its employee doctor is found to have  performed the surgery negligently and if the unwanted  pregnancy thereafter is attributable to such negligent act or  omission on the part of the employee doctor of the State.  

The learned Advocate General has brought to our notice a  number of textbooks on gynaecology. We refer to some of them.

In Jeffcoate’s Principles of Gynaecology,  revised by  V.R. Tindall, MSc.,MD,FRCSE, FRCOG, Professor of Obstetrics  and Gynaecology, University of Manchester (Fifth Edition)  published by Butterworth Heinemann, the following technique of  female sterilization are stated:

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"Female Sterilization   Techniques

1.      Radiotherapy

A menopausal dose of external beam  irradiation to the ovaries is only attractive in so  far that they sterilize without involving the  woman in an operation.  Their disadvantages  (as stated at pages 93 and 528) are such that  they are rarely used except in older women  who are seriously ill.

2.      Removal of the ovaries

This sterilizes (provided an accessory ovary is  not overlooked) but is very rarely indicated as  it often results in severe climacteric symptoms.

3.      Removal of the uterus

This is effective but involves an unnecessarily  major operation and destroys menstrual as  well as reproductive function.  Its chief place is  in those cases where the need for sterilization  is associated with disease in the uterus or  cervix. But, to preclude further childbearing, it  is commonly carried out as part of another  operation.  Examples are vaginal hysterectomy  as part of the cure of prolapse, and caesarean  hysterectomy.  The latter is sometimes  advocated, in preference to caesarean section  and tubal ligation, on the grounds that it  prevents future uterine disease as well as  conception.  Those women who have ethical  objections to tubal ligation may well prefer to  have a ’scarred uterus’ removed.  Except in  special circumstances, however, caesarean  hysterectomy is not justified as a sterilization  procedure.

       As an elective sterilization procedure for  non-pregnant women, some gynaecologists  advocate hysterectomy (preferably vaginal) in  preference to tubal resection. This is because it  removes the possibility of the future  development of uterine disease such as  carcinoma of the cervix and eliminates the  chance of the woman suffering menstrual and  other upsets which sometimes follow less  radical procedures. Hysterectomy, however,  carries a much higher immediate morbidity  rate than does surgical tubal resection and can  be followed by other disturbances and regrets  at loss of menstrual function \027 an outward  sign of femininity."

4.      Resection of fallopian tubes

       Provided the pelvic organs are healthy,  one of the best methods is to remove 1-2 cm  of the middle of each tube and to bury the  ligated ends separately under the peritoneum.  

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Sometimes the cornua of the uterus are  excised, together with the adjacent portions of  the tubes.  Excision of the whole of both tubes  is not so safe because it leaves the ovum free  to wander into a possible uterine fistula and  fimbriectomy should never be performed.   Retention of the abdominal ostia is an  advantage for it tends to ensure that ova  become trapped in the occluded tubes.

       Of the more simple operations on the  fallopian tubes the best is the Pomeroy  procedure in which a loop of tube is excised  and the cut ends secured with a ligature.  This  method has the advantage of avoiding  troublesome haemorrhage which can attend  the techniques described above, requires only  limited access, is speedy, and fails in not more  than 0.3 per cent of cases. The technique of  crushing and ligation of the tubes without  excising any part of them (Madlener operation)  is very unreliable, the failure rate being 3.0 per  cent; it is rarely practised now.

       Whatever technique be used for dividing  the tubes, it is important to ligature their cut  ends with plain catgut.  This is much more  likely to result in firm closure than is the use of  unabsorbable material, or even chromic gut.   Most failures are due to neglect of this  medicolegally very important point.

       Resection of the tubes is usually carried  out abdominally and is particularly easy to  perform 2-4 days after delivery when the  uterus is an abdominal organ and the tubes  readily accessible.  It can then, if necessary,  be carried out under local analgesia.  Tubal  resection (preferably  using the Pomeroy  technique) can also be performed vaginally  either during the course of another operation  or as the route of choice.  As a method of  choice it is not new as is sometimes  suggested; it was regularly carried out in the  1920s."

