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 $~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 19.12.2023

Pronounced on: 22.12.2023

+ W.P.(CRL) 2700/2023
KUNDAN SINGH ..... Petitioner
Through: Mr. Ashutosh Kaushik,
Advocate.

versus

THE STATE GOVT. OF NCT DELHI ..... Respondent

Through: Ms. Rupali Bandhopadhya,
ASC for the State with Mr.
Abhijeet Kumar, Advocate.
SI Karan Pal, PS: Mehrauli.
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA

JUDGMENT

INDEX TO THE JUDGMENT

INTRODUCTION................................................................................................ 2
FACTUAL BACKGROUND .............................................................................. 2
ARGUMENTS ADDRESSED BEFORE THIS COURT ................................. 4
ANALYSIS AND FINDINGS ............................................................................. 5
i. Right to Procreate Covered Within the Ambit of Article 21 of
Indian Constitution ............................................................................ 5
ii. The Right To Procreate While Being Incarcerated Is Not An
Irrefutable Right .............................................................................. 12
CONCLUSION .................................................................................................. 13

Signature Not Verified W.P.(CRL) 2700/2023 Page 1 of 14

Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:22.12.2023
20:56:32
 him. It is also stated that the convict is not entitled to parole, in view
of Rule 1210 sub rule (II) of Delhi Prison Rules, 2018. It is further
argued that two years have not elapsed from meting out major
punishment to the convict, which is mandatory for being released on
parole. It is, however, stated that as per the verification report, an
inquiry was conducted by SHO, P.S. Mehrauli, and it was found that
the petitioner is a permanent resident of Heeragarh, Nainital,
Uttrakhand, who had got married in the year 2020 and that there is
no child born from the wedlock.
10. This Court has heard arguments addressed by learned counsel
for the petitioner as well as learned ASC for the State, and has gone
through the case file and material on record.

ANALYSIS AND FINDINGS

11. The present case reveals that the convict i.e. the petitioner
herein has been convicted and has been incarcerated for last about 14
years. He is about 41 years of age, whereas his wife is 38 years of
age.
12. During the course of arguments, learned counsel for the
petitioner had pointed out that the accused and his wife need to
undergo certain medical examinations and diagnostic tests conducted
by a specialized hospital and may also require IVF treatment.

i. Right to Procreate Covered Within the Ambit of Article 21 of

Indian Constitution

Signature Not Verified W.P.(CRL) 2700/2023 Page 5 of 14

Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:22.12.2023
20:56:32
 13. This Court is of the opinion that Article 21 of the Constitution
of India, which guarantees the fundamental right to life and personal
liberty is not completely obliterated by a person‟s incarceration.
Though, the human right of personal liberty of convict has to be
surrendered in favour of the safety of the State and for the purpose of
establishing rule of law, the convict cannot be denied the protection
of fundamental right to life, which is expansive, and in this Court‟s
opinion, will also include right to have a child, in peculiar facts and
circumstances of a case. While a constitutional Court has to
ensure rule of law, it also has to ensure social justice.
14. The Delhi Prison Rules, 2018, do not find mention of
procreation of children and parenthood as a ground for grant of
parole. However, in this Court’s opinion, if the rules do not
provide for a particular specific ground, it cannot bar a
Constitutional Court to go beyond the specific mention of a
ground and can, in the facts and circumstances of a case,
interpret and adjudicate a prayer before it by referring to the
intent and content of the Rules and the practical context in which
they need to be interpreted.
15. In this regard, in the factual context of the present case and
cases of similar nature, this Court holds that where the age of the
convict and the biological clock of the convict and his marital partner
has the potential of becoming a barrier for them to conceive and
procreation of a child in future as a result of long incarceration of a
convict, their prayer will need to be attended and adjudicated with
empathy, though within the parameters of law.

