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5. Petitioner states that she has already had four children and the birth of unwanted child has put on her unnecessary burden of rearing up the child as also all the expenses involved in the maintenance of that unwanted child including the expenses towards her clothes, education and marriage. That apart the petitioner has also suffered mental pain, agony and an extra burden of financial liability of this fifth new girl child born on 5th October, 2000 to the petitioner on account of negligence of respondents. The sterilization (tubectomy) operation performed by the respondents has failed on account of act of omission and negligence on the part of the respondents. Negligence is writ large in this case. In fact after the birth of unwanted fifth child the petitioner again conceived and abortion was carried on 14th July, 2001 and thus it shows that the operation was not at all successful.

18. In Halsbury's Laws of England, 4th Edition (Re issue), Vol. 12(1) while considering the question of "failed sterilization", it is stated in para 896 as under:

Failed sterilization--'Where the defendant's negligent performance of a sterilization operation results in the birth of a healthy child, public policy does not prevent the parents from recovering damages for the unwanted birth, even though the child may in fact be wanted by the time of its birth.

19. This has now become an established law by series of judgments of the Supreme Court as well as this Court that such compensation due to negligence of State can be granted:

24. Thus the changed view of Court of Appeal in England is also that if as a result of a doctor's negligence an unplanned child is born to parents the doctor is liable to pay for all expenses which might reasonably be incurred in the education f and in the upkeep of the child having regard to the child's condition in life. It is not necessary to deal with this aspect of the matter any further as the justification of the view taken above can be found in the judgment of the Supreme Court in the case of Smt. Santra (supra). That was also a case of failed sterilization because of which the respondent had conceived and gave birth to a girl child. The respondent filed suit for damages which were awarded by the Trial Court after it was found that the failure of sterilization was on account of negligence on the part of the doctor who performed the operation. The Supreme Court in fact discussed the aspects of medical negligence elaborately noticing its earlier judgments as well as judgments of English Courts. Thereafter, the Supreme Court dealt with the issue of grant of damages in such cases and scanned through the case law that has emerged in England, United States of America, South Africa and New Zealand on this aspect. It also noted the judgment in the case of State of M.P. and Ors. v. Asharam reported in 1997 Accident Claims Journal 1224 where the Court had allowed the damages on account of medical negligence in performing family planning operation in which a daughter was born after fifteen months from the date of operation. It is not necessary to reproduce the same. Suffice is to say that the Supreme Court put a stamp of approval on the principle that in such cases damages can be awarded by making following observations in the concluding paras: