Ms. Xxxx Vs the State of Karnataka — Medical Negligence | Karnataka HC (2024)

Ms. Xxxx Vs the State of Karnataka — Medical Negligence | Karnataka HC (2024)

1 - NC: 2024:KHC:19891 WP No. 623 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 7^TH DAY OF JUNE, 2024

BEFORE

THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 623 OF 2024 (GM-RES)

BETWEEN:

MS. XXXX AGED ABOUT 13 YEARS REPRESENTED BY HER FATHER AND NATURAL GUARDIAN MR SYED AHMED AGED ABOUT 55 YEARS S/O MR BUDAN SAHEB RESIDING AT SANNA BYANAD KERI SHIRALAKOPPA, SHIKARIPURA TALUK SHIVAMOGGA DISTRICT KARNATAKA 577428

…PETITIONER

(BY SMT. NIDHISHREE B V., ADVOCATE)

AND:

Digitally signed by VEDAVATHI A K Location: High Court of Karnataka

THE STATE OF KARNATAKA THROUGH THE SHIRALAKOPPA POLICE STATION SHIKARIPURA SUB DIVISION SHIVAMOGGA 577428

SHIMOGA INSTITUTE OF MEDICAL SCIENCES SAGAR ROAD, MISSION COMPOUND SHIVAMOGGA, KARNATAKA 577201 REPRESENTED BY ITS MEDICAL SUPERINTENDENT.

MCGANN TEACHING DISTRICT HOSPITAL SAGAR ROAD, MISSION COMPOUND SHIVAMOGGA, KARNATAKA 577201 REPRESENTED BY ITS MEDICAL SUPERINTENDENT.

THE DISTRICT LEGAL SERVICES AUTHORITY, SHIVAMOGGA, THIRD FLOOR

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NEW ANNEX BUILDING DISTRICT COURT COMPLEX SHIVAMOGGA 577201 EMAIL [email protected] REPRESENTED BY ITS MEMBER SECRETARY

THE DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT GOVERNMENT OF KARNATAKA (THROUGH THE KARNATAKA STATE INTEGRATED CHILD PROTECTION SOCIETY) M S BUILDING, BENGALURU 560001 REP. BY ITS PRINCIPAL SECRETARY

THE CHILD WELFARE COMMITTEE (CWC) SHIVAMOGGA C/O DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, SHIVAMOGGA ALKOLA, SHIVAMOGGA KARNATAKA 577204

DISTRICT CHILD PROTECTION UNIT, SHIVAMOGGA OBSERVATION HOME BUILDING 100 FEET ROAD, HALKOLA SHIVAMOGGA 577204 EMAIL [email protected]

…RESPONDENTS

(BY SRI. SUDEV HEGDE, AGA FOR R1 & R5.)

THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R2 AND 3 - MCGANN TEACHING DISTRICT HOSPITAL, SHIVAMOGGA, TO ADMIT THE PETITIONER AND TAKE NECESSARY MEDICAL STEPS TO TERMINATE THE PREGNANCY ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

In this petition, the petitioner seeks the following reliefs:

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" A. Issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the second and third respondents - McGANN Teaching District Hospital, Shivamogga, to admit the petitioner and take necessary medical steps to terminate the pregnancy;

B. Issue a Writ of Mandamus or any other appropriate Writ, order or direction directing the third respondentMcGANN Teaching District Hospital, Shivamogga to preserve the terminated foetus/product of conception for the purpose of DNA testing and analysis;

C. Issue a Writ of Mandamus or any other an appropriate Writ, order or direction directing the first respondent - Shiralakoppa Police Station, to take any and all steps to conduct DNA tests at the Regional Forensic Science Laboratory, Eastern Range Doddabathi, Davanagere or at the State Forensic Laboratory, Madivala, Bengaluru of the terminated foetus/product of conception for the purpose of investigation and trial in crime No.0280/2053 on the file of the first respondent produced as Annexure -B;

D. Issue a Writ of Mandamus or any other an appropriate Writ, order or direction directing the fourth respondent - District Legal Services Authority, Bengaluru to disburse a sum of Rs.3,00,000/- (Rupees Three Lakhs only) to the petitioner under the Karnataka Victim Compensation Scheme, 2011;

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E. Issue a Writ of Mandamus or any other an appropriate Writ, order or direction directing the fifth respondentKarnataka State Integrated Child Protection Society, to disburse a s um of Rs.75,000/(Rupees Seventy Five thousand only) and /or any other further amounts to the petitioner in order for her to meet the expenses of medical treatments, counseling services, and any other medical care as she may require;

F. Grant such or other reliefs as this Hon'ble Court deems fit in the facts and circumstances of the above case as also compensation for her losses and costs in the above, in the interests of justice and equity."

Heard the learned counsel for the petitioner and learned AGA for respondents and perused the material on record.

In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel appearing for the petitioner invited my attention to the interim order dated 10.01.2024 in order to point out that directions were issued to examine whether premature termination of pregnancy was permissible. In this context, it is submitted that subsequent to the said order, the child has been delivered by the petitioner and as such, prayer Nos. A and B sought for by the

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petitioner do not survive for consideration any longer. It is also submitted that due to passing over of the child upon premature delivery, prayer No.C sought for by the petitioner also does not survive any more. It is further submitted that insofar as prayer Nos. D and E are concerned by which the petitioner seeks direction to respondent Nos. 4 and 5 to disburse a sum of Rs.3,75,000/(Rupees Three lakhs seventy five thousand only) in terms of the Karnataka Victims Compensation Scheme, 2011, necessary directions may be issued to respondent Nos. 4 and 5 in this regard and the petition be disposed of accordingly.

In support of her contention, learned counsel for petitioner place reliance upon the following judgments of this Court passed namely :

(i) WP No.376/2019 decided on 04.02.2019 in the case of Miss L vs. State of Karnataka represented by its Principal Secretary and others reported in 2019 SCC online KAR 3520,

(ii) WP No.29562/2019 decided on 19.07.2019 in the case of Jyothi N vs. State of Karnataka, Rep by Chief Secretary and Others reported in 2019 SCC online KAR 1222

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(iii) WP.No.112958/2019 decided on 26.08.2019 in the case of Miss. A vs. The State of Karnataka, Department of Health and Family Welfare and Others reported in ILR 2020 KAR 272.

Per contra, learned AGA for respondent submits that

this Court may be proceed to pass appropriate orders taking into consideration the facts and circumstances and judgments relied upon by the petitioner.

In view of the facts and circumstances, I pass the

following:

ORDER

a. Prayer Nos. A,B and C sought for by the petitioner do not survive for consideration any longer and the same are hereby disposed as having become infructuous;

b. Respondent No.4 is directed to pay a sum of Rs.3,00,000/- (Rupees Three lakhs only) in favour of the petitioner under Karnataka Victims Compensation Scheme, 2011 within a period of six weeks from today.

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c. Respondent No.5 is directed to pay a sum of Rs.75,000/- (Rupees Seventy five thousand) to the petitioner within a period of six weeks from today.

Subject to the above said direction, the petition stands disposed of .

Sd/JUDGE

SSD List No.: 1 Sl No.: 45