Signature Not Verified W.P.(CRL) 2700/2023 Page 6 of 14

Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:22.12.2023
20:56:32
 16. Though parole can be granted to maintain social ties,
which is a larger concept, the ground for grant of parole for the
reason as in the present case cannot be considered less
important. The accused is aged about 41 years, whereas his wife is
about 38 years of age, who have been married for last three years.
The accused has been in judicial custody for the last 15 years, and
was married while he was granted parole/furlough. The concern of
the convict and his wife seems to be genuine that their age and the
biological clock cannot wait for the period of incarceration to be
over. The convict and his wife need medical assistance to have a
child and for the same the convict also needs to undergo certain
diagnostic tests.
17. This Court is of the opinion that a constitutional Court is duty
bound to ensure that fundamental right of every citizen is upheld and
is not violated. The definition of a citizen will include even a convict.
A convict does not become a lesser citizen only due to his
incarceration and his fundamental rights are of equal importance
and have to be given equal weightage as any other free citizen.
18. This Court is also of the opinion that it is human tendency
and a natural desire for an individual to have biological children
which can be for the purpose of adding value or meaning to their
lives. It also can be for the purpose of ensuring a family lineage and
saving their family tree. Therefore, seeking parole for the purpose of
having children, when the biological clock of the convict and his
wife are moving in the opposite direction, so as to become a barrier
after a few years for the purpose of having a child, should not be

Signature Not Verified W.P.(CRL) 2700/2023 Page 7 of 14

Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:22.12.2023
20:56:32
 considered as if it is for the purpose of conjugal relations or for any
other fulfilment, but to ensure the right to procreation.
19. In the present case, the prayer for parole for the purpose of
procreation, with medical assistance, due to the age of the convict,
who has been in jail when he was about 25 years of age, and is now
about 41 years of age and the standpoint of the convict and his wife
in this regard needs to be taken note of. This Court is of the view that
it is a personal choice and fundamental right of an individual, though
a convict, and his wife who is a free citizen to have a child together
for protecting and saving their lineage which must be respected by a
Court of law. People make different choices in different situations
and not everyone may feel the same way about they being
incomplete without giving birth to a child and even that point of
view is respected by the Courts.
20. The majesty of the law lies in its capacity to understand,
respect and embrace within the parameters of law, different
point of views and through the prism of rule of law, pass orders
which will grant relief to anyone who approaches the Court
without being judgmental. Further, in this Court’s opinion, the
definition of fundamental rights and its expansion cannot be
caged in narrow formulas of black and white letters and its duty
and beauty lies in interpreting it with broader point of view as
the faith of the common man in the judicial system is on the
broad shoulders of Courts of law of Bharat.
21. In backdrop of this observation, this Court has no hesitation
to hold that right to life under Article 21 of the Constitution of

Signature Not Verified W.P.(CRL) 2700/2023 Page 8 of 14

Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:22.12.2023
20:56:32
 India will include right of a convict to have a child when he is not
blessed with a biological child by being extended the relief of
grant of parole for this purpose where he needs medical
assistance and the biological clock due to his age may weaken
and make prospects of having a child bleak.
22. The Courts have to be sensitive while dealing with cases of
such nature and about prayers, made by this age group of the
convicts and ensure that severe breach of human rights and their
intrinsic value is not committed by denying them the right to
parenthood by passing mechanical orders and denying them parole
on this ground by taking a narrow approach and holding that the
statute in black and white does not specifically provide for this
ground for grant of parole.
23. Further, delay in having a biological child would mean
curtailing this fundamental right to parenthood, due to incarceration
of a convict. The right to procreate, in this Court’s opinion
survives despite incarceration, in certain set of facts and
circumstances of a given case, as the present one.
24. While, Judiciary in Bharat, has always stubbornly refused
to hold that prisoners have no fundamental rights, this Court
following the same tradition as handed over by judges of the
Hon’ble Apex Court and this Court respectfully takes the intent
to interpret the constitutional rights in favour of upholding and
including new situations and challenges holds that right to
parenthood and procreation is fundamental right of a convict in
peculiar circumstances of a case. Needless to say, the same have

