Legal Advise/Free Suggestion: November 2012

Friday, November 16, 2012

How to pass juduciary examinaion.

Hi my friends

you deeply learn these subjects

1 cr.pc.
2 ipc
3 evidence
4 cpc
5 contract
6 jurisprudence.

Sunday, November 11, 2012

Format affidavit of gas connection in case of death

Affidavit

I, ABC Wife of Late Pt. xyz Sharma Resident of ........... Delhi, do hereby solemnly confirm and declare that my husband Pt. xyz expired on 03^rd November 2011, as per death certificate enclosed herewith. He was an INDANE customer with M/s etc Indane, Yamuna Vihar, Delhi, having Consumer No. 04444478 and S.V. No. 82514825639 dated .

DEPONENT

VERIFICATION

Verified at Delhi on this 11^th day of Nov, 2012 that the above contents are true to the best of my knowledge and belief and nothing has been concealed there from.

DEPONENT

Saturday, November 10, 2012

Medical Negligency - Negligency - civil wrong - negligence - negligence under india panel code 1860

Indian Penal Code and Medical Negligence

Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical

malpraxis in India.

A physician can be charged with criminal negligence when a patient dies from the effects of anesthesia during, an

operation or other kind of treatment, if it can be proved that the death was the result if malicious intention, or gross

negligence. Before the administration of anaesthesia or performance of an operation, the medical man is expected to

follow the accepted precautions.

In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his

patient to the best of his judgment. He is, however, not liable for an error judgment. The law expects a duly qualified

physician to use that degree of skill and care which an average man of his qualifications ought to have, and does not

expect him to bring the highest possible degree of skill in the treatment of his patients, or to be able to guarantee cures.

It has long been recognized that criminal liability of a physician may result from a high degree of negligent conduct.

What the law calls criminal negligence is largely a matter of degree; it is incapable of a precise definition. To prove

whether or not it exists is like chasing a mirage. It requires that any of the following to be established in a case of

criminal medical negligence.

“Gross Lack of competency or gross inattention, or wanton indifferences to the patient’s safety, which may arise from

gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and

selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient.”

(Hampton v State; State v Lester)

In R. v Bateman (1925), Dr. Bateman was prosecuted for manslaughter and the charges of negligence made against

him were:

i) Causing the internal ruptures in performing the operations of ‘version’;

ii) Removing part of the uterus along with the placenta;

iii) Delay in sending the patient to the infirmary.

The trial court convicted him. But the Court of Appeal held: “ ….. in order to establish criminal liability, the facts must

be such that, …. the negligence of the accused went beyond a mere matter of compensation between subjects and

should such disregard for the life and safety of others as to amount to a crime against the state and conduct

punishment.”

When a FIR (First Information Report) is filed against a doctor for the death of a patient who was under his treatment,

under this Indian Penal Code Section 304-A the doctor can be arrested. A doctor charged under this section can obtain

bail and if proved guilty, the doctor can be punished with a maximum of two years imprisonment or fine or both. But,

if the patient is alive, the doctor is charged under the Indian Penal Code Section 337 and 338.

The Indian Courts have been very careful not to hold qualified physicians criminally (instances of quacks for criminal

negligence are there) liable for patients’ deaths that are the result of a mere mistake of judgment in the selection and

application of remedies and when the death resulted merely from an error of judgment or an inadvertent death.

Read more: Consumer Protection Act and Medical Profession - Indian Penal Code and Medical Negligence

http://www.medindia.net/indian_health_act/consumer_protection_act_and_medical_profession_indian_penal_code_and

_medical_negligence.htm#ixzz24YioNqvr

Abstract

It is important to know what constitutes medical negligence. A doctor owes certain duties to the patient who consults

him for illness. A deficiency in this duty results in negligence. A basic knowledge of how medical negligence is

adjudicated in the various judicial courts of India will help a doctor to practice his profession without undue worry

about facing litigation for alleged medical negligence.

Keywords: Cconsumer protection act, negligence, reasonable care

INTRODUCTION

Lately, Indian society is experiencing a growing awareness regarding patient's rights. This trend is clearly discernible

from the recent spurt in litigation concerning medical professional or establishment liability, claiming redressal for the

suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the doctorpatient

relationship. The patient-centered initiative of rights protection is required to be appreciated in the economic

context of the rapid decline of State spending and massive private investment in the sphere of the health care system

and the Indian Supreme Court's painstaking efforts to Constitutionalize a right to health as a fundamental right. As of

now, the adjudicating process with regard to medical professional liability, be it in a consumer forum or a regular civil

or criminal court, considers common law principles relating to negligence, vitiated consent, and breach of

confidentiality. However, it is equally essential to note that the protection of patient's right shall not be at the cost of

professional integrity and autonomy. There is definitely a need for striking a delicate balance. Otherwise, the

consequences would be inexplicable.

In the context of obtaining processes, there is a deserving need for a two-pronged approach. On one hand, the

desirable direction points towards identification of minimum reasonable standards in light of the social, economical,

and cultural context that would facilitate the adjudicators to decide issues of professional liability on an objective basis.

On the other hand, such identification enables the medical professionals to internalize such standards in their day-today

discharge of professional duties, which would hopefully prevent to a large extent the scenario of protection of

patient's rights in a litigative atmosphere. In the long run, the present adversarial placement of doctor and the patient

would undergo a transformation to the advantage of the patient, doctor, and society at large.

WHAT A MEDICAL DOCTOR SHOULD KNOW ABOUT COPRA?

Who can file a complaint?

A consumer or any recognized consumer association, i.e., voluntary consumer association registered under the

Companies Act, 1956 or any other law for the time being in force, whether the consumer is a member of such

association or not, or the central or state government.

Who is a consumer?

A consumer is a person who hires or avails of any services for a consideration that has been paid or promised or partly

paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other

than the person hires or avails of the services for consideration paid or promised, or under any system of deferred

payment, when such services are availed of with the approval of the first mentioned person. This definition is wide

enough to include a patient who merely promises to pay.

What is a complaint?

A complaint is an allegation in writing made by a Complainant, i.e., a consumer that he or she has suffered loss or

damage as a result of any deficiency of service.

What is deficiency of service?

Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of

performance that is required to be maintained by or under any law for the time being in force or has been undertaken

to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Where is a complaint filed?

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A complaint can be filed in 1) the District Forum if the value of services and compensation claimed is less than 20 lakh

rupees, 2) before the State Commission, if the value of the goods or services and the compensation claimed does not

exceed more than 1 crore rupees, or 3) in the National Commission, if the value of the goods or services and the

compensation exceeds more than 1 crore rupees.

What is the cost involved in filing a complaint?

There is a minimal fee for filing a complaint before the district consumer redressal forums.

Is there any provision for appeal?

An appeal against the decision of the District Forum can be filed before the State Commission. An appeal will then go

from the State Commission to the National Commission and from the National Commission to the Supreme Court. The

time limit within which the appeal should be filed is 30 days from the date of the decision in all cases.

What are the powers of the consumer redressal forums?

The forums have a variety of powers. They are 1) the summoning and enforcing of the attendance of any defendant or

witness and examining the witness under oath, 2) the discovery and production of any document or other material

object producible as evidence, 3) the reception of evidence on affidavits, 4) the summoning of any expert evidence or

testimony, 5) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from

any other relevant source, 6) issuing of any commission for the examination of any witness, and 7) any other matter

which may be prescribed.

How does adjudication of liability take place?

The process before the competent forum will be set in motion in the following manner. When the Complainant files a

written complaint, the forum, after admitting the complaint, sends a written notice to the opposite party asking for a

written version to be submitted within 30 days. Thereafter, subsequent to proper scrutiny, the forum would ask for

either filing of an affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature,

and judicial decisions.

MEDICAL NEGLIGENCE - DEFINITIONAL ASPECTS

Negligence is simply the failure to exercise due care. The three ingredients of negligence are as follows:

1.The defendant owes a duty of care to the plaintiff.

2.The defendant has breached this duty of care.

3.The plaintiff has suffered an injury due to this breach.

Medical negligence is no different. It is only that in a medical negligence case, most often, the doctor is the defendant.

When does a duty arise?

It is well known that a doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty

arising out of tort law. In some cases, however, though a doctor-patient relationship is not established, the courts have

imposed a duty upon the doctor. In the words of the Supreme Court “every doctor, at the governmental hospital or

elsewhere, has a professional obligation to extend his services with due expertise for protecting life” (Parmanand

Kataria vs. Union of India[1]). These cases are however, clearly restricted to situations where there is danger to the life

of the person. Impliedly, therefore, in other circumstances the doctor does not owe a duty.

What is the duty owed?

The duty owed by a doctor towards his patient, in the words of the Supreme Court is to “bring to his task a reasonable

degree of skill and knowledge” and to exercise “a reasonable degree of care” (Laxman vs. Trimback[2]). The doctor,

in other words, does not have to adhere to the highest or sink to the lowest degree of care and competence in the light

of the circumstance. A doctor, therefore, does not have to ensure that every patient who comes to him is cured. He has

to only ensure that he confers a reasonable degree of care and competence.

Reasonable degree of care

Reasonable degree of care and skill means that the degree of care and competence that an “ordinary competent

member of the profession who professes to have those skills would exercise in the circumstance in question.” At this

stage, it may be necessary to note the distinction between the standard of care and the degree of care. The standard of

care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable

and need not necessarily conform to the highest degree of care or the lowest degree of care possible. The degree of

care is a variable and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a

given situation.

Thus, though the same standard of care is expected from a generalist and a specialist, the degree of care would be

different. In other words, both are expected to take reasonable care but what amounts to reasonable care with regard to

the specialist differs from what amount of reasonable care is standard for the generalist. In fact, the law expects the

specialist to exercise the ordinary skill of this speciality and not of any ordinary doctor. Though the courts have

accepted the need to impose a higher degree of duty on a specialist, they have refused to lower it in the case of a

novice.

Another question that arises is with regard to the knowledge that is expected from a doctor. Should it include the latest

developments in the field, hence require constant updating or is it enough to follow what has been traditionally

followed? It has been recognized by the courts that what amounts to reasonableness changes with time. The standard,

as stated clearly herein before requires that the doctor possess reasonable knowledge. Hence, we can conclude that a

doctor has to constantly update his knowledge to meet the standard expected of him. Furthermore, since only

reasonable knowledge is required, it may not be necessary for him to be aware of all the developments that have taken

place.

We have, until now, examined the duty of a doctor in so far as treating a patient is concerned or in diagnosing the

ailment. Doctors are, however, imposed with a duty to take the consent of a person/patient before performing acts like

surgical operations and in some cases treatment as well. To summarize, any act that requires contact with the patient

has to be consented by the patient. A duty of care is imposed on the doctors in taking the patient's consent. Naturally, a

question arises as to what is this duty of care. As per the judicial pronouncements, this duty is to disclose all such

information as would be relevant or necessary for the patient to make a decision. Therefore, the duty does not extend

to disclosing all possible information in this regard. Furthermore, this duty does not extend to warning a patient of all

the normal attendant risks of an operation. The standard of care required of a doctor while obtaining consent is again

that of a reasonable doctor, as in other cases.

When does the liability arise?

The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the

conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every

injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the

existence of a duty has been established, the plaintiff must still prove the breach of duty and the causation. In case

there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of

duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and

then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to

merely show that there exists a body of opinion which goes against the practice/conduct of the doctor.

With regard to causation, the court has held that it must be shown that of all the possible reasons for the injury, the

breach of duty of the doctor was the most probable cause. It is not sufficient to show that the breach of duty is merely

one of the probable causes. Hence, if the possible causes of an injury are the negligence of a third party, an accident,

or a breach of duty care of the doctor, then it must be established that the breach of duty of care of the doctor was the

most probable cause of the injury to discharge the burden of proof on the plaintiff.

Normally, the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence.

However, in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a

cast to treat the fracture, the principle of ‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for itself’) might come

into play. The following are the necessary conditions of this principle.

1.Complete control rests with the doctor.

2.It is the general experience of mankind that the accident in question does not happen without negligence. This

principle is often misunderstood as a rule of evidence, which it is not. It is a principle in the law of torts. When this

principle is applied, the burden is on the doctor/defendant to explain how the incident could have occurred without

negligence. In the absence of any such explanation, liability of the doctor arises.

