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REPORTABLE

IN THE SUPREME COURT OF INIDA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.232 OF 2012

Aarushi Dhasmana … Petitioner

Versus

Union of India and others … Respondents

J UD G M E N T

K.S. Radhakrishnan, J

1. We are, in this case, concerned with the fate of Saba and  

Farha,  Craniopagus  Twins  (CTs)  and  their  survival,  unless  

subjected to surgical separation.

2. Saba  and  Farha,  CTs,  both  female,  are  minors,  

togetherness, of course, will not bring joy to them or to their  

parents,  to  the  family  members  or  the  people  at  large  who  

happen to see them or heard about them.  The doors of this  

Court have been knocked by a good Samaritan and since this

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Court has a fundamental duty to look after the interest of minor  

children, especially when they are CTs, fighting for their lives.  

We  spent  sleepless  nights  to  find  out  a  solution.   Seldom  

society cares or knows the mental and psychological trauma, in  

such  situations,  Judges  undergo,  especially,  when  they  are  

called upon to decide an issue touching human life, either to  

save or take away.  

3. We are in this case concerned with lives of two minor girls,  

placed in an unfortunate, calamitous and infelicitous situation.  

CTs are conjoined twins who are fused at the cramium.  Medical  

science says that at least 25% of the CTs may survive and can  

be  considered  for  a  surgical  separation,  especially  due  to  

advances  in  medicine,  including  brain  imaging,  neuro-

anaesthesia and neuro surgical techniques, but risk is always  

there.

4. We  were  informed,  both  Saba  and  Farha  had  earlier  

attended to by Dr. Benjmin Carson, a U.S. Specialist who had  

noticed that they shared a vital blood vessel in the brain and  

that Farha had two kidneys while Saba had none.  Earlier also  

medical  experts  had  ruled  that  separating  Saba  and  Farha  

would require 5 or 6 operations over nine months,  but each

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stage held a one-in-five chance that either of the girls might  

die.  Consequently, the family had decided to go against any  

operation,  even though it  was reported that crown prince of  

Abu Dhabi, Sheikh Mohammed bin Zayed, offered to meet the  

entire medical expenses.  

5. We heard the matter on 30.7.2012 and directed the Chief  

Secretary of Bihar to make arrangements to bring CTs to AIIMS,  

New Delhi by an Air Ambulance.  Direction was also given to  

constitute a  medical  team to  examine them and to  take up  

further follow up action.  Arrangements were also made to take  

parents along with them at the expenses of the State for their  

treatment.  The parents were, however, not  agreeable to that  

arrangement but only wanted financial assistance to look after  

CTs.

6. The AIIMS medical team, New Delhi in compliance of this  

Court order dated 21.8.2012 reached Patna on 21.10.2012 to  

examine CTs.  After examining, they submitted the following  

report dated 31st October, 2012 before this Court, which reads  

as under:

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“As per the Supreme Court orders in Writ Petition (Civil)  No.232  of  2012  and  instructions  of  the  AIIMS  administration, the following doctors team from AIIMS  visited  Patna,  Bihar  on  21.10.2012  to  examine  the  conjoint twins Saba and Farah both female age 15 years  D/o Rabia Khatoon.

1. Prof. M.V. Padma, Professor of Neurology

2. Prof. Arvind Chaturvedi, Professor of Neuro-anaesthesia

3. Dr. S.K. Kale, Additional Professor of Neuro-surgery

After discussion with Mr. S. Luthra, Additional Solicitor  

General,  the report submitted earlier is elaborated as  

under:

According to the brother of the patients one of the twins  does  not  have  kidneys,  and  the  twins  between  their  brain have one common sagittal  sinus (biggest  vein).  There  is  no  evidence/investigation  to  either  prove  or  disprove these statements made by the brother.

1. The  risk  involved  in  the  operation  to  separate  the  conjoint  twins (Craniopaguys)  Saba and Farha cannot  be elaborated without investigations.  The statements  made by the brother regarding kidneys and the sagittal  sinus also need extensive investigations.   

2. The investigations  will  have to  include CT scan,  MRI,  MRI Angiography, 4Vessel IA DSA and investigations for

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other organ functions, and can be performed by experts  at AIIMS.

3. These investigations have their own risks.

4. The parents and the brother are not willing to take any  risk including the risk involved in investigations.

5. A  detailed  medical  report  is  not  possible  without  investigations.

The  brother  and  the  parents  handed  over  a  written  submission requesting for financial help and palliative  care.   This  submission  was  attached  in  the  earlier  report.