Signature Not Verified W.P.(CRL) 2700/2023 Page 9 of 14

Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:22.12.2023
20:56:32
 to be adjudged on the basis of facts and circumstances of each
case.
25. Furthermore, the judicial decisions have to be a fine and
delicate combination of upholding the fundamental right of the
convict in a given circumstance without loosing sight of realities
of life and legitimate human desires and thus, in the process
upholding the view that prisoners are humans too.
26. In this Court‟s opinion, the fundamental right to have a child
in the present circumstances, where the convict and his wife need
medical assistance due to their age and the same being considered as
human right of the convict, cannot be deemed to be surrendered in
favour of the State as right of freedom and liberty which have to be
surrendered in favour of the State, once a person is convicted.
27. When the other parameters for grant of parole as per law are
available to the convict, this Court would be duty bound to exercise
its extraordinary jurisdiction and ensure that the incarceration of the
convict would not act as a barrier between the fundamental right to
procreate a child with assistance of medical procedures, due to the
advancing age of the convict, while the Court ensures the right of the
State to confine the convict to the jail, for the purpose of maintaining
rule of law and security of the State and its citizens.
28. To conclude, while passing orders such as for grant of parole,
for procreation purpose, where medical assistance is required due to
advanced age of convict, when they do not have a biological child
and the accused is in custody for a long period, the Courts have to
note that the facts represented pass the test regarding prisoners‟

Signature Not Verified W.P.(CRL) 2700/2023 Page 10 of 14

Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:22.12.2023
20:56:32
 and 11:30 am for marking his appearance. However the
petitioner will not be kept waiting for longer than one hour at
the police station during such visits;
iv. The petitioner shall furnish a telephone/mobile number to the
Jail Superintendent as well as SHO of local police station, on
which he can he contacted if required. The said telephone
number shall be kept active and operational at all the times by
the petitioner.
v. If the petitioner has a passport, he shall also surrender the
same to the Jail Superintendent
vi. Immediately upon the expiry of period of parole, the petitioner
shall surrender before the Jail Superintendent.
vii. The period of parole shall be counted from the day when the
petitioner is released from jail.
39. Accordingly, the present petition stands disposed of in above
terms.
40. A copy of this order be sent by the Registry to the concerned
Jail Superintendent for information.
41. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J

DECEMBER 22, 2023
Aanchal

Signature Not Verified W.P.(CRL) 2700/2023 Page 14 of 14

Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:22.12.2023
20:56:32
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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2/23/24, 11:32 AM Supreme Court Registry rejection Aruna Roy intervention application Prashant Bhushan contempt case flawed

The same was done in purported by exercise of the powers under Order XV
Rule 5 of the Supreme Court Rules, 2013
News Columns Interviews Law Firms Apprentice Lawyer Legal Jobs हिंदी ಕನ್ನ

Intervention Application: Meaning and Scope

A third party (the intervener) may file an intervention application to ‘interrupt’

the proceedings of a case and claim a right to hearing in the interest of justice.
The Code of Civil Procedure, 1908 (CPC) provides an extensive mechanism for
addition of third parties to a suit under Order 1 Rule 10 CPC. The CPC Rules on
addition of third parties are not only applicable to suits, but have also been
recognized to embody the general principles for impleadment in civil
proceedings other than suits.

Intervention and impleadment, though often erroneously used interchangeably,

are not one and the same. Both intervener and impleader are third parties.
However, an intervener may or may not have an interest in the outcome of the
proceedings and may merely assist the Court in the interest of justice. An
intervener does not file any pleadings or lead evidence himself. He assists the
Court only on the basis of the pleadings/documents filed by the parties without
becoming a party to the matter himself.

On the other hand, a party seeking impleadment in a case needs to show

personal interest and likelihood of prejudice if the case is decided without
hearing him. Once an impleadment application is allowed, the impleader is
joined as party defendant/respondent to the suit/proceedings, and is entitled
to file his pleadings and lead evidence in his own right.

Thus, the intervention applications are comparatively more liberally allowed

compared to impleadment applications, particularly in the matters of public
interest or constitutional importance. For a person to claim presence before the
Court, he must satisfy the Court about the necessity and benefits of his entering
appearance for effective disposal of the case in the interest of justice. At the
same time, it is well-recognised that the power of the Court to join any person
in any proceedings must be based on sound reasoning after due consideration
of the facts and circumstances of a particular case.