Normally, a doctor is held liable for only his acts (other than cases of vicarious liability). However, in some cases, a

doctor can be held liable for the acts of another person which injures the patient. The need for such a liability may

arise when the person committing the act may not owe a duty of care at all to the patient or that in committing the act

he has not breached any duty. A typical example of a case where such a situation may arise is in the case of a surgery.

If a junior doctor is involved as part of the team, then his duty, as far as the exercise of the specialist skill is concerned,

is to seek the advice or help of a senior doctor. He will have discharged his duty once he does this and will not be

liable even if he actually commits the act which causes the injury. In such a case, it is the duty of the senior doctor to

have advised him properly. If he did not do so, then he would be the one responsible for the injury caused to the

patient, though he did not commit the act.

When there is no liability

A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact

that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of

judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts

as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all

spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is

situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not

seem wrong. If, however, due consideration of all the factors was not taken, then it would amount to an error of

judgment due to negligence.

JUDICIAL INTERPRETATION OF MEDICAL NEGLIGENCE LIABILITY

By and large the following legal issues have been addressed and responded to by different forums and Courts in India.

Charge of Medical Negligence against Professional Doctors

From the time of Lord Denning until now it has been held in several judgments that a charge of professional

negligence against the medical professional stood on a different footing from a charge of negligence against the driver

of a motor car. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor.

It is a known fact that with the best skill in the world, things sometimes went wrong in medical treatment or surgical

operation. A doctor was not to be held negligent simply because something went wrong. The National Commission as

well as the Apex Court in catena of decisions has held that the doctor is not liable for negligence because of someone

else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not

guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical

professionals. The Hon'ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Trimbak, AIR 1969 SC 128,

has held the above view that is still considered to be a landmark judgment for deciding a case of negligence. In the

case of Indian Medical Association vs. Santha, the Apex Court has decided that the skill of a medical practitioner

differs from doctor to doctor and it is incumbent upon the Complainant to prove that a doctor was negligent in the line

of treatment that resulted in the life of the patient. Therefore, a Judge can find a doctor guilty only when it is proved

that he has fallen short of the standard of reasonable medical care. The principle of Res-Ipsa-Loquitur has not been

generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in

deciding the case under this Act. In catena of decisions, it has been held that it is for the Complainant to prove the

negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all

reasonable doubts. Mere allegation of negligence will be of no help to the Complainant.[3]

What Constitutes Medical Negligence?

Failure of an operation and side effects are not negligence. The term negligence is defined as the absence or lack of

care that a reasonable person should have taken in the circumstances of the case. In the allegation of negligence in a

case of wrist drop, the following observations were made. Nothing has been mentioned in the complaint or in the

grounds of appeal about the type of care desired from the doctor in which he failed. It is not said anywhere what type

of negligence was done during the course of the operation. Nerves may be cut down at the time of operation and mere

cutting of a nerve does not amount to negligence. It is not said that it has been deliberately done. To the contrary it is

also not said that the nerves were cut in the operation and it was not cut at the time of the accident. No expert evidence

whatsoever has been produced. Only the report of the Chief Medical Officer of Haridwar has been produced wherein it

said that the patient is a case of post-traumatic wrist drop. It is not said that it is due to any operation or the negligence

of the doctor. The mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and

is supported by expert evidence. It is true that the operation has been performed. It is also true that the Complainant has

many expenses but unless the negligence of the doctor is proved, she is not entitled to any compensation.[4]

What is the Standard of Care?

It is now a settled principle of law that a medical practitioner will bring to his task a reasonable degree of skill and

knowledge and must exercise a reasonable degree of care. Neither the very highest nor the very lowest degree of care

and competence judged in the light of circumstances in each case is what the law requires. Judged from this yardstick,

post-operative infection or shortening of the leg was not due to any negligence or deficiency in service on the part of

the opposite party Appellant. Deficiency in service thus cannot be fastened on the opposite party.[5]

In a case that led to visual impairment as a side effect, the following observations were made. The literature with

regard to lariago clearly mentioned that the side effect of this medicine if taken for a longer duration can effect

eyesight but this is not a fact in this case. Besides, there is no expert evidence on record to show that use of this

medicine caused damage to the patient's eyesight. Even for argument's sake, if it is accepted that this medicine caused

damage to the patient's eyesight, if the Respondent-doctor is one who has advised his patient to use this medicine after

an examination in which he found the patient to be suffering from malaria, in that case as well the doctor-Respondent

cannot be held guilty of negligence or deficient in his service. However, as stated above in this case the medicine has

been used by the patient in low doses for a few days and there is no expert evidence to show that the use of medicine

has affected his eyesight. Therefore, the Complainant-Appellant has failed to prove that the Respondent was negligent

and deficient in his duty as a doctor.[6]

Proof of Medical Negligence

It has been held in different judgments by the National Commission and by the Hon'ble Supreme Court that a charge of

professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a

vehicle. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. It is a

known fact that even with a doctor with the best skills, things sometimes go wrong during medical treatment or in a

surgery. A doctor is not to be held negligent simply because something went wrong. It is an admitted fact that the

Complainant's eyesight was not restored after the operation was conducted by the Appellant but on this ground alone a

doctor can not be held negligent because even after adopting all necessary precautions and care the result of the

operation may not be satisfactory since it depends on various other factors. The contention of the Appellant was that

the patient was suffering from diabetes and blood pressure and in many such cases eyesight is not restored after the

operation however carefully it is done. In this case, there is nothing on record to show that something went wrong due

to an act of the Appellant-doctor. There is no evidence to come to the conclusion that the Appellant fell below the

standard of a reasonably competent practitioner in their field, so much so that their conduct might be deserving of

censure. The Appellant cannot be liable for negligence because someone else of better skill or knowledge would have

prescribed a different method of operation in different way. The evidence suggests that the Appellant has performed

the operation and acted in accordance with the practice regularly accepted and adopted by him in this hospital and

several patients are regularly treated for their eye problems. The Hon'ble Supreme Court in the case of Dr. Laxman

Balkrishna vs. Dr. Triambak, AIR 1969 Supreme Court page 128 has held the above view and this view has been

further confirmed in the case of the Indian Medical Association vs. Santha. The Apex Court and the National

Commission has held that the skill of a medical practitioner differs from doctor to doctor and it is an incumbent upon

the Complainant to prove that the Appellant was negligent in the line of treatment that resulted in the loss of eyesight.

