Madras High Court
Dr.Uma Maheswari vs Inspector Of Police on 20 April, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.04.2018 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN Crl. OP (MD)No.17380 of 2013 and MP(MD)No.1 of 2013 Dr.Uma Maheswari ... Petitioner Vs. 1.Inspector of Police, South Police Station, Rajapalayam, Virudhunagar District. 2.S.Thamarai Selvi ... Respondents Prayer : This Criminal Original Petition is filed Under Section 482 of Criminal Procedure Code to call for records in Crime No.430 of 2013 on the file of the first respondent herein and quash the same. !For Petitioner : Mr.ARL Sundaresan, Senior Counsel for Mr.R.Vijayakumar For Respondent : Mr.A.Robinson Government Advocate for R1 Mr.A.Thiruvadikumar for R2 :ORDER
The petitioner herein is a Gynecologist. The second respondent herein approached the petitioner for begetting a child through IVF (In vitro fertilization) procedure. The second respondent claims to have paid a few lakhs of rupees towards the petitioner's fee. But then, the procedure did not yield any positive result. Hence, the second respondent lodged a complaint with the first respondent leading to registration of Crime No.430 of 2013 for offences under Sections 406 and 420 of IPC. In her complaint, the second respondent had also alleged that the petitioner herein has not acquired any special qualification to perform the IVF procedure on her. To quash the said F.I.R registered against the petitioner, this petition has been filed.
2.Heard the learned Senior Counsel for the petitioner and the learned counsel for the second respondent and the learned Government counsel for the first respondent.
3.Women who cannot naturally beget children seek recourse to Assisted Re-productive Technology (A.R.T). In vitro Fertilization is an Assisted Re- productive Technology(A.R.T), referred to as I.V.F. It is a process by which the female gamete is fertilized by a sperm outside the body. The woman is given hormonal injunctions and other medication to stimulate egg production. The eggs are then retrieved. Thereafter, they are fertilized with sperm and cultured in the incubator. The fertilized embryos are then transferred back into the woman's womb so as to cause pregnancy. But even under optimal circumstances, there cannot be any guarantee of pregnancy. This is due to various reasons. The quality of eggs may be poor. The woman may have other uterus related problems. Likewise, the sperm of the male partner may be of poor quality. Therefore, the embryos transferred may not be optimal ones leading to less than satisfactory success rate. Even in the West, the success rate appears to be only around 30% per cycle. Again, the age of the woman will also have to be factored in. One cannot lose sight of the fact that a professional can only offer his or her best services. There can never be any assurance with regard to the results. The professional is not to be judged by the results. Of course, in order to psychologically prepare the patient, the Doctor will have to necessarily sound confident and cheerful. The doctor may have to tell the truth to the relatives, but rarely to the patient himself directly. Of course, the western practices may be different.
4.When the second respondent approached the petitioner for begetting a child through IVF procedure, the petitioner had given her hope and confidence. The same cannot be called as cheating. Of course, if the petitioner by giving a false assurance had collected an unconscionable sum of money, then certainly that would amount to an offence under Section 420 of IPC and also a malpractice warranting action from the disciplinary body. But then, in this case, the petitioner is seen to have collected only at the prevalent market rate. It is also seen that no specific qualification has been prescribed by the professional body with regard to running of an A.R.T centre. The petitioner is a Gynaecologist and she had taken the assistance of an Embryologist namely, Dr.S.J.Srinivasan and an Anaesthetist namely Dr.Mariyappan. The very procedure involves a team effort and obviously the petitioner could not have done anything single handedly. The petitioner after collecting fee at the standard rate, had done her best. But, the process did not yield the desired result for the second respondent.
5.The second respondent cannot blame the petitioner because the IVF Procedure did not result in pregnancy. If F.I.Rs such as the impugned one are allowed to remain, then no doctor will be safe. The medical professional should be in a position to discharge his or her function free of any stress. The averments set out in the impugned F.I.R, even taken at their face value, do not amount to offences punishable under Sections 406 and 420 of IPC. This Court is of the view that if the IVF cycle does not culminate in pregnancy, the professional cannot be blamed. If for every failure, the professional is to be fastened with penal consequences, that would result in a monstrous situation. No case is made out against the petitioner. Hence, the impugned F.I.R in Crime No.430 of 2013 on the file of the first respondent stands quashed. This Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.
To
1.The Inspector of Police, South Police Station, Rajapalayam, Virudhunagar District.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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