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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

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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

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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

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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

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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),

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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

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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

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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.

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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

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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.