A Judge can find a doctor guilty only when it is proved that he has fallen short of a standard of reasonable medical

care. The fact and circumstances of the case before us show that the Appellant has attended to the patient with due

care, skill, and diligence. Simply because the patient's eyesight was not restored satisfactorily, this account alone is not

grounds for holding the doctor guilty of negligence and deficient in his duty. It is settled law that it is for the

Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to

be proved beyond all reasonable doubt. Mere allegation of negligence will be of no help to the Complainant.[7]

The following cases of alleged medical negligence provide an insight into how the final decision is reached by the

judicial bodies. “All medical negligence cases concern various questions of fact, when we say burden of proving

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negligence lies on the Complainant, it means he has the task of convincing the court that his version of the facts is the

correct one”. No expert opinion has been produced by the Complainant to contradict the report of the Board of

Doctors. The appeal of the Complainant was dismissed with costs as “No expert opinion has been produced by

him.”[8] In a case of an improper union of the patella, no expert has been produced by the Complainant to prove

negligence of the opposite party. Thus, it cannot be said with exactness that treatment of the Complainant by the

opposite party was against the norms prescribed under the medical jurisprudence or that the opposite party in any way

was negligent or deficient in the performance of his duties.[8]

“Allegation of medical negligence is a serious issue and it is for the person who sets up the case to prove negligence

based on material on record or by way of evidence”. The complaint of medical negligence was dismissed because the

applicant failed to establish and prove any instance of medical negligence.[9] “Merely because the operation did not

succeed, the doctor cannot be said to be negligent” and the appeal of the doctor was allowed.[10] “A mere allegation

will not make a case of negligence unless it is proved by reliable evidence and is supported by expert evidence” and

the appeal was dismissed.[4] “The commission cannot constitute itself into an expert body and contradict the statement

of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical

treatise on which reliance could be based” and the Revision petition of the doctor was allowed.[1] In another case, an

X-ray report indicated a small opacity that similar to an opaque shadow that becomes visible for many causes other

than a calculus. It could not be assumed that still stone existed in the right kidney that had not been operated upon.

Under the circumstances, we do not think that any case of negligence has been made by the Complainant. This petition

is, therefore, allowed.[11]

The Need for Expert Evidence in Medical Negligence Cases

The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is

something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could

be based.[12] In this case there was a false allegation of urinary stone not being removed as shown by a shadow in the

xray “The burden of proving the negligent act or wrong diagnosis was on the Complainant” and the appeal was

dismissed in another case of alleged medical negligence as no expert evidence was produced.[13] The case discussed

below is not a case of apparent negligence on the part of the surgeon in conducting the operation, but about the quality

of the plate used for fixing the bone. In the present case, the Complainant has not produced any expert witnesses to

prove that there was any fault in the performance of the operations. Fixation of the bones by using plates is one of the

recognized modes of treatment in the case of fracture of the bones. If the opposite party has adopted the aforesaid

method, though subsequently the plate broke, negligence cannot be attributed to the doctor. This is not a case where

the wounds of the operation were infected or any other complication arose. Breaking of the plate approximately 6

months after it was placed cannot be attributed towards a negligent act of the doctor in performing the operation. The

District Forum rightly held that the Complainant had failed to prove his case.[14] There is nothing on the record to

suggest that there has been any negligence and/or deficiency in service on the part of the Appellant except the oral

submission of the Respondent/Complainant. In such cases, before coming to a positive finding, there must be expert

evidence on record as has been held both by the National Commission as well as the Apex Court.[15] “As per the

settled law, the onus to prove that there was negligence” deficiency in service on the part of the opposite parties, while

diagnosing and treating the Complainant, lay heavily on the Complainant. In the given facts, the Complainant has

failed to discharge the onus that was on him. The complaint was dismissed as the Complainant failed to discharge the

onus to prove negligence or deficiency in service.[16]

In medical negligence cases, it is for the patient to establish his case against the medical professional and not for the

medical professional to prove that he acted with sufficient care and skill. Refer to the decision of the Madhya Pradesh

High Court in the case of Smt. Sudha Gupta and Ors. vs. State of M.P. and Ors., 1999 (2) MPLJ 259. The National

commission has also taken the same view observing that a mishap during operation cannot be said to be deficiency or

negligence in medical services. Negligence has to be established and cannot be presumed. Refer to the decision of the

National Commission in the case of Kanhiya Kumar Singh vs. Park Medicare and Research Centre, III (1999) CPJ 9

(NC) – (2000) NCJ (NC) 12. A similar view has been taken by the MRTP Commission in the case of P.K. Pandey vs.

Sufai Nursing Home, I (1999) CPJ 65 (MRTP) – 2000 NCJ (MRTP) 268. Followed by this, refer to the Commission in

Vaqar Mohammed Khan and Anr. vs. Dr. S. K. Tandon, II (2000) CPJ 169.[17] Both the lower Fora have held that

there is no evidence brought on record by the Complainant to show that there was any negligence by the Respondent

while implanting the lens in the eye of the Complainant resulting in a persistent problem in the left eye.[18]

The Complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the

doctor. Unfortunate though the incident is, the Complainant needs to establish negligence on the part of the doctor to

succeed in a case like this. We may observe that there is hardly any cogent material to substantiate the allegation

contained in the petition of Complainant. Under the circumstances, we cannot but hold that the Complainant has failed

to prove the allegations against the opposite parties.[19] As held by the National Commission in Sethuraman

Subramaniam Iyer vs. Triveni Nursing Home and anr., 1998 CTJ7, in the absence of such evidence regarding the cause

of death and absence of any expert medical evidence, the Complainants have failed to prove negligence on the part of

the opposite parties.[20]