Registry’s lodging of intervention application under Order XV Rule 5

https://www.barandbench.com/columns/why-the-supreme-court-registrys-rejection-of-aruna-roys-intervention-application-in-prashant-bhushans-… 2/11
2/23/24, 11:32 AM Supreme Court Registry rejection Aruna Roy intervention application Prashant Bhushan contempt case flawed

Under Order XV Rule 5 (which applies to the petitions generally, and is seldom
exercised to scuttle petitions at the outset), the Registrar of the Supreme Court
Newsrefuse
“may Columns Interviews
to receive a petitionLaw
on Firms Apprentice
the ground that itLawyer
disclosesLegal Jobs हिंदी
no reasonable ಕನ್ನ

cause or is frivolous or contains scandalous matter.” When a

petition/application is rejected on the ground mentioned under Order XV Rule
5, it is said to be lodged under this provision.

In this case, while lodging the application under Order XV Rule 5, the Registry
has noted that the interveners have ostensibly based their locus for intervention
on the fact that the contempt petition involves issues of grave public
importance. After observing the same, the Registry has rejected the application
on the ground that “no reasonable cause” exists in the present case.

The order of the Registry lies upon the Supreme Court’s verdict in In re: Justice
CS Karnan versus Supreme Court of India to support its finding of “no
reasonable cause” in the intervention application. Interestingly, the Registry's
order does not state that the intervention application is either frivolous or
contains scandalous matter, the two other possible grounds for rejection of a
petition under Order XV Rule 5.

Multiple errors in the Registry’s approach

I argue that regardless of the merits of the intervention application filed by

Aruna Roy and other activists, the Registry has erroneously rejected the said
application by invoking its general powers under Oder XV Rule 5. I enunciate
basic fundamental errors in the Registry’s order, which render it perverse.

Firstly, it is important to underscore the fact that a holistic reading of the

Supreme Court Rules, 2013 suggests that a person is allowed to file an
intervention application in a pending case. Although there are no separate
Orders in Supreme Court Rules, which deal with intervention applications or
interveners at one place, as per Order I, Rule 2(1)(o), a ‘respondent’ includes an
intervener. Order V Rule 2(3) of the Supreme Court Rules, inter alia,
contemplates that an application for intervention in a suit, appeal or other
proceedings may be decided by a Single Judge sitting in Chambers. It is
pertinent to note that even if the intervention application is allowed by the
Chamber Judge, which permits the interveners to obtain documents produced
and relied upon by the petitioner, they cannot make oral submissions, without
the leave of the Court due to the bar under Order XVII Rule 3.

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2/23/24, 11:32 AM Supreme Court Registry rejection Aruna Roy intervention application Prashant Bhushan contempt case flawed

In the present case, the ideal recourse would have been to list the intervention
application before the judge in Chambers. However, rather than referring the
News to Columns
matter the Chamber Interviews
Judge in Law Firms
light Apprentice
of the Order Lawyer
V Rule Legal
2(3), the Jobs
Registry हिंदी
has ಕನ್ನ

rejected the application at the outset under Order XV Rule 5, which applies to
petitions generally, and is seldom exercised to scuttle petitions at the outset.
Once the Supreme Court Rules provide for a matter to be decided by the
Chamber Judge for a preliminary scrutiny, the Registry should have exercised
restraint in rejecting the application on the ground that it does not disclose any
reasonable cause.

Secondly, the reasoning for the rejection of the intervention application is solely
based on the finding that it discloses "no reasonable cause", which in turn, is
entirely based on the purported observations of the Supreme Court in the CS
Karnan case. Such approach by the Registry to rely upon a judicial precedent
alone to reject the instant intervention application is totally misplaced as
disclosure of "reasonable cause" in a particular case is always a question of fact,
which cannot be decided based on precedent alone without reference to the
facts.

To understand the meaning of ‘disclosure of reasonable cause’, it may be

worthwhile to refer to Order VII, Rule 11(a) CPC (though the said Rule does not
require disclosure of cause to be reasonable) which provides non-disclosure of
“cause of action” as one of the grounds to reject a suit. The Supreme Court,
while interpreting the scope of Order VII Rule 11 (a) CPC has consistently held
that whether a plaint discloses a cause of action is a question of fact, and to
determine the same, a court has to read the plaint as a whole taking the
averments therein as correct, and if it discloses some cause of action which
requires determination by the court, the mere fact that in the opinion of the
judge, the plaintiff may not succeed or is insufficient to prove the facts, cannot
be a ground for rejection of the plaint at the outset. (Liverpool & London SP& I
Association Ltd. v. MV Sea Success I & Anr and Mayar (HK) Ltd. & Ors. v. Owners
& Parties, Vessel M.V. Fortune Express & Ors )

Thus, the scope of non-disclosure of “reasonable cause” under Order XV Rule 5

of the Supreme Court Rules, 2013 is similar to order VII Rule 11(a) CPC.
Disclosure of cause of action, being a question of fact, must be decided based on
a reading of the petition alone for the purposes of lodgment under Order XV
Rule 5. Further, what is reasonable in one case may be unreasonable on the
other, which also needs a factual analysis.

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2/23/24, 11:32 AM Supreme Court Registry rejection Aruna Roy intervention application Prashant Bhushan contempt case flawed

The Registry in this case makes no observations on any of the averments in the
intervention application, or the lack thereof, on account of which, in its
News Columnsthe intervention
understanding, Interviews Law Firms
application Apprentice
has been Lawyer Legal Jobs“no हिंदी
held to disclose ಕನ್ನ

reasonable cause”. Such an approach is not only legally unsound, but also
arbitrary as the power exercised by the Registrar is a subordinate delegated
power, unlike the judicial power of the Court, and must be therefore exercised
liberally in favour of the petitioner, since it is in the interest of administration of
justice that all matters must be decided on merits by a judicial forum.

Fourthly, there was no occasion for the Supreme Court in CS Karnan to

interpret “reasonable cause” for maintaining an intervention application or the
scope of Order XV Rule 5 of the Supreme Court Rules, 2013. The observation
relied upon by the Registry in CS Karnan’s case was made in one of the interim
orders dated February 13, 2017, when the Court was not deciding any question
of law, and appear to be confined to the facts of the case, which were different
from the facts of the instant intervention application. The text of the order
dated 13.02.2017 passed by the Supreme court in C.S.Karnan’s case is as under:

“4. It is necessary to notice, that certain counsel, appeared on their own. We

enquired from them, whether they were duly authorised by Sri Justice C.S.
Karnan, and were in possession of a power of attorney to represent him. They
had no such authorization. These learned Counsel submitted, that they
proposed to file impleadment application on behalf of certain organization. The
oral prayer for impleadment is rejected.

“5. Since contempt proceedings are a matter strictly between the Court and the
alleged contemnor, anyone who enters appearance and disrupts the
proceedings of this case in future, should understand that he/she can be
proceeded against, in consonance with law. All that we need to say is, that no
one should appear in this matter, without due consent and authorization.”

It is clear from the above that the Supreme Court made these observations in
the context of some persons who had sought appearance on behalf of the
alleged contemnor himself, that too, without his due authorization or power of
attorney. No formal application for impleadment/intervention was filed and
further no third parties were claiming independent rights in the subject matter
of the contempt petition separately from the alleged contemnor, unlike the
present case. Thus, there was no occasion for the Court to opine on the

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2/23/24, 11:32 AM Supreme Court Registry rejection Aruna Roy intervention application Prashant Bhushan contempt case flawed

maintainability of an intervention application by third parties on their own

behalf and not on behalf of the alleged contemnor.
News Columns Interviews Law Firms Apprentice Lawyer Legal Jobs हिंदी ಕನ್ನ
A judgment cannot be read like a statute. Unless a decision declares, lays down
and/or interprets any provision directly, there is no ratio of the case and the
said decision ought not to be applied as a precedent in a later case by the Court
(Union of India and Ors. v. Dhanwanti Devi and Ors), much less by the Registry.
Thus, the observations in CS Karnan do not apply to the present intervention
application at all.

Finally, it is interesting to note that even the plain reading of the observations of
the CS Karnan case in their entirety as relied upon in the Registrar's order does
not support the reasoning of the Registry. The Supreme Court in CS Karnan's
case held that a contempt proceeding is "strictly between the court and an
alleged contemnor and anyone who enters appearance and disrupts the
proceedings of this case in future, should understand that he/she can be
proceeded against, in consonance with law."