Dealing with reliability of the sterilization procedures  performed and commonly employed by the gynaecologists, the  text book states (at p.621):- Reliability The only sterilization procedures in the female  which are both satisfactory and reliable are:  resection or destruction of a portion of both  fallopian tubes; and hysterectomy.  No  method, however, is absolutely reliable and  pregnancy is reported after subtotal and total  hysterectomy , and even after hysterectomy  with bilateral salpingectomy. The explanation  of these extremely rare cases is a persisting  communication between the ovary or tube and  the vaginal vault.

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       Even when tubal occlusion operations are  competently performed and all technical  precautions are taken, intrauterine pregnancy  occurs subsequently in 0.3 per cent of cases.   This is because an ovum gains access to  spermatozoa through a recanalized inner  segment of the tube.

       There is clinical impression that tubal  resection operations are more likely to fail  when they are carried out at the time of  caesarean section than at any other time. The  fact that they occasionally fail at any time has  led many gynaecologists to replace the term  ’sterilization’ by "tubal ligation" or "tubal  resection" in talking to the patient and in all  records.  This has real merit from the  medicolegal standpoint."

[underlining by us]

       In Shaw’s Textbook of Gynaecology , after describing  several methods of female sterilization, the textbook states that  the most popular technique adopted in Mini-lapartomy  sterilization is Pomeroy method in which the fallopian tube is  identified on each side, brought out through the incision, and the  middle portion is formed into a loop which is tied at the base  with catgut and excised.  The failure rate is only 0.4% and it is  mainly due to spontaneous recanalization.  The operation is  simple, requires a short hospitalization, does not require any  sophisticated and expensive equipment like a laparoscope, and  can be performed in a primary health centre by a doctor trained  in this procedure.   In Madlener method, a loop of the tube is  crushed and ligated with a non-absorbable suture.  Failure rate  is of 7% and occurrence of an ectopic pregnancy are  unacceptable though it is a simple procedure to perform. There  are other methods, less popular on account of their indications,  which are also stated.  Dealing with the topic of complications  and sequelae of sterilization, the textbook states:

"Failure rate of sterilization varies from 0.4%  in Pomeroy’s technique, 0.3-0.6% by  laparoscopic method  to 7% by Madlener  method. Pregnancy occurs either because of  faulty technique or due to spontaneous  recanalization."  

                In ’The Essentials of Contraceptive Technology’,  written by four doctors and published by Center for  Communication Programs, The Johns Hopkins School of Public  Health in July, 1997, certain questions and answers are stated.  Questions 5 and 6 and their answers, which are relevant for our  purpose, read as under:

"5.  Will female        sterilization stop working  after a time? Does a woman who had a  sterilization procedure ever have to worry  about getting pregnant again?

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Generally, no. Female sterilization should be  considered permanent.  Failure rates are  probably higher than previously thought  however. A major new US study found that the  risk of pregnancy within 10 years after  sterilization is about 1.8 per 100 women \027 about 1 in every 55 women. The risk of  sterilization failure is greater for younger  women because they are more fertile than  older women.  Also, some methods of blocking  the tubes work better than others.  Methods  that cut away part of each tube work better  than spring clips or bipolar electrocoagulation  (electric current).  Effectiveness also depends  on the skill of the provider.

The same US study found that 1 of every 3  pregnancies after sterilization was ectopic.  If a  woman who has had sterilization ever thinks  that she is pregnant or has an ectopic  pregnancy, she should seek help right away.

[underlining by us]

6. Pregnancy after female sterilization is  rare but why does it happen at all?

The most common reason is that the woman  was already pregnant at the time of  sterilization. Pregnancy also can occur if the  provider confused another structure in the  body with the fallopian tubes and blocked or  cut the wrong place.  In other case pregnancy  results because clips on the tubes come open,  because the ends of the tubes grow back  together, or because abnormal openings  develop in the tube, allowing sperm and egg to  meet."