In order to decide whether negligence is established in any particular case, the alleged act, omission, or course of

conduct that is the subject of the complaint must be judged not by ideal standards nor in the abstract but against the

background of the circumstances in which the treatment in question was given. The true test for establishing

negligence on the part of a doctor is as to whether he has been proven guilty of such failure as no doctor with ordinary

skills would be guilty of if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated

that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with

sufficient care and skill and the burden of proving this rests upon the person who asserts it. The duty of a medical

practitioner arises from the fact that he does something to a human being that is likely to cause physical damage unless

it is not done with proper care and skill. There is no question of warranty, undertaking, or profession of a skill. The

standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising an

ordinary degree of professional skill. As per the law, a defendant charged with negligence can clear himself if he

shows that he acted in accordance with the general and approved practice. It is not required in the discharge of his duty

of care that he should use the highest degree of skill, since this may never be acquired. Even a deviation from normal

professional practice is not necessary in all cases evident of negligence.[21]

RECENT SUPREME COURT'S JUDGMENT

The recent judgment pronounced in Martin F. D'Souza V. Mohd. Ishfaq[22] by the Hon'ble Supreme Court of India

quite explicitly addresses the concerns of medical professionals regarding the adjudicatory process that is to be adopted

by Courts and Forums in cases of alleged medical negligence filed against Doctors.

In March 1991, the Respondent who was suffering from chronic renal failure was referred by the Director of Health

Services to the Nanavati Hospital in Mumbai for the purpose of a kidney transplant. At that stage, the Respondent was

undergoing hemodialysis twice a week and was awaiting a suitable kidney donor. On May 20, 1991, the Respondent

approached the Appellant doctor with a high fever, but he refused hospitalization despite the advice of the Appellant.

On May 29, 1991 the Respondent who still had a high fever finally agreed to get admitted into the hospital due to his

serious condition. On June 3, 1991, the reports of the urine culture and sensitivity showed a severe urinary tract

infection due to Klebsiella species (1 lac/ml) sensitive only to Amikacin and Methenamine Mandelate. Methnamine

Mandelate cannot be used in patients suffering from renal failure. Since the urinary infection was sensitive only to

Amikacin, an injection of Amikacin was administered to the Respondent for 3 days (from June 5, 1991 to June 7,

1991). Upon treatment, the temperature of the Respondent rapidly subsided. On June 11, 1991, the Respondent who

presented to the hemodialysis unit complained to the Appellant that he had slight tinnitus (ringing in the ear). The

Appellant has alleged that he immediately told the Respondent to stop taking the Amikacin and Augmentin and scored

out the treatment on the discharge card. However, despite express instructions from the Appellant, the Respondent

continued taking Amikacin until June 17, 1991. Thereafter, the Respondent was not under the treatment of the

Appellant. On June 14, 1991, June 18, 1991, and June 20, 1991 the Respondent received hemodialysis at Nanavati

Hospital and allegedly did not complain of deafness during this period. On June 25, 1991, the Respondent, on his own

accord, was admitted to Prince Aly Khan Hospital. The Complainant allegedly did not complain of deafness during this

period and conversed with doctors normally, as is proved from their evidence. On July 30, 1991, the Respondent was

operated upon for a transplant and on August 13, 1991, the Respondent was discharged from Prince Aly Khan Hospital

after his transplant. The Respondent returned to Delhi on August 14, 991 after his discharge.

On July 7, 1992, the Respondent filed a complaint before the National Consumer Disputes Redressal Commission,

New Delhi claiming compensation of an amount of Rs.12,00,000/- as his hearing had been affected. The Appellant

filed his reply stating, inter alia, that there was no material brought on record by the Respondent to show any co

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relationship between the drugs prescribed and the state of his health. The National Consumer Disputes Redressal

Commission passed an order on October 6, 1993 directing the nomination of an expert from the All India Institute of

Medical Sciences, New Delhi (AIIMS) to examine the complaint and give an unbiased and neutral opinion. AIIMS

nominated Dr. P. Ghosh who was of the opinion that the drug Amikacin was administered by the Appellant as a lifesaving

measure and was rightly used. It is submitted by the Appellant that the said report further makes it clear that

there has been no negligence on the part of the Appellant. However, the National Commission has come to the

conclusion that the Doctor was negligent.

Supreme Court's Appreciation with Regard to Medical Negligence Liability

According to the Supreme Court, cases both civil and criminal as well as in Consumer Fora, are often filed against

medical practitioners and hospitals complaining of medical negligence against doctors, hospitals, or nursing homes,

hence the latter would naturally like to know about their liability. The general principles on this subject have been

lucidly and elaborately explained in the three Judge Bench decisions of this Court in Jacob Mathew vs. State of Punjab

and Anr. (2005) 6 SCC 1. However, difficulties arise in the application of those general principles to specific cases.

For instance, in paragraph 41 of the decision, it was observed that: “The practitioner must bring to his task a reasonable

degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low

degree of care and competence is what the law requires.” Now what is reasonable and what is unreasonable is a matter

on which even experts may disagree. Also, they may disagree on what is a high level of care and what is a low level

of care. To give another example, in paragraphs 12 to 16 of Jacob Mathew's case (Supra), it has been stated that simple

negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as

well. For civil liability only, damages can be imposed by the Court but for criminal liability the Doctor can also be

sent to jail (apart from damages that may be imposed on him in a civil suit or by the Consumer Fora). However, what

is simple negligence and what is gross negligence may be a matter of dispute even among experts.

The law, like medicine, is an inexact science. One cannot predict with certainty an outcome in many cases. It depends

on the particular facts and circumstances of the case, and also the personal notions of the Judge who is hearing the

case. However, the broad and general legal principles relating to medical negligence need to be understood. Before

dealing with these principles two things have to be kept in mind:

1.Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for

them to decide cases relating to medical negligence. Moreover, Judges usually have to rely on the testimonies of other

doctors, which may not be objective in all cases. Since like in all professions and services, doctors too sometimes have

a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be

difficult to understand for a Judge, particularly in complicated medical matters and

2.a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should

certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment

but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and

decisions against doctors are counter productive and are no good for society. They inhibit the free exercise of judgment

by a professional in a particular situation.