Signature Signature     Signature

Prof. M.V. Padma Prof. A. Chaturvedi   Dr. S.S. Kale Prof. of Neurology Prof. of Neuro-   Addl. Prof. AIIMS, New Delhi anaesthesia, AIIMS   Neuro-    

New Delhi,   Surgery          AIIMS, New Delhi”

7. We find when the medical team of AIIMS visited to Patna  

on 21.10.2012 to  examine the CTs they were served with  a  

letter  by  the  mother  of  the  CTs,  Rabia  Khatoon.   The  letter  

reads as follows:

“To

The Enquiry Committee (Medical Team) AIIMS, New Delhi.

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Sub:  Help of monthly pension for conjoint           sisters Sabaa and Farha –reg.

Sir,

It is requested that we do not want our daughters  to get operated because operation is very risky and we  do not  want to  take risk.   There are lot  of  expenses  involved for my daughters – food and medicines etc. I  request that monetary help of Rs.8000/- may be given  to  my each daughter.   The financial  condition  of  my  home is not good.  I have big family of ten members.  We need help as we don’t have any means of livelihood.

I am sure that that you will consider my request  seriously.  I will forever remain indebted to you.  My one  son has been looking after both the sisters & family by  borrowing money as there is no mean of livelihood.  He  is  still  unemployed.   He  may  be  helped  in  getting  employment so that both the sisters are taken care of.

Yours faithfully, Sd/-

(Rabia Khatoon) Moh. Samanpura, Raja Bazaar,

P.O. BP College, PS Shastri Nagar, Distt. Patna-800014 Mob. 9308566555”

8. Above facts would clearly indicate that the medical team  

of AIIMS could not make any proper investigation of the CTs.

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They opined that the investigation would involve CT Scan, MTI,  

MRI angiography, 4Vessel IA DSA etc. which could be performed  

only  at  AIIMS.   They  also  expressed  the  view  that  those  

investigations have their own risks and that since the parents  

and brother were not willing to take any risk, including the risks  

involved in the investigation, it would not be possible to make  

detailed  medical  report  without  proper  investigations  of  the  

CTs.

9. The case of Saba and Farha give rise to various questions  

about the rights of the minors, their right to life, their inter-se  

rights, inherent value of lives, right to bodily integrity, balancing  

of  interests,  best  interest  standards,  parents  views,  courts’  

duty, doctors duty etc.  The questions raised above are inter-

connected and inter-related and have their roots in medical law,  

family law, criminal law and human rights law.   Should we go  

for the best interest of Saba and Farah, or either of them?   Can  

a Court override the wishes of the parents when we apply the  

best interest standard for saving the life of at least one?

Medical Law

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10. The  AIIMS  Medical  Team has  stated  in  its  report  dated  

21.10.2012 about the risk involved in the operation to separate  

Saba and Farah which according to the Medical Team can be  

elaborated only after detailed investigations, at AIIMS,  added to  

that it has been stated that the investigations have their own  

risks.  The State of Bihar and the Central Government, however,  

have extended their fullest support in meeting the expenses for  

the surgical treatment.  AIIMS have also expressed opinion that  

they would carry out the investigations but for the unwillingness  

of the parents and the family members. Barring  a  few  

exceptions, as a general rule, the conduct of investigations and  

performance of medical operation on a person, without his or  

her  consent  is  unlawful.   In  F. v.  West  Berkshire  Health  

Authority  (Mental  Health  Act  Commission  intervening)  

[1989] 2 All E.R. 545 at 564 Lord Goff while adopting the words  

of Cardozo has stated “Every human being of adult years and  

sound mind has a right to determine what shall be done with his  

own body”.  We are, in this case, however, concerned with two  

minor girls,  conjoint twins,  faced with a situation where their  

parental consent is not forthcoming either for investigation or  

for the surgical operation.

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Right to Life:

11. Right  to  life  is  guaranteed  under  Article  21  of  the  

Constitution of India, so also the right to bodily integrity.  We  

are, in this case, not in a position to say, in the absence of any  

medical report,  as to whether both Saba and Farah could be  

saved or either of them.  Let us pose the following questions to  

ourselves: Is  it  in Saba’s best interest that she be separated  

from Farah? Is it  Farah’s best interest that she be separated  

from Saba?   Both Saba and Farah are dear  to  us,  but  in  a  

situation  where  both  in  the  absence  of  surgical  separation  

might  die,  and  in  case  of  a  surgical  operation,  one  would  

survive, is there not a duty on the Court to save at least one.    

12. There can also be conflict  of  interests  between the CTs  

that is Saba and Farha, in such situation the Court has to adopt  

a  balancing  exercise  to  find  out  the  least  detrimental  

alternative.  We are not in a position to undertake that exercise  

in the instant case, because there is no medical report before  

us stating that if CTs are subjected to surgical operation, one of  

them might  survive.   If  there is  an authentic  medical  report  

before  us  that  the  life  of  one  could  be  saved,  due  surgical

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operation, otherwise both would die, we would have applied the  

“least  detrimental  test”  and  saved  the  life  of  one,  even  if  

parents are not  agreeable to  that  course.   Every life  has an  

equal inherent value which is recognised by Article 21 of the  

Constitution and the Court is duty bound to save that life.

