State Vs Kamala Behera

3 . The facts of the case are that the plaintiff filed Title Suit No.43/13 of 2002-04 stating that she approached defendant no.2, the Medical Officer then working at Nakatideul P.H.C. to undergo sterilization operation to prevent pregnancy. After necessary checkup the sterilization operation was conducted by defendant no.2 on 21^st November 1997 with the assurance that said operation was successful and plaintiff would not conceive any child in future. To that effect a certificate dated 2^nd December 1997 (Ext.1) was issued to the plaintiff stating that she has undergone Tubectomy operation vide Sl.No.77 of 1997-98. But despite such operation undertaken by the plaintiff, the plaintiff was conceived again after two years and when she approached defendant no.2, he advised her to go for abortion by

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stating that such Tubectomy operation conducted became unsuccessful. The plaintiff could not prefer for abortion due to various reasons and on 4^th August 2000 she gave birth to a male child.

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4 . It is stated by the plaintiff that she belongs to a poor family below the poverty line and her husband is a daily labourer. They are unable to maintain their children, who already have two daughters and

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RFA No.248 of 2007 Page 2 of 15

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Signature Not Verified

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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two sons previously and now maintaining the 5^th child would be difficult on their part due to their poor financial condition. So she made a representation to the Chief District Medical Officer, Sambalpur for financial help towards maintenance of 5^th child. But, no one pay any heed to the same.

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5 . The State-defendants have contested the case by filing their written statement denying the claim of the plaintiff for compensation. Defendant no.2 denied any negligence or fault on his part for the operation conducted on the plaintiff. It is submitted that the said operation was successful without any complications in the medical term and the pregnancy subsequent to the operation may be due to spontaneous canalization of the fallopian tube of the plaintiff.

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6 . One witness each from both sides were examined as P.W.1 and

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D.W.1 respectively, who are the plaintiff and defendant no.2. The

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learned trial court framed six issues for adjudication, which are as

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follows:

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“1. Has the plaintiff any cause of action for the suit?

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Is the suit maintainable in present form? 3. Has defendant no.2 neglected in conducting sterilization operation of plaintiff?

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Are defendants liable to pay the damages and maintenance as claimed for by the plaintiff?

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Signature Not Verified

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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Whether getting conceived after successful sterilization operation makes the same liable to defendants to pay damages?

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What other relief the plaintiff is entitled to?”

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7 . While answering Issue No.3, 4 & 5, which are the vital issues for consideration, the learned trial court has given findings in favour of the plaintiff’s contention regarding Ext.A, the consent application given by the plaintiff before conducting her operation. There is a declaration made in Ext.A to the effect that the operation, which is to be conducted on the plaintiff, may invite danger for her and there is possibility of failure in the operation. The learned trial court while dealing with such declarations made under Ext.A by the plaintiff before going for operation, has answered that since she is an illiterate lady was unable to understand the contents thereof appropriately before putting her L.T.I. on the same. In in the opinion of the learned trial court, conceiving by the plaintiff after sterilization operation would be attributable to medical negligence on the part of the defendants and since the plaintiff was a poor lady living below the poverty line, the defendants are liable to pay compensation for their fault in making the operation completely successful. It is stated by the learned trial court that suo motu recanalization of fallopian tube of the

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Signature Not Verified

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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plaintiff after the operation was conducted could not be any way faulted with the actions of the plaintiff and thereby the sterilization operation having been failed, the contents of Ext.A could not be held as a bar for saving the defendants from their negligence.

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8 . Mr.Tripathy, learned Addl. Government Advocate submits on behalf of State-Appellant that getting conceived after the Tubectomy operation of the plaintiff was always a possibility remained there for which the surgeon cannot at all be attributed of negligence. He further submits that the reading of the declarations under Ext.A to attribute tortious negligence on the part of the defendants is a mistake committed on the part of the trial court. Since there is always a chance of failure of the operation, the application signed by the plaintiff as per Ext.A has specifically mentioned in that regard.

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9 . Conversely, Mr.Jena, learned counsel for the plaintiff submits that she being an illiterate rustic lady, had undergone the sterilization operation on the assurance that she would not be conceived in future. According to Mr.Jena, the plaintiff compromised sustenance of pain and suffering due to the operation only for the reasons that she and her family is unable to maintain any more child out of their scanty income and poor financial conditions. She underwent the operation with full

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Signature Not Verified

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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assurance given by defendant no.2 that she will not be conceived in future and therefore, the failure of operation in conceiving and giving birth the 5^th child would be the burden of the plaintiff for his maintenance and so the learned trial court taking note of all such factors has rightly directed for payment of compensation.

