Holding

The State is vicariously liable for the medical officer's negligence and the plaintiff is entitled to damages, including costs of maintaining the unwanted child.

Summary

Smt. Santra, a poor labourer with seven children, underwent a sterilisation operation at a government hospital under the family‑planning scheme and was issued a certificate stating the procedure was successful. She later became pregnant and gave birth to a child because only her right fallopian tube had been operated on, the left tube being left untouched. She sued the State of Haryana and its officers for damages arising from medical negligence, including the cost of maintaining the unwanted child. The Supreme Court held that a doctor owes a duty of reasonable care, that negligence is a tort, and that the State is vicariously liable for the negligence of its medical officers in a government hospital. It further held that the statutory obligation of parents to maintain their children does not bar a claim for damages, and that the respondent is entitled to compensation for the economic burden of raising the child. Consequently, the appeal by the State was dismissed.

Issues considered

The doctor performed an incomplete sterilisation operation, constituting medical negligence.
Whether the State of Haryana is vicariously liable for the negligence of its medical officer.
Whether damages for the cost of maintaining an unwanted child can be awarded despite the parents' statutory maintenance obligations.
Whether the doctrine of sovereign immunity or public policy bars recovery in such cases.

Legislation cited

Code of Criminal Procedure, 1973s. 125
Consumer Protection Act, 1986s. 2(g), s. 2(I)
Hindu Adoptions and Maintenance Act, 1956s. 20, s. 23

Subjects

medical negligencesterilisationvicarious liabilitystate liabilitydamages for unwanted childmaintenance obligationconsumer protectiontort lawfamily planningpublic policy

Judgment

STATE OF HARYANA AND ORS. A
v.
SMT.SANTRA

APRIL 24, 2000

[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] B

Consumer Protection Act 1986-Sections 2( I)( oJ and (g).

Medical Negligence-Damages for-Labourer lady had undergone steri-
lisation operation at Government Hospital since she had already seven children c
and was issued a cretificate to this effect-However, she gave birth to a female
child-It was found that only the right Fallopian Tube was operated upon
leaving the other one untouched-Held : In spite of the moral and statutory
obligation ofthe parents to maintain their minor children, the poor lady entitled
to damages for medical negligence-State is also vicariously liable for the
negligence of its employees Criminal Procedure Code, S. 125. D

Hindu Law:

Hindu Adoptions and Maintenance Act, 1956: Sections 20 and 23.

Minor children-Maintenance of-Held: Parents are liable to maintain E
their minor children.

Muslim Law:

Minorchildren...:._Maintenance of-Held: Father is liable to maintain his
minor children. F
Tort:

Negligence-Medical Negligence-Held: A doctor has a duty to act with
a reasonable degree of care and skill.
G
Words and Phrases :

"Maintenance"-Meaning of-In the context ofS.20 ofthe Hindu Adop-
tions and Maintenance Act, 1956.

Negligence"-Meaning of H
195
196 SUPREME COURT REPORTS [2000] 3 S.C.R.
A The respondent had undergone Sterilisation Operation at the
Government General Hospital as she already had seven children and wanted
to take advantage of the scheme of Sterilisation launched by the State
Government. She was issued a certificate that her operation was successful.
She was assured that she would not conceive a child in future. But she
B conceived and ultimately gave birth to a female child.

Thereafer, the respondent filed a suit against the State and its Officers "':(
for recovery of damages for medical negligence. The explanation offered by
the appdlant-State who were defendants in the suit was that at the time of
Sterilisation Operation, only the right Fallopian Tube was operated upon
C and the left Fallopian Tube was left untouched. The courts below rejected
this explanation and the suit was decreed. Hence this appeal.

On behalf of the appellant-State it was contended that the negligence
of the Medical Officer in performing the unsuccessful sterilisation opera-
tion would not bind the State Government, that the State Government
D would not be liable vicariously for any damages to the respondent; and 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 the respondent suffered any loss which could be
compensated in terms of money.
E
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 'iml'lied undertaking' by a member of the
F medical profession that he would use a fair, reasonable and competent
degree of skill. (202-F]

Dr. Lax.man Balakrishna Joshi v. Dr. Trimbak Bapu Godhole, AIR (1969)
SC 128; A.S. Mittal v. State of U.P., AIR (1989) SC 1570; Poonam Verma v.
Ashwin Pate4 (1996) 4 SCC 332 and Spring Meadows Hospital v. Harjol
G Ahluwalia, JT (1998) 2 SC 620, relied on.

