In CWP No.5480 of 2022-PUNJ HC- Short duration of marriage not valid ground for rejecting application of otherwise eligible spouse for organ donation in favor of other spouse, rules P&H HC Justice Raj Mohan Singh [08-04-2022]

Read Order: Manpreet Kaur v. State Of Punjab And Ors

Monika Rahar

Chandigarh, April 13, 2022: While dealing with a case wherein the authorization committee of the respondent-hospital rejected the petitioner’s application for donation of one of her kidneys to her husband both of whose kidneys failed, the Punjab and Haryana High Court has held that the duration of marriage is not a ground to discard the willingness of one of the spouse, to donate kidney in favor of other spouse, particularly when the case of the petitioner was verified on all legal parameters.

Alos, while observing that the petitioner wife was otherwise found medically and mentally fit for such donation, the Bench of Justice Raj Mohan Singh added, “Petitioner is the legally wedded wife of the recipient. There is no material on record to indicate any malpractice or any element of greed or pressure being exerted upon the petitioner. The condition of the husband of the petitioner is very serious.”

The petitioner (wife of a kidney patient) approached the High Court seeking the issuance of writ of mandamus directing the second respondent to conduct surgery of renal transplant of her husband by receiving the organ needed, from her without any further delay. 

The marriage between the petitioner and her husband was solemnized in December 2021. However, soon after their marriage, the petitioner’s husband was found to be suffering from failure of both his kidneys. The second respondent- hospital advised him to undergo kidney transplantation. Due to the aggravating condition of the patient, the petitioner being the wife, came forward to donate one of her kidneys for her husband. The Petitioner and her husband were subjected to all necessary medical tests and the petitioner was fit enough to donate a kidney to her husband.

After all the medical tests, the second respondent also verified the physical as well as mental state of health of the petitioner, including the conduct of counseling by psychiatrist to verify the mental state of health of the petitioner. The Hospital constituted a competent authority, comprising four members for the purpose of authorization of kidney transplantation between near relatives. 

The case of the petitioner was placed before the aforesaid authorization committee and the committee rejected the same on the ground of short duration of marriage. 

On a pointed query, the counsel for the respondents could not show any such bar under the rules that a newly wedded wife like the petitioner cannot donate one of her kidneys to her ailing husband. Also, the Court noted that the hospital did not point out any foul play at the behest of the donor or donee in order to circumvent any provision of law or for any extraneous consideration or commercial transaction between the parties in any manner.

Further, the Court observed that the patient was already on dialysis on a day to day basis for a long time; the identity and consent of the petitioner as required under Rule 22 of the Transplantation of Human Organs Rules, 2014 was already verified by the hospital, and no other consent of any parents or siblings of donor is required to be obtained.

Also, while noting that Police verification in the present case showed no element of greed or any kind of pressure being exerted upon the petitioner to donate her kidney, the Court opined that the petitioner is the wife of the recipient and the the statutory provisions are promulgated to prevent trafficking and commercial practices, and thus every care/caution has to be taken to prevent exploitation of any kind. 

However, the Court added that the petitioner was the legally wedded wife of the recipient and there was no material on record to indicate any malpractice or any element of greed or pressure being exerted upon the petitioner. 

The fact that the hospital’s counsel fairly submitted that there was no disqualification attached to the petitioner for donating her one of the kidneys to her husband, who was in dire need of the same, was also taken note of by the Court. 

Highlighting the reason for rejection of the petitioner’s application for such kidney donation by the committee constituted by the Hospital, the Court opined that the authorization committee has only rejected the case of the petitioner for kidney transplantation due to short duration of marriage, and that the duration of marriage is not a ground to discard the willingness of one of the spouse, to donate kidney in favor of other spouse, particularly when the case of the petitioner has been verified on all legal parameters. 

The Court also stated that the marriage of the petitioner was already registered with the Marriage Registrar and a marriage certificate was duly issued in favor of the couple. 

Thus, keeping in view the aforesaid facts and circumstances, the competent authority was directed to conclusively decide the application submitted by the petitioner for donation of kidney by the petitioner to the recipient i.e. her husband and allow transplantation of the same to be done by the Hospital at the earliest, keeping in view the medical state of health of Surjit Singh (husband of the petitioner).