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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.