Bolam v. Priem Hospital Management Committee, (1957) 2All ER 118;
Whitehouse v. Jordon, (1981) 1 Ah ER 267; Maynard v. West Midlands
Regional Health Authority, (1985) 1 All
ER 635 and Sidway v. Bathlem Royal
H Hospita4 (1985) 1 All ER 643, referred to.
STATE v. SMT. SANTRA 197
1.2. The Government at the Centre as also at the State level is aware A
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
B
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 c
sterilisation reasonably expect that after undergoing the operation they
would he 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 D
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
E
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 F
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 G
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) 715P2d1076; Johnson v. University Hospitals of Cleveland,
(1989) 540 NE 2d 1370 (Ohio); Public Health Trust v. Brown, (1980)·388 So
2d 1084; Lovelace Medical Centerv. Mendez,, (1991) 805 P 2d 603; Adminis- H
198 SUPREME COURT REPORTS [2000] 3 S.C.R.
A trator, Natal v. Edouard, (1990) 3 SA 581,L v. M, (1979) 2NZLR 519; CESv.
Superr:linics (Australia) Pty. Ltd., (1995) Ltd. (1985) 38 NSWLR 47; Mc
Farlane & Am: 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
B
allowed on account of failed sterilisation operation in other countries either
on account of public pleasure in ha,ing 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 pro-
c grammes have been launched to implement the state-sponsored family
planning programmes and policies. [210-G-ll]

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,
D 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-
E 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
F 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 ~tuations
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
G child. Claim for damages, on the contrary, is b~sed on the principle that if a
person has committed civil wrong, he mu!!,t pay compensation by way of A.
damages to the person wronged. [212-C-D]

Mulls's Principles of Mohammedan Law (19th E«;Jn.), p. 300, referred
H to.
STATE v. SMT. SANTRA [S.SAGHIR AHMAD, J.] 199
4. In a country where the population is increasing by the tick of every A
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
B
negligence, which is directly responsible for another birth in the family,
)r creating additional economic burden on the person who has chosen to be
operated upon for sterilisation. [212-F]

State ofM.P. v. Asharam, (1991) ACJ 1224 (MP), approved.

.5. The contention as to the vicarious liability of the State for the
c
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 ofA.P., AIR (1994) SC 2663; Common Cause,
A Regd. Society v. Union of India, [1999] 6 SCC 667 and Achutrao Haribhau D
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 E
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.
F
From the Judgment and Order dated 3.8.99 of the Punjab and Haryana
High Court in R.S.A. No. 2734 of 1999.

S.R. Sharma and Mahabir Singh for the Appellants.

The Judgment of the Court was delivered by G
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 H
200 SUPREME COURT REPORTS [2000] 3 S.C.R.
A 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
B 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
c State of Haryana was summarily dismissed by the Punjab and 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
D Medical Officer, Gurgaon, for her sterilisation in 1988. The sterilisation
operation was perfonned 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
E 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. Sushi! Kumar
Goyal, who was examined as DW-2, stated that the operation related only to
F 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
G 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
H relating to non-maintainability of the suit on various grounds, denied in the
STATE v. SMT. SANTRA [S.SAGfllR AHMAD, J.] 201
written statement that there was any negligence on the part of the Medical A
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 B
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
)r
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.
c
The trial court as also the lower appellate court both recorded concurrent
findings of fact that the sterilisation 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 D
performed the operation. Smt. Santra, in spite of the unsuccessful operation,
was informed that sterilisation 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:
E
"The birth of the female child by plaintiff Smt. Santra after operation
for sterilization is not disputed and the case of the <lefts 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 F
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 OW 2 Dr. Sushil Kumar shows G
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: H
202 SUPREME COURT REPORTS [2000] 3 S.C.R.
A "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 sterilisation to her. The
B
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 sterilisation case card Ex. P2 on the file. The defendant
State has admitted in its written statement that she was successfully
operated on 4.2.82 in General Hospital, Gurgaon. When admittedly
c Santra, plaintiff was not operated, as discussed above, for her left tube
in that event issuance of certificate to her of her sterilisation amounts
gross negligence."

The High Court, as pointed out above, summarily dismissed the second
appeal.
D
Learned counsel appearing on behalf of the State of Haryana bas
contended that the negligence of the Medical Officer in performing the
unsuccessful sterilisation 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
E
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
F 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 be would use a fair, reasonable and competent degree of skill.
In Bolam v. Friern Hospital Management Committee, (1957) 2 All ER 118,
McNair, J. summed up the law as under:

G "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
H failure to act in accordance with the standards of reasonably compe-
STATE v. SMT. SANTRA [S.SAGHIR AHMAD, J.] 203

..,. tent medical men at the time. There may be one or more perfectly A
- 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 v. Jordon, (1981) 1 All ER 267 HL; Maynard v. West Midlands
Regional Health Authority, (1985) 1 All ER 635 HL; and Sidway v. Bathlem B
Royal Hospital (1985) 1 All ER 643 HL.
)or•

In two decisions rendered by this Court, namely, Dr. Laxman Balakrishna
Joshi v .. Dr. Trimbak Bapu Godhole & Am:, AIR (1969) SC 128 andA.S. Mittal
v. State of U.P., AIR (1989) SC 1570, it was laid down that when a Doctor c
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 vemza D
v. Ashwin Paiel & 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 negli- E
gence, collateral negligence, comparative negligence, concurrent

- negligence, continued negligence, criminal negligence, gross negli-
gence, hazardous negligence, active and passive negligence, wilful or
reckless negligence or Negligence per se, which is defined in Black's
Law Dictionary as under :
F
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
.G
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, H
204 SUPREME COURT REPORTS [2000] 3 S.C.R.
A no further proof is needed. ~

In Mis Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through
K.S. Ahluwalia & Anr., IT (1998) 2 SC 620, it was observed as under :

"In the case in hand we are dealing with a problem which centres
B 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
c 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

D
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
E
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 pperate to limit medical litigation in this ....
country."

