Allahabad High Court
Raksha Ram & Anr. vs State Of U.P. Thru Prin. Secy. ... on 9 July, 2019
Bench: Devendra Kumar Upadhyaya, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 4
Case :- MISC. BENCH No. - 18610 of 2019
Petitioner :- Raksha Ram & Anr.
Respondent :- State Of U.P. Thru Prin. Secy. Medical & Health Deptt. & Ors
Counsel for Petitioner :- Ganga Prasad Mishra,Mukesh Shukla
Counsel for Respondent :- C.S.C.,Abhinav N. Trivedi
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Alok Mathur,J.
Heard learned counsel for the petitioners, learned State Counsel and Shri Abhinav N. Trivedi, learned counsel representing the King George's Medical University(herein after referred to as "K.G.M.U.") as also Gandhi Memorial and Associated Hospitals, K.G.M.U., Lucknow.
This petition presents a classic case of desire prevalent in our society to have a male child though such desire has been noticed by all sections of the society, including the sociologists, to be one of the major reasons for diminishing sex ratio. The petitioners have even chosen to take recourse to the extraordinary jurisdiction of this court under Article 226 of the Constitution of India to fulfill their such an unacceptable desire by a design which is reflected from the pleadings available on record.
It has been stated in the writ petition that the petitioner no.2 delivered a male child on 04.09.2017 in the hospital at K.G.M.U., however, the doctor, nurses and other staffs attending the petitioner no.2 at the time of delivery hatched a conspiracy and exchanged her male child with a female child born to another lady admitted in the said hospital on the said date, namely, Smt. Mala, w/o Dhani Ram. The alleged incident of exchange of child, as per the averments made in the writ petition, took place on 04.09.2017, however, from the pleadings available on record, it does not transpire that petitioners ever took any steps for recovering the male child allegedly born to them except by filing this petition and making certain unsubstantiated applications/representations to the police authorities and other State authorities, which have been annexed with this writ petition. All the said representations have been sent through Speed Post, postal receipts whereof have been annexed at page 30 which reveal that all such representations were made and sent only on 13.06.2019 from the Post Office at High Court, Lucknow. All the entire assertions made in the writ petitions are absolutely unsubstantiated and in fact appear to have been born out of fantacy and imagination of the petitioners.
Shri Abhinav N. Trivedi, on the basis of certain instructions received from the K.G.M.U. has submitted that the entire story in the writ petition has been cooked up falsely and the fact of the matter is that on 04.09.2017, petitioner no.2 was operated and through operation she gave a birth to a female child, which fact is clearly recorded in the records maintained in the hospital. The instructions received by Shri Abhinav N. Trivedi from the K.G.M.U. have been produced before the Court which are taken on record. The said instructions are accompanied by certain documents maintained by the hospital. The first such document bears a note prepared by the Pediatrician just after birth of the baby and she has recorded that a baby girl was born. The second such document is the record prepared by the staff nurse immediately after caesarean section which clearly records that petitioner no.2 was operated by Prof. Rekha Sachan and she gave a birth to a female child, which fact was also noted by the petitioner no.1 whose signatures are also present on the said document. The third such document is the record prepared by the Junior Resident, who was present and assisted the doctor during the operation in the operation theatre and record of such operation theatre again clearly records that a baby girl was born to the petitioner no.2. Shri Trivedi has further stated that as per the record available in the hospital the baby girl was handed over to the petitioner no.1 according to the settled procedure norms/rules of the hospital by the Staff Nurse and his signatures were also obtained in the register maintained for the said purpose.
All the aforesaid facts do not leave even an iota of doubt that the entire petition is nothing but a concoction and is a cooked up story to achieve the desire to have a male child.
In para-11 of the writ petition, averment has been made by the petitioners that before the petitioner no.2 was admitted in the hospital at K.G.M.U., the petitioners were informed by some IVF Centre that petitioner no.2 was carrying a male child in her womb. Not at one but at various places of the writ petition, a positive assertion has been made by the petitioners that the petitioner no.2 was carrying a male child before the delivery and as such it is clear that with the connivance of the doctor, nurses and other staff in the hospital at K.G.M.U., their male child has been exchanged with the girl child who was born to respondent no.8. Para 11 of the writ petition is reproduced here under:-
"11. That it is also relevant to mention here that before admitting in the hospital under the supervision of the opp.party nos.4 to 6 earlier the petitioners were informed by the Indira IVF Hazratganj Lucknow vide Code No. BLW 209, which was feed in the computer list gave information to the petitioners the boy has been present from the wedlock of the petitioners. After that the petitioner no.2 admitted in the hospital of the opp. party nos. 4 to 6 and boy was born but has been changed by the opp. party nos. 4 to 6 with their staff illegally and has been given to the opp. party nos. 7 and 8 and their daughter has been given to the petitioner no.2 in an illegal manner."
In the instructions produced before us by the learned counsel representing the K.G.M.U., it has categorically been stated that no patient by the name of Smt. Mala, w/o Dhani Ram was operated in the Major Elective OT as per the record and that the petition has been filed only to defame the institution.
It, thus, prima facie, appears that petitioner no.2 had undergone some clinical or medical test for determination of sex of the foetus. Such an act on the part of the petitioners as also on the part of the IVF Centre may amount to punishable offence under the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. We thus, notice that it is not only that the entire averments made in the writ petition appear to be absolutely false, concocted and incorrect and have been made only to satisfy the desire to have a male child but the assertions even go to the extent of showing the petitioners indulging in criminal acts in terms of the aforesaid Act, 1994.
We are constraint to observe after noticing the aforesaid facts that the writ petition is nothing but an attempt to abuse and misuse the process of the Court. The petition appears to have been propelled by burning desire of the petitioners to have a male child.
We, thus, dismiss the writ petition with costs, which is quantified to be Rs.50,000/-which will be deposited by the petitioners before the Registry of this Court within two months from today. In case the petitioners do not deposit the cost, the same shall be recovered by the Senior Registrar of this Court through the District Magistrate,Gonda as arrears of land revenue.
Having prima facie noticed the wrong doings by the petitioners leading to penal offence under the provisions of the Act, 1994, we hereby direct the District Magistrate Gonda to consider as to whether any action which may be warranted under law, including the action under Chapter-VII of the Act, 1994 needs to be taken. The District Magistrate while considering to take appropriate action against the petitioners will also consider taking action against the IVF Centre which finds mentioned in para-11 of the writ petition. In case the District Magistrate, Gonda finds that the action against the IVF Centre is to be taken by some higher or other authority, he may refer the matter to such authority accordingly.
At this juncture learned counsel for the petitioners has submitted that the cost in this case may be reduced as the petitioners belong to rural area and lack awareness being not so educated and that they are very poor.
Having regard to the aforesaid facts, it is directed that the petitioners shall deposit a sum of Rs.5000/- instead of Rs.50,000/-.
Order Date :- 9.7.2019
sanjay/