It is clear that the Supreme Court did not shut out all
intervention/impleadment applications at the threshold even in that particular
contempt petition, much less declare any general law against filing of
intervention applications in contempt petitions. In fact, the foregoing
observation shows that a third party may not be barred in all contempt
proceedings if they do not cause disruption.

Thus, even following the reasoning in CS Karnan's case, the intervention

application ought to have been allowed to be taken up before the Chamber
Judge and the same has been erroneously lodged under Order XV Rule 5.

Further developments and lost right of appeal:

Meanwhile, after the rejection of the intervention application, the Supreme

Court heard the alleged contemnor and reserved orders on the following day.
Order XV Rule 5 allows the petitioner to make an appeal within 15 days of such
rejection. Since the Supreme Court has now held Prashant Bhushan guilty for
contempt, the interveners have lost the right to claim hearing in this case. Had
the Supreme Court not passed a final judgment but proceeded to further
continue the contempt proceedings on merits after admitting the same, it
would have been interesting to see if this order of the Registry rejecting the
intervention application, was taken in appeal before the Court

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 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST
GOVT. OF NCT OF DELHI
C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI
NEW DELHI

Complaint Case No. 335/2012

In the matter of:

1. UMESH CHAND SHARMA

2. RACHNA SHARMA
W/O UMESH CHAND SHARMA
R/O 240 PKT -8 SEC – 12
DWARKA, NEW DELHI
........…..complainant

Versus

DR. MANIKA KHANNA

A-41 CHANDER NAGAR
NEAR JANAKPURI WEST METRO STATION
JANAK PURI NEW DELHI 110058 .............Opposite Party

DATE OF INSTITUTION: 31.05.2012

JUDGMENT RESERVED ON: 04.08.2023
DATE OF DECISION: 08.08.2023

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member (Female)
Mr. Anil Kumar Koushal, Member (General)

Order passed by Ms. Sonica Mehrotra, President

ORDER

1
 12.04.2011 by Star Imaging And Path Lab New Delhi. The IVF procedure

admittedly failed and thereafter the records revealed that complainant

went to AIIMs in May 2011 and several other hospitals IVF Fertility

Research Center, Doctor Swarnakar Fertility Center And Jaipur Fertility

And Microsurgery Research Center, Jaipur In January 2012 during which

period she was diagnosed with multiple uterine fibroids and ovarian

cyst and was advised myomectomy and was referred to Max Hospital

under Dr. Vivek Marwah in whole treatment under whom she

underwent laparoscopic myomectomy with adhesiolysis with operative

hysteroscopy with resection of endometrial polyp on 14.02.2012 and

was discharged on 16.02.2012. Since the allegations of the complainant

is failed IVF and wrong diagnosis/medication for TB against the OP. Let

us firstly examine the nature and success rate of IVF.

“IVF as an alternate/artificial fertile procedure does not have 100% success

rate especially in women 35 years age and above as quality of Eggs also

starts declining as menstrual age progresses. The consent form, payment

schedule condition placed on record by OP all have disclaimers on their put

note saying that there is no certainty that a pregnancy will occur/ result

from these procedure and no assurance is given that any pregnancy will

result in the delivery of a normal living child. All the documents placed on

record by OP are signed by both complainants from documents 4.1 to 4.7.

10
OP has relied upon medical literature pertaining to GnHR analogues in

treatment of uterine fibroid in justification of the drug she had put her on

complainant during IVF procedure which reduced the size of fibroid in

uterus, secondly genital tuberculosis is known to cause infertility in 43% to

74 % of women of child bearing age group and in India the percentage is

19% and DNA-PCR Test result and empirical treatment accordingly gives an

excellent chance of early spontaneous conception in justification to the act

of the OP to put the complainant on ATT in April 2011 post failure of IVF

attempt in November 2010 as the complainant wife was known to have

had a history of genital tuberculosis”. The Hon’ble National Commission in

landmark judgement M Kocher vs Ispita Seal I (2018) CPJ 41 (NC) decided

on 12.12.2017 observed that IVF procedure is highly technical and success

rate is low in the cases of females above 35 years. In any given cycle,

chance of IVF success vary depending on age and personal health

circumstances and held that no cure/success in not negligence and

allowed the appeal of the doctor against order of Hon’ble State

Commission Delhi which had allowed the complaint. As per the settled law

in medical cases, it has been held in catena of judgment that no relief or

success in procedure does not imply medical negligence. After thorough

appreciation of documentary evidence placed on record before us by both

side, we observe that the complainant was suffering from bulky uterus with

11
 find the complaint devoid of merit and dismiss the same as no medical

negligence has been made out against OP on any account.

