- (1.) This judgment of mine shall dispose of two Civil Revision Nos. 6337 of 2011 (titled "Dr. Mangla Dogra and Others v. Anil Kumar Malhotra and Others"); and 6017 of 2011, titled ("Ajay Kumar Pasricha and Others v. Anil Kumar Malhotra and Others") which have been directed against the order dated 20.8.2011, passed by Civil Judge (Junior Division) Chandigarh, vide which the application filed by the petitioners under Order 7 Rule 11 Civil Procedure Code was dismissed.
(2.) The facts giving rise to these Civil Revisions originated from a matrimonial dispute between respondent No. 1 Anil Kumar Malhotra and respondent No. 2, Seema Malhotra. The marriage between the parties was solemnized on 17.4.1994. Out of the wedlock, a male child was born on 14.2.1995. The parties resided at Panipat. Due to the hostilities and strained relations between the parties, Seema Malhotra along with her minor son had been staying with her parents at Chandigarh since 1999. Respondents No. 5 is the brother of respondent No. 2, whereas respondent Nos. 3 & 4 are her parents. Respondent No. 1, Seema Malhotra filed an application under section 125 Cr.P.C claiming maintenance from the husband, Anil Kumar Malhotra. On 9.11.2002, during the pendency of the application under section 125 Cr. P. C, with the efforts of the Lok Adalat, Chandigarh, she agreed to accompany the husband. As a consequence, the couple went to Panipat. On 2.1.2003, Anil Kumar Malhotra came to know that Seema Malhotra had conceived. The wife-Seema Malhotra did not want to continue with the pregnancy and she wanted to get the foetus aborted, as despite their living together, the differences between them persisted. It was the case of the husband-respondent No. 1 that on the pretext of getting herself medically examined, the wife went to Dr. (Mrs.) Ritu Prabhakar, Prabhakar Hospital, Panipat. However, she was adamant to get the foetus aborted but the husband refused. On 3.1.2003, she contacted her mother at Chandigarh. On the advice of her mother, she along with her husband and son came to Chandigarh. On 4.1.2003, they went to General Hospital, Sector 16, Chandigarh. The husband refused to sign the papers giving his consent to terminate the pregnancy. The husband filed a suit for mandatory injunction restraining the wife from getting the foetus aborted. That suit was withdrawn in September, 2003, as the respondent No. 2 underwent MTP (Medical Termination of Pregnancy) at Nagpal Hospital, Sector 19, Chandigarh. The MTP was done by Dr. Mangla Dogra assisted by Dr. Sukhbir Grewal as Anesthetist. The husband- respondent No. 1 filed a civil suit for the recovery of Rs. 30 lacs towards damages on account of mental pain, agony and harassment against the wife, Seema Malhotra, her parents, brother, Dr. Mangla Dogra and Dr.Sukhbir Grewal for getting the pregnancy terminated illegally. The ground taken in the suit is that the specific consent of respondent No. 1, being father of the yet to be born child, was not obtained and the MTP was done in connivance with respondents No. 2 to 6. All the respondents are jointly and severally responsible for conducting the illegal act of termination of pregnancy without any medical requirement. In para Nos. 15 and 16 of the plaint (Annexure P-1), the plaintiff-respondent No. 1 averred as under :- "15. That the respondent No. 1 is liable as she indulged in the illegal act of abortion and deprived the plaintiff the chance of having the child. The respondents No. 2, 3 and 4, actively connived with the respondent No. 1 in carrying out the abortion without the consent of the plaintiff and without there being any medical requirement in this regard. The respondents No. 5 & 6 actually conducted the abortion when there was no such need and still further, no consent of the plaintiff, being father of the child was taken in this regard. 16. That the cause of action arose to the plaintiff on 4.1.2003, when the defendant underwent the abortion and got the foetus aborted at Nagpal Hospital, Sector 19-A, Chandigarh against the wishes of the plaintiff. Her parents and her brother fully supported her in her cruel, illegal and unethical Act causing great mental paint to the plaintiff."
(3.) On receipt of notices, the petitioners filed application under Order 7 Rule 11 C.P.C read with section 151 CPC for rejecting the plaint and dismissing the suit qua them. The allegations against defendants No. 5 & 6 contained in Para Nos. 12 and 13 of the plaint are as under :- "12. That despite the repeated requests, protests and blank refusal of the plaintiff, the respondent No. 1, underwent abortion at Nagapal Hospital, Sector 19 , Chandigarh on 4.1.2003 without the knowledge or consent of the plaintiff. The abortion was conducted by the respondent No. 5, Dr. Mangla Dogra and respondent No. 6, Dr. Sukhbir, the Anesthetist. 13. That in law, the foetus could not have been aborted unless it was essential in view of the health of the respondent. Still further, specific consent of the plaintiff, being father of the child is required. However, despite the fact that there was no medical problem and no consent of the plaintiff was taken, the respondents No. 5 & 6 in active connivance with respondents No. 2 to 4, conducted the abortion of the foetus of the respondent No. 1 on 4.1.2003 at Nagpal Hospital, Sector-19, Chandigarh.;