F 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 negli-
G ger.ce. 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
H would tantamount to negligence cannot be pardoned. In the former
..--
STATE v. SMT. SANTRA [S.SAGHIR AHMAD. J.] 205
case a court can accept that ordinary human fallibility precludes the A
-· ')--
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 v. Jordan & Anr., (1981) 1 ALL ER 267. Lord Fraser, B
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 c
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."
D
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
E
Sterilisation launched by the State Govt. of Haryana. She underwent the
Sterilisation 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 F
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 Sterilisation and not for partial operation. The G
certificate issued to her, admittedly, was also in respect of total Sterilisation
~· 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 H
206 SUPREME COURT REPORTS [2000) 3 S.C.R.
A 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
B
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
c 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
D
the complete sterilisation operation, sabotage the scheme of national impor~
tance. The people of the country who cooperate by offering themselves
voluntarily for sterilisation reasonably expect that after undergoing the opera-
tion they would be able to avoid further pregnancy and consequent birth of
additional child.
E
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·
F
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
G 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
.H one or two stray decisions of the High Courts, to which a reference shall be
STATE v. SMT. SANTRA [S.SAGHIR AHMAD, J.) 207

-.(
-.. made presently. Before coming to those cases, let us have a look around the A
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:
B
).,.- "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 inay in fact be wanted by the
time of its birth. c
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.
D
Damages may include loss of earnings for the mother, maintaining the
child (ta1cing into account child benefit), and pain and suffering to the
mother."
A-
In Udale v. Bloomsbury Area Health Authority, [1983] 2 All ER 522,
a woman who had approached Hospital Authorities for sterilisation was E
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 F
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.
G
~ 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 = H
208 SUPREME COURT REPORTS [2000] 3 S.C.R.
A [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
B
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
c 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
D possibility to educate the child till he becomes an adult. On these considera-
tions, 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.
E
In a case in Scotland, namely, Allan v. Greater Glasgow Health Board
(1993) 1998 SLT 580, public poiicy considerations were rejected and cost of
rearing the child was also awarded.

In three cases in the United States of America, namely, Szekeres v.
F Robinson, (1986) 715 P 2d 1076; Johnson v. University Hospitals of Cleve-
land, (1989) 540 NE 2d 1370 (Ohio) and Public Heq.lth 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
I
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
b 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 a.J.injury to the
parents. In the third case in which the claim was preferred by a woman
H alleging that the sterilisation operation performed upon her was negligently
• STATE v. SMT. SANTRA [S.SAGHIR AHMAD, J.] 209
.,... done which resulted in pregnancy for a child which she never wanted, the A
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."

B
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 c
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 D
th~ 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 aNewzealandcase in L v. M, (1979) 2 NZLR519, the court of appeal
refused to allow cost of rearing a child. E

In a case from Australia, namely, CES v. Superclinics (Australia) Pty.
!Jd., (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 F
to diagnose. The claim was dismissed by the trial judge on the ground that
11
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
sllffering 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 G
~ 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 H
210 SUPREME COURT REPORTS [2000] 3 S.C.R.
A 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
B
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
c· countries are not unanimous in allowing the clair.i 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 fa rearing up that child. In many other cases, if the
sterilisation was undergone on account of social and economic reasons,
D particularly in a situation where the claimant had already had many children,
the court allowed ·the claim for rearing up the child. These cases were
considered by the House of Lords in MC Parlane & Am: v. Tayside Health
Board, [1999] 4 All England Reports 961, but the case eluded a unanimous
verdict.
E
In State of M.P. & Ors. v. 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.

F 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
G 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 "
H Government is to control the population and that is why various programmes
STATE v. SMT. SANTRA [S.SAGHIR AHMAD, J.] 211
have been launched to implement the state-sponsored family planning p~o A
grammes 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.
B
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: c
"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 D
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. E
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 F
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
G
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 H
212 SUPREME COURT REPORTS [2000] 3 S.C.R
A 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 mainte-
nance to their children.

B 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
C 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
D 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.
E 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
F 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.

G 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. v. State of
A.P., AIR 1994 SC 2663 = (1994) 6 SCC 205; Common Cause, A Regd.
Society v. Union of India & Ors. [1999] 6 SCC 667 =AIR 1999 SC 2979 and
Achutrao Haribhau Khodwa & Ors. v. State of Maharashtra & Ors., (1996)
H
. STATE v. SMT. SANTRA [S.SAGHIR AHMAD, J.] 213
~ ACJ 505. The last case, which related to the fallout of a sterilisation operation, A
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 akeady under considerable monetary burden. The B
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
c
is dismissed but without any order as to costs.

V.S.S. Appeal dismissed.

-