9. Let the copy of this order be made available to the parties on

application for free certified copy under the name of President of this

Commission as per guidelines of Hon’ble SCDRC.

10. Announced on 08.08.2023.

11. File be consigned to record room

Richa Jindal Anil Kumar Koushal Sonica Mehrotra

(Member) (Member) (President)

13
 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

CONSUMER CASE NO. 3 OF 2005

1. G. VIJAYASHANKAR & ANR.

Son of Shri. G. Gopalakrishnan Nair, Resident of "Sruthi"
No. 2/9, Anantha Ramakrishnan Street Devaraj Nagar,
Saligramam
Chennai - 600 093.
2. Ms. Chitra Vijayashankar
Wife of Mr. G. Vijayashankar, Resident of "Sruthi" No.
2/9, Anantha Ramakrishnan Street,
Devaraj Nagar, Saligramam
Chennai - 600 093. ...........Complainant(s)
Versus
1. MADRAS MEDICAL MISSION & ORS.
Which owns and manages: Institute of Reproductive
Medicine & Women's Health 4-A, 5th Floor, Dr. J.J.
Nagar,
Mogappair
Chennai - 600 050.
2. Dr. (Mrs.) Thankam Varma
Medical Director, Institute of Reproductive Medicine &
Women's Health (A Unit of Madras Medical Mission)
4-A, 5th Floor, Dr. J.J. Nagar
Mogappair, Chennai - 600 050.
3. Unioted India Insurance Co. Ltd.
No. 24, Whites Road,
Chennai - 600 014. ...........Opp.Party(s)

BEFORE:
HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
HON'BLE DR. S.M. KANTIKAR,MEMBER

For the Complainant :

For the Opp.Party :

Dated : 01 Apr 2021

ORDER

Mr. Rahul Sharma, Advocate

For Complainants :

-1-
 the pregnancy occurred due to ART techniques as beta HCG levels may be higher. He
further submitted that in India the Quadruplet tests, Integrated screening test and
comprehensive tests facilities were not available during 2005.

4. The Opposite Parties Nos. 1 & 2 relied upon the following judgements:

5. Savita Sachin Patil & Ors. Vs. Union of India & Ors., 2017 LawSuit (SC) 1070

6. M. Kochar Vs. ispita Seal & Anr., National Commission I (2018) CPJ 41 (NC)

7. K.L. Nijhawan & Anr. Vs Sir Ganga Ram Hospital & Ors., III (2009) CPJ 150 (NC)

8. Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors., I (2010) CPJ
29 (SC)

9. Dr. Harkanwaljit Singh Saini vs. Gurbax Singh and the National Insurance Co. Ltd.,
1986-2005 Consumer 8674 (NS)

6. DISCUSSION:

We have given our thoughtful consideration and perused the entire material on record
including the Medical Record and the Medical Literature.

(i) The Medical Record revealed that the patient signed ‘Patient Protocol for IVF Form’ on
13.11.2000, therein it was clearly mentioned that she was given suitable opportunities to take part
in counseling about the implications of the proposed treatment. The invasive techniques and
Karyotyping were discussed. On 01.07.2002 in the Medical Record, it was mentioned that in view
of the advanced maternal age NT/Triple Screen was suggested, however the couple ‘ decided to
leave things alone, patient did not agree for invasive procedures ’. It is also pertinent to note that
the couple suppressed the vital information that the daughter of patient’s first cousin of about 15
years of age was detected with Down’s syndrome.

ii) We have perused the expert opinion from the Medical Board, AIIMS, New Delhi, dated
06.01.2014 which observed and concluded that:

1. Triple screening was suggested in view of her advance maternal age (Page 90) but treatment
record does not reveal any documentation of test being performed or laboratory report of triple
screen test.