       In newsletter "alert" September, 2000 issue, Prof.(Dr.)  Gopinath N. Shenoy writes:

"Female sterilization can be done by many  methods/techniques, which are accepted by  the medical professionals all over the world.  It  is also an accepted fact that none of these  methods/techniques are cent percent ’failure  free’. This ’failure rate’ may vary from method  to method.  A doctor is justified in choosing  one method to the exclusion of the others and  he cannot be faulted for his choice if his choice  is based on reasonable application of mind and  is not ’palpably’ wrong.  A doctor has  discretionary powers to choose the  method/technique of sterilization he desires to  adopt."

[emphasis supplied]

       In "The New England Journal of Medicine" , owned,

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published and copyrighted by Massachusetts Medical Society, the  result of a research carried out by a team of doctors has been  published and widely circulated. 10,685 women enrolled and  eligible for long term follow up and willing to cooperate and  providing information were studied.  The relevant part of the  result of the study reads as under:

"The median age of women at the time of  sterilization was 30 years (range, 18 to 44;  mean [+ SD],31+6).  Most women were white  and had been pregnant at least twice (Table  1).  In all, 143 women (1.3 percent) reported  pregnancies that were classified as true failure  of sterilization.  For 66.4 percent of these  pregnancies, the classification was based on a  review of medical reports by the investigators.  The remainder were classified on the basis of  the woman’s history alone."  

       In Medico-legal Aspects in Obstetrics and  Gynaecology, edited by three doctors, Chapter 18, deals with  Medico-legal Problems in Sterilization Operations.  It is stated  therein that there are several methods of female sterilization of  which one that will suit the patient and the  surgeon/gynaecologist should be selected.  In India, Pomeroy’s  method is widely practised. Other methods include \026 Madlener’s,  Irving’s, Uchida’s methods and so on.  The text further states  that failure is one of the undesirous outcome  of sterilization.   The overall incidence of failure in tubectomy is 0.4 per 100  women per year. The text describes the following events  wherefrom sterilization failure usually results: i.      Spontaneous recanalisation or fistula formation  is perhaps the most common cause of failure.   Though these are generally non-negligent  causes of failure, it is very difficult to convince  the patient if they are not informed beforehand  about the possibility.

ii.     Undetected pregnancy at the time of  sterilization is an indefensible offence.  To  avoid such incidence, tests to detect pregnancy  should be done before sterilization operation is  undertaken.

iii.    Imperfect occlusion of the tube is a technical  loophole which may result in an unwanted  pregnancy.  The chance is particularly high in  laparoscopic methods.  If a gynaecologist fails  to place ring on any one of the tube due to  improper visualization, he or she must inform  the patient and her husband, and some other  contraceptive method should be advised.

iv.     Occlusion of the wrong structure(s), e.g. round  ligament is a common, indefensible error which  may particularly happen if the surgeon is  inexperienced.  This is more frequent in  laparoscopic methods where even confirmation  of the structure by biopsy is difficult, in case of  doubt.

       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

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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 Text Books on Gynaecology and empirical  researches which have been carried out recognize the failure  rate of 0.3% to 7% depending on the technique chosen out of  the several recognized and accepted ones.  The technique which  may be foolproof is removal of 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.