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10 . As stated above, the admitted fact remains that the plaintiff underwent Tubectomy operation on 21^st November 1997 and she gave birth to the 5^th child on 4^th August 2000. That means around two years after the operation, she was conceived again despite this sterilization operation was successful in the opinion of defendant no.2. Defendant

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no.2 as D.W.1 has explained that the operation of the plaintiff conducted on 21^st November 1997 was without any complications and it was successful as per the medical terms. But the success is subject to certain degrees of failure because of the peculiarity of the human body to re-correct itself. D.W.1 has further explained that there are instances of failure of sterilization operation because of suo-motu recanalization of the operated fallopian tube in the human body and this is a medically accepted fact that such suo motu recanalization occurs in around four persons out of one thousand operations. It is therefore the declaration under Ext.A clearly states the possibility of

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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failure of sterilization operation even the same is successful. The option is always open for the person concerned knowing the chance of failure and the option is further open to get abortion of the unwanted fetus in terms of the Medical Termination of Pregnancy Act.

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11 . Ext.A, the declaration given by the plaintiff is an admitted document. In the cross-examination of D.W.1, the plaintiff could not elicit any statement either contrary to the declarations under Ext.A or denying anything about the sterilization operation as unsuccessful.

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12 . Here Mr.Jena, learned counsel for the plaintiff relies on the decision in State of Haryana vrs. Santra, (2000) 5 SCC 18 2. He submits that in a similar case, where an unwanted child was born after sterilization operation was performed, the State Government was directed to pay the maintenance cost for bringing up said child. Relying on the said decision, it is submitted on behalf of the plaintiff that in a developing country like ours and particularly when the plaintiff is living below the poverty line, the public policy demands

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that the Government has to give damages on account of failed sterilization operation and for birth of unwanted child. Since it is the defendants’ negligence that results birth of 5^th child to the plaintiff, the

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Signature Not Verified

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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public policy should be in favour of the poor lady to recover damages in respect of the maintenance costs of the child.

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13 . The Hon’ble Supreme Court in the State of Punjab vrs. Shiv

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Ram and others, (2005) 7 SCC 1, have dealt with a similar issue relating to tortious liability of the State for negligence due to failure in sterilization operation. It is observed that the methods by which the cause of failure of sterilization operation may be ascertained so as to determine whether there was negligence. The Supreme Court have also referred to the decision of Santra (supra) and distinguished the same on the ground that in that case the lady had offered herself for complete sterilization and both fallopian tubes of her should have been operated where only the right fallopian tube was operated and the left one was left untouched.

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14 . In Shiv Ram’s case (supra), it is observed as follows:

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“13. In The Essentials of Contraceptive Technology , written by four doctors and published by the Center for Communication Programs, the Johns Hopkins School of Public Health in July 1997, certain questions and answers are stated. Questions 5 and 6 and their answers, which are relevant for our purpose, read as under:

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“ 5. Will female sterilisation stop working after a time? Does a woman who had a

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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sterilisation procedure ever have to worry about getting pregnant again ?

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Generally, no. Female sterilisation should be considered permanent. Failure rates are probably higher than previously thought however. A major new US study found that the risk of pregnancy within 10 years after sterilisation is about 1.8 per 100 women — about 1 in every 55 women . The risk of sterilisation failure is greater for younger women because they are more fertile than older women. Also, some methods of blocking the tubes work better than others. Methods that cut away part of each tube work better than spring clips or bipolar electrocoagulation (electric current). Effectiveness also depends on the skill of the provider.

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The same US study found that 1 of every 3 pregnancies after sterilisation was ectopic. If a woman who has had sterilisation ever thinks that she is pregnant or has an ectopic pregnancy, she should seek help right away .

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(underlining [ Ed. : Herein italicised.] by us)

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6. Pregnancy after female sterilisation is rare but why does it happen at all ?

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The most common reason is that the woman was already pregnant at the time of sterilisation . Pregnancy can also occur if the provider confused another structure in the body with the fallopian tubes and blocked or cut the wrong place. In other case pregnancy results because clips on the tubes come open, because the ends of the tubes grow back together, or because

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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abnormal openings develop in the tube, allowing sperm and egg to meet.”

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16. In Medico-legal Aspects in Obstetrics and Gynaecology , edited by three doctors, Chapter 18, deals with medico-legal problems in sterilisation operations. It is stated therein that there are several methods of female sterilisation of which one that will suit the patient and the surgeon/gynaecologist should be selected. In India, Pomeroy's method is widely practised. Other methods include Madlener's, Irving's, Uchida's methods and so on. The text further states that failure is one of the undesirous outcomes of sterilisation. The overall incidence of failure in tubectomy is 0.4 per 100 women per year. The text describes the following events wherefrom sterilisation failure usually results:

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( i ) Spontaneous recanalisation or fistula formation is perhaps the most common cause of failure. Though these are generally non-negligent causes of failure, it is very difficult to convince the patient if they are not informed beforehand about the possibility.