2. Patient treatment record (Page 86) dated 18 th June 2012 reveals that invasive techniques to
confirm karyotyping was discussed – CVS/Amnio-cordocentesis but no follow up could be traced
in the records.

Thus, it confirms the treating doctor suggested triple screening which the patient did not do.

iii) Admittedly the patient was conceived after 15 years of infertility, it was, thus, precious
pregnancy. She had previous missed abortion and after genetic counseling, she did not opt for the
invasive investigations to avoid miscarriage or losing the existing pregnancy. At the 11 th week of
pregnancy on 18.06.2002, a non-invasive NT scan ruled out to the risk of Down’s syndrome.

-5-
 Thereafter, the subsequent USG assessment was done during 18-20 weeks and no structural
abnormality was found. There was ample time for the couple to consider invasive tests which
could have usually done around 16-18 week gestation; as per literature invasive tests carry risk of
1 in 100 chances of abortion. The couple decided not to take the risk.

iv) Moreover, the instant pregnancy was twin gestation. At 5 th week of pregnancy one fetus
was destroyed internally- known as vanishing twin syndrome and the singleton pregnancy was
continued. Nuchal translucency (NT) screening increases chances of antenatal detection of Down
syndrome (DS) compared to maternal age-based screening. The NT scan was performed by
qualified Radiologist Dr. Lata at 11 th week. It was found to be within normal limits. We have
gone through some references from the International Journal of Ultrasound in Obstetrics and
Gynecology. The article on “Screening for Down syndrome based on maternal age or fetal nuchal
translucency: a randomized controlled trial in 39 572 pregnancies” Ultrasound Obstet Gynecol
2005; 25: 537–545

v) It is apparent from the record that during the year 2002, the treating doctor tried her best to
attempt the diagnosis of Down’s syndrome. In fact she was in tune with the time. It was the
limitation of the screening test and quality of the then available USG machines in India, which
showed drastic changes and advancement in the last decade. The much higher performance can be
achieved when ultrasound is combined with concurrent first-trimester four-marker biochemistry.

7. It is worth to rely upon few decisions of Hon’ble Apex Court on Medical Negligence. In the
case - Kusum Sharma and others v. Batra Hospital and Medical Research Centre and
Others, (2010) 3 SCC 480 held that:

‘the medical professionals are entitled to get protection so long as they perform their duties
with reasonable skill and competence and in the interest of the patients. The interest and welfare
of the patients have to be paramount for the medical professionals”.

In Achutrao Harbhau Khodwa Vs. State of Maharashtra, 1996 Vol 2 643 the Hon’ble Supreme
Court has held:

“The skill of medical practitioner differs from doctor to doctor. The nature of the profession
is such that there may be more than one course of treatment which may be advisable for
treating a patient. Courts would indeed be slow in attributing negligence on the part of a
doctor if he has performed his duties to the best of his ability and with due care and caution.
Medical opinion may differ with regard to the course of action to be taken by a doctor
treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical
profession and a court finds that he has attended on the patient with due care skill and
diligence and if the patient still does not survive or suffers a permanent ailment, it would be
difficult to hold the doctor to be guilty of negligence.”

In the case in hand the Complainant’s main allegation that proper genetic counseling was not done
by the treating doctor or the hospital. Factually for more than a decade the couple was under
treatment from different hospitals in India and abroad. The couple is highly qualified and had
adequate knowledge of various methods and the pros & cons of Assisted Reproductive
Techniques. Moreover, from the Medical Record of opposite party No.1 we note counselling of
couple was done and advised for the invasive tests for prenatal diagnosis of Down’s syndrome.

-6-
8. Based on the discussion above, in our considered view, it was an accepted standard of
practice in the year 2002. The Complainants fail to prove the act of omission or medical
negligence of the Opposite Parties. We find no merit, the Complaint stands dismissed.

There shall be no order as to costs.

......................J
R.K. AGRAWAL
PRESIDENT
......................
DR. S.M. KANTIKAR
MEMBER

-7-