       An English decision Eyre v. Measday (1986) 1 ALL ER 488  is very near to the case at hand.  The facts of the case were that  in 1978, the plaintiff and her husband decided that  they did not  wish to have any more children.  The plaintiff consulted the  defendant gynaecologist with a view to undergoing a sterilization  operation.  The defendant explained to the couple the nature of  the particular operation he intended to perform, emphasising  that it was irreversible.  He stated that the operation ’must be  regarded as a permanent procedure’ but he did not inform the  plaintiff that there was a small risk (less than 1%) of pregnancy  occurring following the operation.  Consequently, both the  plaintiff and her husband believed that the result of the  operation would be to render her absolutely sterile and incapable  of bearing further children.  In 1979 the plaintiff became  pregnant and gave birth to a child.  The plaintiff brought an  action against the defendant for damages, inter alia, for breach  of contract, contending that his representation that the operation  was irreversible and his failure to warn her of the minute risk of  the procedure being unsuccessful, amounted to breach of a  contractual term, or express or implied collateral warranty, to  render her irreversibly sterile.  The judge dismissed her claim  and the plaintiff appealed to the Court of Appeal.

       The Court held \026  

"(1) The contract undertaken by the defendant  was to carry out a particular type of operation  rather than to render the plaintiff absolutely  sterile.  Furthermore, the defendant’s  representations to the plaintiff that the  operation was ’irreversible’ did not amount to  an express guarantee that the operation was  bound to achieve its acknowledged object of  sterilizing the plaintiff.  On the facts, it was  clear that the representations meant no more  than that the operative procedure in question  was incapable of being reversed.  

(2)  Where a doctor contracted to carry out a  particular operation on a patient and a  particular result was expected, the court would  imply into the contract between the doctor and  the patient a term that the operation would be  carried out with reasonable care and skill, but  would be slow to imply a term or unqualified  collateral warranty that the expected result  would actually be achieved, since it was  probable that no responsible medical man  would intend to give such a warranty.  On the  facts, no intelligent lay bystander could have

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reasonably inferred that the defendant was  intending to give the plaintiff a guarantee that  after the operation she would be absolutely  sterile and the fact that she believed that this  would be the result was irrelevant."

The appeal was dismissed.  The Court of Appeal, upheld  the finding of the trial judge that the risk of pregnancy following  such a procedure to which the plaintiff was subjected is  described as very small. It is of the order of 2 to 6 in every  1000. There is no sterilization procedure which is entirely  without such a risk.   Slade L J, stated in his opinion that "in the absence of any  express warranty, the court should be slow to imply against a  medical man an unqualified warranty as to the results of an  intended operation, for the very simple reason that, objectively  speaking, it is most unlikely that a responsible medical man  would intend to give a warranty of this nature.  Of course,  objectively speaking, it is likely that he would give a guarantee  that he would do what he had undertaken to do with reasonable  care and skill; but it is quite another matter to say that he has  committed himself to the extent suggested in the present case."

Purchas LJ, stated in his opinion that "it is true that as a  matter of deliberate election the defendant did not, in the course  of describing the operation which he was recommending,  disclose that there was a very small risk, one might almost say  an insignificant risk, that the plaintiff might become pregnant.   In withholding this information it must be borne in mind, first  that the defendant must have believed that the plaintiff would be  sterile, second that the chances were extremely remote that the  operation would be unsuccessful, third that in withholding this  information the defendant was following a practice acceptable to  current professional standards and was acting in the best  interest of the plaintiff, and fourth that no allegation of  negligence in failing to give this information to the plaintiff is  pursued any longer in this case.  There are, therefore, in my  judgment, no grounds for asserting that the result would  necessarily be 100% successful."     

       In Thake v Morris , [1986] 1 All ER 497 (CA) the claim  for damages was founded on contract and not in torts.  The  Court of Appeal firmly rejected the possibility of an enforceable  warranty.  Neill L J said:

"a reasonable man would have expected the  defendant to exercise all the proper skill and care of  a surgeon in that speciality: he would not have  expected the defendant to give a guarantee of 100%  success."

        Nourse L J said:

"of all sciences medicine is one of the least exact.  In  my view, a doctor cannot be objectively regarded as  guaranteeing the success  of any operation or  treatment unless he says as much in clear and  unequivocal terms."  

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

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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.