The reasoning and decision

In the words of the Supreme Court, the facts of the case reveal that the Respondent was suffering from chronic renal

failure and was undergoing hemodialysis twice a week as treatment. He was suffering from a high fever but he refused

to get admitted into the hospital despite the advice of the Appellant. The Respondent was also suffering from a severe

urinary tract infection that could only be treated by Amikacin or Methenamine Mandelate. Since Methenamine

Mandelate cannot be used for patients suffering from renal failure, an injection of Amikacin was administered. A

perusal of the complaint filed by the Respondent before the National Commission shows that his main allegation was

that he suffered from a hearing impairment due to the negligence of the Appellant who allegedly prescribed an

overdose of Amikacin injections with no regard for the critical condition of the Respondent who did not warrant such

heavy dosage.

The case of the Appellant, however, is that the Complainant was referred to the Appellant by Dr. F.P. Soonawalla, the

renowned Urologist of Bombay. Dr. Soonawalla is an eminent doctor of international repute and he would not have

ordinarily referred a patient to an incompetent doctor. This is one factor that goes in favor of the Appellant, though of

course it is not conclusive. After examining the Complainant, the Appellant found that the Complainant was a patient

of chronic renal failure due to bilateral polycystic kidneys and the Appellant advised hemodialysis twice a week as an

out-patient. The Complainant was also investigated to find a suitable kidney donor. The Appellant has alleged in his

written statement filed before the National Commission that the Complainant was in a hurry to have a quick kidney

transplant and he was very obstinate, stubborn, and short-tempered.

The Appellant was of the view that the Respondent's infection could only be treated by an injection of Amikacin, as

Methenamine Mandelate could not be used due to his chronic renal failure. The Respondent's report also established

his resistance to all other antibiotics. In our opinion, it is clear that the Respondent already had renal failure before the

injection of Amikacin. Amikacin was administered after a test dosage only from June 5, 1991 and at this stage he did

not complain of any side effects and his temperature subsided rapidly. On June 11, 1991, the Respondent complained

to the Appellant of slight tinnitus or ringing in the ear. The Appellant immediately reviewed the treatment on the

discharge card in possession of the Respondent and also asked his attendant i.e., his wife, to stop the injection of

Amikacin and Cap. Augmantine verbally and also marked an X on the discharge card in his own handwriting on June

11, 1991 i.e., 3 days after discharge. Hence, as per the direction of the Appellant, the Respondent should have stopped

receiving injections of Amikacin after June 10, 1991, but on his own he kept taking Amikacin injections. On perusal of

the copies of the papers from the Cash Memo supplied by the Respondent as per annexure 4, it is in our opinion

evident that the Respondent continued to take the medicine against the advice of the Appellant, and had unilaterally

been getting injected as late as June 17, 1991, i.e., 7 days after he had been instructed verbally and in writing in the

presence of his attendant i.e., his wife and staff members of the hospital to stop injections of Amikacin/Cap.

Augmantine because of tinnitus as early as June 11, 1991. From the above facts, it is evident that the Appellant was

not to blame in any way and it was the non cooperative attitude of the Respondent and his continuing with the

Amikacin injections even after June 11, 1991 that was the cause of his ailment, i.e., the impairment of his hearing. A

patient who does not listen to his doctor's advice often has to face adverse consequences. It is evident from the fact that

the Respondent was already seriously ill before he met the Appellant. There is nothing to show from the evidence that

the Appellant was in any way negligent, rather it appears that the Appellant did his best to give good treatment to the

Respondent to save his life but the Respondent himself did not cooperate.

Several doctors have been examined by the National Commission and we have read their evidence, which is on record.

Apart from that, there is also the opinion of Prof. P. Ghosh of the All India Institute of Medical Sciences who had been

nominated by AIIMS as requested by the Commission, which is also on record. The opinion of Dr. Ghosh was that

there were many factors in the case of renal diseases that cause hearing loss and it is impossible to foretell the

sensitivity of a patient to a drug, thereby making it difficult to assess the contributions towards toxicity by the other

factors involved. He has also opined that the Amikacin dose of 500 mg twice a day for 14 days prescribed by the

doctor was a life-saving measure and the Appellant did not have any option but to take this step. Life is more

important than saving the function of the ear. Prof Ghosh was of the view that antibiotics were rightly given on the

report of the sensitivity test that showed the organisms were sensitive to Amikacin. Hence, the antibiotic was not

blindly used on speculation or as a clinical experiment. In view of the opinion of Prof Ghosh, who is an expert of the

All India Institute of Medical Sciences, we are clearly of the view that the Appellant was not guilty of medical

negligence but rather wanted to save the life of the Respondent. The Appellant was faced with a situation where not

only was there kidney failure of the patient, but also urinary tract infection and blood infection. In this grave situation,

which threatened the life of the patient, the Appellant had to take drastic steps. Even if he prescribed Amikacin for a

longer period than is normally done, he obviously did it to save the life of the Respondent. We have also seen the

evidence from other doctors as well as the affidavits filed before the National Commission. No doubt some of the

doctors who have deposed in this case have given different opinions, but in cases relating to allegations of medical

negligence, this Court has to exercise great caution. From these depositions and affidavits it cannot be said that the

Appellant was negligent. In fact, most of the doctors who have deposed or given their affidavits before the

Commission have stated that the Appellant was not negligent.

We see no reason to disbelieve the above allegations of the Appellant that on June 11, 1991 he had asked the

Respondent to stop taking Amikacin injections, and in fact this version is corroborated by the testimony of the Senior

Sister Mukta Kolekar. Hence, it was the Respondent himself who is to blame for having continued Amikacin after June

11, 1991 against the advice of the Appellant. Moreover, in the statement of Dr. Ghosh before the National Consumer

Dispute Redressal Commission it has been stated that it is by no means established that Amikacin alone can cause

deafness. Dr. Ghosh stated that there are 8 factors that can cause loss of hearing. Moreover, there are conflicting

versions about the deafness of the Respondent. While the Respondent stated that he became deaf in June 1991, most of

the Doctors who filed affidavits before the Commission have stated that they freely conversed with him in several

meetings much after 21st June and in fact up to the middle of August 1991.

The National Commission had sought the assistance of AIIMS to give a report about the allegations of medical

negligence against the Appellant. AIIMS had appointed Dr. Ghosh to investigate the case and submit a report and Dr.

Ghosh submitted a report in favor of the Appellant. Surprisingly, the Commission has not placed much reliance on the

report of Dr. Ghosh, although he is an outstanding ENT specialist of international repute. We have carefully perused

the judgment of the National Commission and we regret that we are unable to concur with the views expressed therein.

