STATE OF PUNJAB Vs. SHIV RAM

JUDGEMENT

(1.) -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 Governments 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.

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

(3.) 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.