The cause of failure of sterilization operation may be  obtained from laparoscopic inspection of the uterine tubes, or by  x-ray examination, or by pathological examination of the  materials removed at a subsequent operation of re-sterilisation.   The discrepancy between operation notes and the result of x-ray  films in respect of the number of rings or clips or nylon sutures  used for occlusion of the tubes, will lead to logical inference of  negligence on the part of the gynaecologist in case of failure of  sterilisation operation. (See: Law of Medical Negligence and  Compensation by R.K. Bag, Second Edition, p.139)

Mrs. K. Sarada Devi, the learned counsel appearing for the  plaintiffs-respondents placed reliance on a 2-Judge Bench  decision of this Court in State of Haryana & Ors. v. Smt.  Santra, JT 2000 (5) SC 34, wherein this Court has upheld the  decree awarding damages for medical negligence on account of  the lady having given birth to an unwanted child on account of  failure of sterilization operation.  The case is clearly  distinguishable and cannot be said to be laying down any law of  universal application. The finding of fact arrived at therein was  that the lady had offered herself for complete sterilization and  not for partial operation and, therefore, both her fallopian tubes  should have been operated upon. It was found as a matter of  fact that only the right fallopian tube was operated upon and the  left fallopian tube was left untouched.  She was issued a  certificate that her operation was successful and she was  assured that she would not conceive a child in future.  It was in  these circumstances, that a case of medical negligence was  found and a decree for compensation in tort was held justified.   The case thus proceeds on its own  facts.  

The methods of sterilization so far known to medical  science which are most popular and prevalent are not 100% safe  and secure.  In spite of the operation having been successfully  performed and without any negligence on the part of the  surgeon, the sterilized woman can become pregnant due to  natural causes. Once the woman misses the menstrual cycle, it  is expected of the couple to visit the doctor and seek medical  advice.  A reference to the provisions of the Medical Termination  of Pregnancy Act, 1971 is apposite.  Section 3 thereof permits  termination of pregnancy by a registered medical practitioner,  notwithstanding anything contained in the Indian Penal Code,  1860 in certain circumstances and within a period of  20 weeks  of the length of pregnancy.  Explanation II appended to sub- section (2) of Section 3 provides ____   "Explanation II. ____  Where any pregnancy  occurs as a result of failure of any device or  method used by any married woman or her  husband for the purpose of limiting the number of  children, the anguish caused by such unwanted  pregnancy may be presumed to constitute a grave  injury to the mental health of the pregnant

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woman."   

And that provides, under the law, a valid and legal ground  for termination of pregnancy. If the woman has suffered an  unwanted pregnancy, it can be terminated and this is legal and  permissible under the Medical Termination of Pregnancy Act,  1971.   

       The cause of action for claiming compensation in cases of  failed sterilization operation arises on account of negligence of  the surgeon and not on account of child birth.  Failure due to  natural causes would not provide any ground for claim. It is for  the woman who has conceived the child to go or not to go for  medical termination of pregnancy.  Having gathered the  knowledge of conception in spite of having undergone  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 be claimed.    

For the foregoing reasons, we are of the opinion that the  judgments and the decrees passed by the High Court and courts  below cannot be sustained.  The trial court has proceeded to  pass a decree of damages in favour of the plaintiffs-respondents  solely on the ground that in spite of the plaintiff-respondent No.2  having undergone a sterilization operation, she became  pregnant.  No finding has been arrived at that will hold the  operating surgeon or its employer __ the State, liable for  damages either in contract or in tort.  The error committed by  the trial court, though pointed out to the first appellate court and  the High Court, has been overlooked.  The appeal has, therefore,  to be allowed and the judgment and decree under appeal have  to be set aside.

       We have decided the question of law and held that the  decree awarding the damages was totally uncalled for and had  no foundation in law, and therefore, has to be set aside. The  present case is an occasion, which we would like to utilize for the  purpose of making certain observations on three related topics  noted hereunder.