The Commission, which consists of laymen in the field of medicine, has sought to substitute its own views over that of

medical experts, and has practically acted as super-specialists in medicine. Moreover, it has practically brushed aside

the evidence of Dr. Ghosh, whose opinion was sought on its own direction, as well as the affidavits of several other

doctors (referred to above) who have stated that the Appellant acted correctly in the situation he was faced. The

Commission should have realized that different doctors have different approaches, for instance, some have more

radical approaches while some have more conservative approaches. All doctors cannot be fit into a straight-jacketed

formula and cannot be penalized for departing from that formula.

While this Court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against

doctors have increased by leaps and bounds in our country particularly after the medical profession was placed within

the purview of the Consumer Protection Act. To give an example, earlier when a patient who had a symptom of

having a heart attack would come to a doctor, the doctor would immediately inject him with Morphia or Pethidine

injection before sending him to the Cardiac Care Unit (CCU) because in cases of heart attack time is the essence of the

matter. However, in some cases the patient died before he reached the hospital. After the medical profession was

brought under the Consumer Protection Act vide Indian Medical Association vs. V.P. Shantha 1995 (6) SCC 651

doctors who administer the Morphia or Pethidine injection are often blamed and cases of medical negligence are filed

against them. The result is that many doctors have stopped giving (even as family physicians) Morphia or Pethidine

injections even in emergencies despite the fact that from the symptoms the doctor honestly thought the patient was

having a heart attack. This was out of fear that if the patient died the doctor would have to face legal proceedings.

Similarly, in cases of head injuries (which are very common in road side accidents in Delhi and other cities) earlier the

doctor who was first approached would started giving first aid and apply stitches to stop the bleeding. However, now

what is often seen is that doctors out of fear of facing legal proceedings do not give first aid to the patient, and instead

tell him to proceed to the hospital by which time the patient may develop other complications.

Hence, Courts and Consumer Fora should keep the above factors in mind when deciding cases related to medical

negligence, and not take a view that would be in fact a disservice to the public. The decision of this Court in Indian

Medical Association vs. V.P. Shantha (Supra) should not be understood to mean that doctors should be harassed

merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence.

In fact, in the aforementioned decision, it has been observed that (vide para 22): “In the matter of professional liability

professions differ from other occupations for the reason that professions operate in spheres where success cannot be

achieved in every case and very often success or failure depends upon factors beyond the professional man's control.”

It may be mentioned that the All India Institute of Sciences has been doing outstanding research in Stem Cell Therapy

for the last 8 years for treating patients suffering from paralysis, terminal cardiac condition, parkinsonism, etc., though

not yet with very notable success. This does not mean that the work of Stem Cell Therapy should stop, otherwise

science cannot progress.

We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether

District, State, or National) or by the Criminal Court, before issuing notice to the doctor or hospital against whom the

complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or

committee of doctors specialized in the field relating to which the medical negligence is attributed. Only after that

doctor or committee reports that there is a prima facie case of medical negligence should a notice be issued to the

concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be

negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the

parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal

action.

In the present case, the Appellant was faced with an extremely serious situation. Had the Appellant been only suffering

from renal failure, it is possible that a view could be taken that the dose prescribed for the Appellant was excessive.

However, the Respondent was not only suffering from renal failure but he was also suffering from urinary tract

infection and blood infection i.e., septicemia, which is blood poisoning caused by bacteria or a toxin. He also had

extremely high urea. In this extremely serious situation, the Appellant naturally had to take a drastic measure to

attempt to save the life of the Respondent. The situation was aggravated by the non cooperation of the Respondent who

seems to be of an assertive nature as deposed by the witnesses. Extraordinary situations require extraordinary

remedies. Even assuming that such a high dose of Amikacin would ordinarily lead to hearing impairment, the

Appellant was faced with a situation between the devil and the deep sea. If he chose to save the life of the patient

rather than his hearing surely he cannot be faulted. The allegation against the Appellant is that he gave an overdose of

the antibiotic. In this connection it may be mentioned that antibiotics are usually given for a minimum of 5 days, but

there is no upper limit to the number of days for which they should continue and it all depends on the condition of the

patient. Giving a lower dose of the antibiotic may create other complications because it can cause resistance in the

bacteria to the drug, and then it will be more difficult to treat. With regard to the impairment of hearing of the

Respondent, it may be mentioned that there is no known antibiotic drug without side effects. Hence, merely because

there was impairment in the hearing of the Respondent that does not mean that the Appellant was negligent. The

Appellant was desperately trying to save the life of the Respondent, which he succeeded in doing. Life is surely more

important than side effects.

For example many anti-tubercular drugs (e.g., Streptomycin) can cause impairment of hearing. Does this mean that TB

patients should be allowed to die and not be given the anti-tubercular drug because it impairs hearing? Surely the

answer will be negative.

The courts and Consumer Fora are not experts in medical science and must not substitute their own views over that of

specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors

who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity

cannot be blamed or branded as lacking in integrity or competence just because of some bad apples. It must be

remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite

the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be

guilty of medical negligence, unless there is some strong evidence to suggest that he is. On the facts of this particular

case, we are of the opinion that the Appellant was not guilty of medical negligence.

CONCLUSION

The Hon'ble Mr. Justice Markendeya Katju has done yeoman service for society by rendering this judgment. On one

hand, it sets at rest the speculative nature of our judicial adjudication of medical negligence liability and on the other, it

abundantly clarifies that unless there is prima facie evidence indicating medical negligence, notice either to a doctor or

hospital cannot be issued. At the same time, the core essence of the judgment makes it very clear that there cannot be

an assumption that doctors cannot be negligent while rendering care and treatment. I think this timely intervention

should be disseminated at a popular level so that the mandated Supreme Court's prescription will be observed more in

practice than in breach.

Footnotes

Source of Support: Nil

Conflict of Interest: None declared.