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( ii ) Undetected pregnancy at the time of sterilisation is an indefensible offence. To avoid such incidence, tests to detect pregnancy should be done before sterilisation operation is undertaken.

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( iii ) Imperfect occlusion of the tube is a technical loophole which may result in an unwanted pregnancy. The chance is particularly high in laparoscopic methods. If a gynaecologist fails to place the ring on any one of the tubes due to improper visualisation, he

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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or she must inform the patient and her husband, and some other contraceptive method should be advised.

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( iv ) Occlusion of the wrong structure(s) e.g. round ligament is a common, indefensible error which may particularly happen if the surgeon is inexperienced. This is more frequent in laparoscopic methods where even confirmation of the structure by biopsy is difficult, in case of doubt.

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17. It is thus clear that there are several alternative methods of female sterilisation operation which are recognised by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and least confinement in the hospital. However, none is foolproof and no prevalent method of sterilisation guarantees 100% success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative textbooks on gynaecology and empirical researches which have been carried out recognise the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognised and accepted ones. The technique which may be foolproof is the removal of the uterus itself but that is not considered advisable. It may be resorted to only when such procedure is considered necessary to be performed for purposes other than merely family planning.

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25. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilisation

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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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.

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27. Mrs K. Sarada Devi, the learned counsel appearing for the plaintiff-respondents placed reliance on a two-Judge Bench decision of this Court in State of Haryana v. Santra [(2000) 5 SCC 182 : JT (2000) 5 SC 34] wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having given birth to an unwanted child on account of failure of sterilisation operation. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilisation and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts.

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29. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.

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30. The cause of action for claiming compensation in cases of failed sterilisation operation arises on account of negligence of the surgeon and not on account of childbirth. 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 the sterilisation 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.

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31. For the foregoing reasons, we are of the opinion that the judgments and the decrees passed by the High Court and the courts below cannot be sustained. The trial court has proceeded to pass a decree of damages in favour of the plaintiff-respondents solely on the ground that in spite of the plaintiff Respondent 2 having undergone a sterilisation operation, she became pregnant.

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Signature Not Verified

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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No finding has been arrived at that will hold the operating surgeon or its employer — the State, liable for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has, therefore, to be allowed and the judgment and decree under appeal have to be set aside.”

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15 . It is not clear in the given facts of the case at hand whether the fallopian tubes of the plaintiff were removed. However, as per the statement of D.W.2 in his evidence, the reason stated by him is suo motu recanalization of the fallopian tube which implies the fact that the fallopian tubes of the plaintiff were remained intact with certain medical evasion. When the fact of pregnancy of the plaintiff subsequent to the operation, i.e. after two years, has been admitted, there would be less chance of negligence on the part of the surgeon and it shows that the fallopian tubes of the plaintiff were remained intact. The medical evasions in the process of pregnancy of the plaintiff is though not brought on record in detail, also has not been attempted by the plaintiff to be brought with all details that the negligence is attributed to the surgeon in that respect.

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16 . Moreover, when there was a clear mention in the declaration

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under Ext.A given by the plaintiff before the operation was undertaken, the same cannot be simply brushed aside for the reason

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Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cutt ack Date: 12-Sep-2025 17:38:25

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that the plaintiff was an illiterate lady and put her L.T.I. on the same. The declaration further shows that the same were read over and explained to the plaintiff, who put her LTI by understanding the contents thereof. It is not wise on the part of the Court to discard the same simply for the reason that the plaintiff has put her L.T.I. on the same. After all the surgeon (Defendant No.2) has admitted in his evidence that there was always possibility of failure in sterilization operation and instances are there to the extent of four persons out of one thousand cases. So to fix tortious liability for negligence on the part of the doctor cannot be attributed. As per the principles explained in Shiv Ram’s (supra) case, even though considering the status of the plaintiff as a poor lady living below the poverty line, her prayer to get compensation in lieu of maintenance of the unwanted child cannot be allowed, without any established fault committed on the part of the surgeon who conducted the operation.

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17 . In the result, therefore, the appeal succeeds and the impugned judgment is set aside.

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( B.P. Routray)

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C.R.Biswal, A.R.-cum-Sr.Seretary

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RFA No.248 of 2007 Page 15 of 15

State v. Kamala Behera

Case brief

What is this about?

What did the court decide?

State v. Kamala Behera

Case brief

What is this about?

What did the court decide?

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What the court decided

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