(1)  Jacob Mathew’s case (2005) 6 SCC1 : a post script

In Jacob Mathew this Court dealt with the liability of a  medical practitioner in criminal law.  Of course, the decision also  discussed in detail the law of medical negligence in general and  indicated the parameters of fixing liability.  The distinction  between the concept of negligence in civil law and negligence in  criminal law was highlighted.  The present case deals with the  law of negligence in tort.  The basis of liability of a professional  in tort is negligence.  Unless that negligence is established, the  primary liability cannot be fastened on the medical practitioner.  Unless the primary liability is established, vicarious liability on  the State cannot be imposed.  Both in criminal jurisprudence and  in civil jurisprudence, doctors are liable for consequences of  negligence.  In Jacob Mathew  even while dealing with criminal  negligence, this Court has indicated the caution needed in  approaching a case of medical negligence having regard to the  complexity of  the human body which is subjected to treatment  and the uncertainty involved in medical procedures.  A doctor, in  essence, needs to be inventive and has to take snap decisions  especially in the course of performing surgery when some  unexpected problems crop up or complication sets in.  If the

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medical profession, as a whole, is hemmed in by threat of action,  criminal and civil, the consequence will be loss to the patients.   No doctor would take a risk, a justifiable risk in the  circumstances of a given case, and try to save his patient from a  complicated disease or in the face of an unexpected problem  that confronts him during the treatment or the surgery.  It is in  this background that this Court has cautioned that the setting in  motion of the criminal law against the medical profession should  be done cautiously and on the basis of reasonably sure grounds.   In criminal prosecutions or claims in tort, the burden always  rests with the prosecution or the claimant.  No doubt, in a given  case, a doctor may be obliged to explain his conduct depending  on the evidence adduced by the prosecution or by the claimant.   That position does not change merely because of the caution  advocated in Jacob Mathew in fixing liability for negligence, on  doctors.   (2) How the medical profession ought to respond

Medical profession is one of the oldest professions of the  world and is the most humanitarian one. There is no better  service than to serve the suffering, wounded and the sick.  Inherent in the concept of any profession is a code of conduct,  containing the basic ethics that underline the moral values that  govern professional practice and is aimed at upholding its  dignity. Medical Ethics underpins the values at the heart of the  practitioner-client relationship. In the recent times, professionals  are developing a tendency to forget that the self-regulation  which is at the heart of their profession is a privilege and not a  right and a profession obtains this privilege in return for an  implicit contract with society to provide good, competent and  accountable service to the public. It must always be kept in mind  that doctor’s is a noble profession and the aim must be to serve  humanity, otherwise this dignified profession will lose its true  worth.

Medical profession has long subscribed to a body of ethical  statements developed primarily for the benefit of the patient.   The oldest expression of this basic principle comes from  Hippocrates, an early Greek Physician, born in 460 B.C. who  came to be known as the "Father of Medicine" and had devoted  his entire life to the advancement of medical science. He  formulated a code of conduct in the form of the Hippocratic  Oath, as he realized that knowledge and skill were not enough  for a physician without a code of standards and ideals. He coined  an oath of integrity for physicians, a code of standards and  ideals to which they must swear to adhere in the practice of their  profession.  This continues till date to be the oath administered  to doctors when they join the profession:  "I swear by Apollo the physician, by Fsculapius, Hygeia,  and Panacea, and I take to witness all the gods, all the  goddesses, to keep according to my ability and my  judgement, the following Oath.   To consider dear to me as my parents him who taught me  this art; to live in common with him and if necessary to  share my goods with him; to look upon his children as my  own brothers, to teach them this art if they so desire  without fee or written promise; to impart to my sons and  the sons of the master who taught me and the disciples  who have enrolled themselves and have agreed to the  rules of the profession, but to these alone the precepts and  the instruction. I will prescribe regimens for the good of  my patients according to my ability and my judgement and  never do harm to anyone. To please no one will I prescribe