REFERENCES

1. AIR 1989 SC 2039.

2. AIR 1969 SC 128.

3. Smt. Savitri Singh v. Dr. Ranbir PD. Singh and others. 2004;(1) CPJ 25 (Bihar)

4. Smt. Vimlesh Dixit v. Dr. R.K. Singhal. 2004;(I) CPJ 123 (Uttaranchal)

5. Dr. Kamta Prasad Singh v. Nagina Prasad. 2000;(III) CPJ 283 (WB)

6. Ajay Kumar v. Dr. Devendra Nath. 2004;(II) CPJ 482.

7. Dr. Akhil Kumar Jain v. Lallan Prasad. 2004;(II) CPJ 504.

8. Amar Singh v. Frances Newton Hospital and Anr. 2001;(I) CPJ 8.

9. Mam Chand v. Dr. GS Mangat of Mangat Hospital. 2004;(I) CPJ 79 (NC)

10. Dr. (Smt) Kumud Garg v. Raja Bhatia. 2004;(I) CPJ 369.

11. Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(I) CPJ 153 (NC)

12. Dr. Karkanwaljit Singh Saini v. Gurbax Singh and another. 2003;(I) CPJ 153 (NC)

13. Ns Sahota v. New Ruby Hospital and Ors. 2000;(II) CPJ 345.

14. Sardool Singh v. Muni Lal Chopra and another. 1999;(I) CPJ 64 (Punjab)

15. Dr. Manjit Singh Sandhu v. Uday Kant Thakur and others. 2002;(III) CPJ 242.

16. Director, Rajiv Gandhi Cancer Institute and Research Centre and Ors. 2003;(I) CPJ 305 (Delhi)

17. Marble City Hospital and Research Centre and Ors. v. V.R. Soni. 2004;(II) CPJ 102 (MP)

18. Inderjeet Singh v. Dr. Jagdeep Singh. 2004;(III) CPJ 20 (NC)

19. Nirmalendu Paul v. Dr. P.K. Bakshi and anr. 2000;(III) CPJ 79.

20. Surinder Kumar (Laddi) and anr. V. Dr. Santosh Menon and Ors. 2000;(III) CPJ 517.

21. Rajinder Singh v. Batra Hospital and Medical Research Centre and Anr. 2000;(III) CPJ 558.

22. Martin F. D'Souza V. Mohd. Ishfaq. 2009;(2) Supreme Court 40.

________________________________________________________________________________________________

_______________________________

Accident Law; Auto Accident; Wrongful Death. Law; Consumer Credit Problems. Business Law

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I know these days Accident Law; Auto Accident; Wrongful Death; Consumer Credit Problems. Business Law; and matrimonial laws are very important for indian people.

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Format of Exemption or Adjournment

In The Court of Sh_________________________________________Court Delhi

In Re:

_______ Applicant/Complainant

Vs.

__________ Non-Applicant/Accused

Application on Behalf of Exemption From Personal Appearance of Complainant/Applicant ____________

Most Respectfully Showeth:

1. That abovementioned matter is pending adjudication before this Hon’ble Court and fixed for today.

2. That applicant is the complainant in the present matter and he had to appear before Hon’ble Court but due to his ill health, if wouldn’t be possible for him to appear before Hon’ble Court today Hence present application.

3. That reason of absence of applicant is neither willfull nor deliberate, but all because of said reason only.

PRAYER:

It is, therefore most respectfully prayed before this Hon’ble Court that applicant may be granted exemption from his personal appearance only for today so as to be the same in the interest of justice.

It is prayed accordingly.

Date: (Applicant)

Place: Through

Counsel for Complainant

Hindu Marriage Act 1955- Divorce - Cruelty - desertion

Hindu Marriage Act 1955

Sec-13 Divorce

1(1a) has, after the solemnization of the marriage treated the petitioner with cruelty: or

1(1b)has, deserted the petitioner for a continuous period of not less then two years immediately proceeding the presentation of the petition:

Cruelties are dangerous to life, limb or health. Cruelty may be physical or mental

Matrimonial duties and obligation Shoba Rani Vs. MadhukerReddy 1988 1 SCC 105: AIR 1988 SC 121: 1 SCJ 307

Mental Cruelty cannot be constituted by normal domestic quarrels Yashoda bai Vs K B Kalawkar AIR 1992 Kant 368

Burdon of proof of alleged cruelty as a ground for divorce lies on the petitioner N C Dastane Vs. S Dastane AIR 1975 SC 1534.

Cruelty in Matrimonial field may arise out of subtle and brutal variety of infinite modes like words, gestures, conduct, violence, Non violence, even silence Jagdish Mitter Vs Juna Saini 1978 HLR 304.

Even Refusal to have sexual intercourse with the spouse amounts to cruelty Sunil Kumar Vs Usha AIR 1994 MP 1 AT 3.

Refusal to attend domestic work etc, Cannot be in the ordinary circumstances an instance of Cruelty either mental of physical Smt Krishna Banargee Vs Bhanu Bikash Bandyopadhyay AIR 2001 Cal 154

Husband did not prosecute easier divorce petition on assurance of good behavior by wife by her parents and relatives, even the wife continued her hostility and misbehaved towards her husband, husband was entitled to decree for divorce Abha Agarwal Vs Sunil Agarwal AIR 200 All 377

Where criminal case was instituted by wife against her husband and accused persons were discharged on ground of territorial jurisdiction by the court and action was not pursued further by wife, and the wife refused to cook food and insulted husband in presence of his relations which proved that she did not wanted live with her husband, decree of divorce was granted Rukmanidevi vs Badri Narain, 1 (2002) DMC 552 (DB) (Raj).

DESERTION

Desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without consent of against the with of the other, it may furnish ground for the relief of granting divorce, is a factum of separation and the intention to bring cohabitation permanently to an end animus deserendi Smt Laxmi Mallik Vs Mayadhar Mallic. 1 (2002) DMC 172 (DB) (ori)

Decree of Divorce on the Ground of desertion connot be passed where the spouse is living separately because of his or her job or without any intention bring matrimonial relationship to an end Indra Vs S K Gagle AIR 1993 MP 59: 1993 Marri LJ 323.

Animus Deserendi- In case of desertion where the respondent wife left her matrimonial home and preferred to live with her parents, The Husband made all attempts to bring her back but failed and their relationship got sour on account of unreasonable demand and desire of wife and her father that husband should live with them as Ghar Jamaee here divorce could be granted Gajendra Vs Madhu mati AIR 2001 MP 299