1 2025:CGHC:15617 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 857 of 2020  Manisha Kurrey W/o Rakesh Kumar Kurrey Aged About 26 Years R/o Sukullkari, Police Station- Masturi, District- Bilaspur, C.G. ... Petitioner(s) versus 1. State Of Chhattisgarh Through The Secretary, Family Welfare Department, Mantralaya, Mahila Avam Bal Vikash, Atal Nagar, Nava Raipur, District- Raipur, C.G. 2. The Collector Bilaspur, District- Bilaspur, C.G. 3. Chief Medical And Health Officer Bilaspur, District Bilaspur, C.G. 4. Chhattisgarh Institute Of Medical Science Govt. Of Chhattisgarh, CIMS Hospital, Bilaspur, District- Bilaspur, C.G. ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner : Ms. Dhaneshwari Patel, Advocate holding the brief of Mr. Pushpendra Kumar Patel, Advocate For State : Ms. Shailja Shukla, Dy. Government Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 03. 04.2025 Heard on admission. 1. By way of this petition, the petitioner has sought the following relief(s):- “10.1 That this Hon’ble Court, may kindly call for the entire record in relates to the case of the petitioner. 10.2 That, this Hon'ble Court, may kindly be pleased to issued a writ /or writs/order/ or orders / to direct the SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.04.04 15:41:21 +0530 2 respondent's authorities, to grant the suitable compensation to the petitioner as well as all expenses of the third children of his maintenance, in the interest of justice. 10.3 That, any other relief, this Hon'ble Court, deem fit and proper may also kindly be granted to the petitioner, in the interest of justice.” 2. Learned counsel for the petitioner would submit that the petitioner underwent sterilization surgery on 23.05.2018 at Chhattisgarh Institute of Medical Science, Bilaspur. She would further submit that the petitioner conceived a third child after sterilization. She would also submit that due to the failure of sterilization and negligence of the respondent authorities, a third male child was born on. 3. On the other hand, learned counsel appearing for the State would oppose. She would submit that there is no allegation of negligence on the part of the Surgeon. She would further submit that the petitioner has not placed any material to establish negligence on the part of the Surgeon. She would also submit that the petitioner was advised to visit the Medical Officer after six weeks, but she never approached the treating Doctor. She has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of State of Punjab vs. Shiv Ram and others reported in (2005) 7 SCC 1. 4. I have heard learned counsel appearing for the parties and perused the documents placed on the record. 5. The Hon’ble Supreme Court while dealing with a similar issue in the matter of Shiv Ram (supra), held that the cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x- ray examination, or by pathological examination and the methods of sterilization so far known to medical science which are most popular and 3 prevalent are not 100% safe and secure. The Hon’ble Supreme Court further held that in such a case, women would not be entitled to get compensation. The relevant para 25, 26, 28 and 30 are reproduced here- in-below:- “25. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee. 26. The cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at a subsequent operation of re- sterilisation. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilisation operation. (See: Law of Medical Negligence and Compensation by R.K. Bag, Second Edition, p.139) 28. The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 4 20 weeks of the length of pregnancy. Explanation II appended to sub- section (2) of Section 3 provides : “Explanation II. ____ Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman." 30. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.” 6. Taking into consideration the fact that after sterilization, the petitioner never visited the treating Doctor though she was advised. Further, the petitioner has not produced any material to prove negligence on the part of the Surgeon. 7. Taking into consideration the law laid down by the Hon’ble Supreme Court and the facts of the present case, in the opinion of this Court, no case is made out for interference. Consequently, this petition fails and is hereby dismissed at the admission stage. No cost(s). Sd/- (Rakesh Mohan Pandey) Judge $iddhant