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a deadly drug nor give advice which may cause his death.  Nor will I give a woman a pessary to procure abortion. But  I will preserve the purity of my life and my art. I will not  cut for stone, even for patients in whom the disease is  manifest; I will leave this operation to be performed by  practitioners, specialists in this art. In every house where I  come I will enter only for the good of my patients, keeping  myself far from all intentional ill-doing and all seduction  and especially from the pleasures of love with women or  with men, be they free or slaves. All that may come to my  knowledge in the exercise of my profession or in daily  commerce with men, which ought not to be spread abroad,  I will keep secret and will never reveal. If I keep this oath  faithfully, may I enjoy my life and practice my art,  respected by all men and in all times; but if I swerve from  it or violate it, may the reverse be my lot."

Many versions of Hippocratic Oath are prevalent.  "Light  From Many Lamps" a book edited by Lilian Eichler Watson  contains a little different phraseology of that oath but certainly a  beautiful commentary on the significance of the Hippocratic  Oath. We would like to reproduce the oath and the commentary   hereunder: (pages 181-182); "I do solemnly swear by that which I hold most  sacred:

That I will be loyal to the profession of  medicine and just and generous to its members;

That I will lead my life and practice my art in  uprightness and honor;

That into whatsoever house I shall enter, it  shall be for the good of the sick to the utmost of my  power, I holding myself aloof from wrong, from  corruption, and from the temptation of others to  vice;

That I will exercise my art solely for the cure of  my patients, and will give no drug, perform no  operation for a criminal purpose, even if solicited, far  less suggest it;

That whatsoever I shall see or hear of the lives  of men which is not fitting to be spoken, I will keep  inviolably secret.

These things I do promise, and in proportion as  I am faithful to this my oath may happiness and  good repute be ever mine __ the opposite if I shall be  forsworn."

[F.N.: The Hippocratic Collection, containing  the best of the ancient Greek medical writings, was  put together by Aristotle and has survived through  the centuries.  The "Hippocratic Oath" is one of the  last and most inspiring passages in this Collection.   There are a number of versions of the famous Oath;  but the form given here is the one commonly used  today; and is an adaptation of a translation from the  original Greek.]

"The medical profession is and always has been one  of the most ethical of all professions; and this is due

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at least in part to the centuries-old influence of the  Hippocratic Oath.  This famous Oath has kept alive  the high standards and ideals set by Hippocrates,  and forms the basis of modern medical ethics.

Written more than twenty centuries ago, the  Hippocratic Oath has inspired generations of doctors  . . . and continues to do so even now.  The Oath is  still administered by medical schools to graduating  classes; and thousands of physicians have framed  copies on their walls along with their diplomas.   Conscientious practitioners continue to live up to the  principles and ideals set down for their profession so  long ago by the "Father of Medicine."  

Though it was written specifically for  physicians, the Hippocratic Oath sets an enduring  pattern of honor, integrity, and devotion to duty for  all people, in all professions." And certainly to  surgeons."

Many people argue that the original Hippocratic Oath is  inappropriate in a society that has seen drastic socio-economic,  political and moral changes, since the time of Hippocrates.  Certain parts of the original oath such as teaching the master’s  sons the secrets of medicine without fees and the promise not to  bring a knife to another’s body but to leave it to ’practitioners of  the craft’ have been rendered obsolete as the modernisation of  education has led to the teaching of medical science in  institutions of higher learning, and specialisation in medicine has  led to physicians who specialise in a variety of fields including  surgery. Similarly, the legalisation on abortion and physician- assisted suicide in certain parts of the world, has made it  awkward for some medical practitioners there to carry on in the  tradition of the original oath.  This has led to the modification of the oath to something  better suited for our times. One of the most widely used versions  is The Declaration of Geneva which was adopted by the  General Assembly of the World Medical Association at Geneva in  1948. Written with the medical crimes committed in Nazi  Germany in view, it is a ’declaration of physicians’ dedication to  the humanitarian goals of medicine.’ It is also perhaps the only  one to mention treating people equally, without regard as to  race, religion, social standing and political affiliations: "I solemnly pledge myself to the service of humanity. I  will give to my teachers the respect and gratitude which  is their due. I will practice my profession with conscience  and dignity. The health of my patient will be my first  consideration. I will respect the secrets which are  confided in me. I will maintain by all means in my power  the honour and noble traditions of the medical profession.  My colleagues will be my brothers and sisters. I will not  permit consideration of religion, nationality, race or social  standing to intervene between my duty and my patient. I  will maintain the utmost respect for human life even  under threat. I will not use my medical knowledge  contrary to the laws of humanity. I make these promises  solemnly, freely and upon my honour."

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In recent times the self regulatory standards in the  profession have shown a decline and this can be attributed to  the overwhelming impact of commercialization of the sector.  There are reports against doctors of exploitative medical  practices, misuse of diagnostic procedures, brokering deals for  sale of human organs, etc. It cannot be denied that black sheep  have entered the profession and that the profession has been  unable to isolate them effectively. The need for external  regulation to supplement professional self-regulation is  constantly growing. The high costs and investments involved in  the delivery of medical care have made it an entrepreneurial  activity wherein the professionals look to reaping maximum  returns on such investment. Medical practice has always had a  place of honour in society; currently the balance between service  and business is shifting disturbingly towards business and this  calls for improved and effective regulation, whether internal or  external. There is need for introspection by doctors \026 individually  and collectively.  They must rise to the occasion and enforce  discipline and high standards in the profession by assuming an  active role.

(3)  Need for devising a welfare fund or insurance scheme

Failure of many a sterilization operation, though  successfully performed, is attributable to causes other than  medical negligence as we have already discussed hereinabove.   And, yet the doctors are being faced with claim for damages.   Some of the claims have been decreed by the courts without  arriving at any finding providing a foundation in law for  upholding such a claim.  The state is also being called upon to  honour such decrees on the principle of vicarious liability when  the surgeon has performed a surgery in discharge of his duty.   Mostly such surgeries are performed on a large scale and as a  part of family welfare programmes of the Government.   Obviously, such programmes are in public interest.  Such like  decrees act as a disincentive and have deterrent effect on the  surgeons performing sterilization operations.  The State, flooded  with such decrees is also inclined not to pursue family planning  camps on large scale though in public interest.   

       In Javed & Ors. v. State of Haryana & Ors. (2003) 8  SCC 369, popularly known as ’Two-Child Norm’ case, this Court  had an occasion to deal with the problem of increasing  population, the danger which it poses for the progress of the  nation and equitable distribution of its resources and upheld the  validity of the Haryana legislation imposing a disqualification on   persons having more than two children from contesting for an  elective office.  The fact cannot be lost sight of that while   educated persons in the society belonging to the middle-class  and the upper class  do voluntarily opt for family planning and  are careful enough to take precautions or remedial steps to  guard against the consequences of failure of sterilization,  the  illiterate and the ignorant and those belonging to the lower  economic strata of  society face the real problem.  To popularize  family planning programmes in such sections of society, the  State Government should provide some solace to them if they,  on account of their illiteracy, ignorance or carelessness, are  unable to avoid the consequences of a failed sterilization  operation.  Towards this end, the State Governments should  think of devising and making provisions for a welfare fund or  taking up with the insurance companies, a proposal for devising  an appropriate insurance policy or an insurance scheme, which  would provide coverage for such claims where a child is born to

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woman who has undergone a successful sterilization operation,  as in the present case.   

Conclusion

The appeal is allowed.  The judgment and decree passed  by the trial court and upheld by the first appellate court and the  High Court are set aside.  The suit filed by the plaintiffs- respondents is dismissed. However, as we have already stated,  in view of the concession given by the learned Additional  Advocate General appearing for the appellant State, the amount  of Rs.50,000/- if already paid to the plaintiff-respondent shall  not be liable to be refunded by way of restitution.  No order as to  costs.