Parents consent and duty of the Court

13. Both, parents, as well as the brother are against shifting  

Saba and Farah to AIIMS,  New Delhi  for  further  investigation  

and also for further surgical operation.  They believe, the same  

is risky and both might not survive.  In Gillick v. West Norfolk  

and Wisbech Area Health Authority (1985) 3 All  E.R. The  

Court  held  that  “the  common  law  has  never  treated  the  

parental rights and powers as sovereign or beyond review or  

control.   

14. We may also refer to an off-repeated passage of Bingham  

MR in Re Z (a minor) (freedom of publication) [1995] 4 All ER  

961 at 986:

“I would for my part accept without reservation that  the  decision  of  a  devoted  and  responsible  parent  should be treated with respect.  It should certainly not  be disregarded or lightly set aside.  But the role of the  court  is  to  exercise  an  independent  and  objective

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judgment.  If that judgment is in accord with that of  the devoted and responsible parent, well and good.  If  it is not, then it is the duty of the court, after giving  due  weight  to  the  view  of  the  devoted  and  responsible parent, to give effect to its own judgment.  That  is  what  it  is  there  for.   Its  judgment  may  of  course be wrong.  So may that of the parent.   But  once the jurisdiction of the court is invoked its clear  duty is to reach and express the best judgment it can.

That is the law.  That is what governs my decision.  That is what I am desperately trying to do.  I do not  discern any very  significant  difference between the  law,  as  set  out  above,  and  the  Archbishop’s  fifth  overarching moral consideration which he expresses  in these terms: “Respect for the natural authority of parents requires  that  the  courts  override  the  rights  of  parents  only  when  there  is  clear  evidence  that  they  are  acting  contrary to what is strictly owing to their children.”

15. Saba and Farah are now wards of this Court and we are  

exercising Wardship Jurisdiction as well.  Law of this land has  

always recognised the rights of parents with their wards/minors  

and first and foremost consideration of the Court is “welfare of  

the  children”,  which  overrides  the  views  or  opinions  of  the

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parents.  In Re B (a minor) (wardship: medical treatment)  

[1981] (1990 3 ALL E.R. 927 was a case where a child was born  

suffering  from Down’s  Syndrome and  an  intestinal  blockage,  

required an operation to relieve the obstruction if she was to  

live more than a few days.  Doctor opined that if the operations  

were performed, the child might die within a few months but it  

was probable that her life expectancy would be 20 to 30 years.  

Parents, though, it would be kinder to allow her to die rather  

than  live  as  a  physically  and  mentally  disabled  person,  

consequently, refused to consent for the operation.  The local  

authority made the child a ward of court and when a surgeon  

decided that  the wishes of  the parents should be respected,  

they sought an order authorising the operation to be performed  

by other named surgeon.  Lord Templeman said:

“Counsel  for  the  parents  has  submitted  very  movingly…. That this is a case where nature has made  its own arrangements to terminate a life which would  be fruitful and nature should not be interfered with.  He  has  also  submitted  that  in  this  kind  of  decision  the  views of responsible and caring parents, as these are,  should be respected, and that their decision that it is  better  for  the  child  to  be  allowed  to  die  should  be  respected.   Fortunately  or  unfortunately,  in  this  particular  case  the  decision  no  longer  lies  with  the

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parents or with the doctors, but lies with the court.  It is  a decision which of course must be taken in the light of  the evidence and views expressed by the parents and  the doctors, but at the end of the day it devolves on this  court in this particular instance to decide …..’ 1990 (3)  All E.R. 927 at 929.

Lord Dunn also said:

“I  have  great  sympathy  for  the  parents  in  the  agonising decision to which they came.  As they put it  themselves: “God or nature has given the child a way  out.”   But  the  child  now  being  a  ward  of  court,  although due weight must be given to the decision of  the parents which everybody accepts was an entirely  responsible one thing what they considered was the  best, the fact of the matter is that this court now has  to  make  the  decision.   It  cannot  hid  behind  the  decision of the parents or the decision of the doctors;  and  in  making  the  decision  of  this  court’s  first  and  paramount  consideration  is  the  welfare  of  this  unhappy little baby.” (1990) 3 All E.R. 927 at 929.

16. We are faced with the same situation in this case, since  

Saba  and  Farah’s  parents  are  against  carrying  on  any  

investigation as well as surgical operation but, being Saba and  

Farah are ward of this Court, this Court has got a responsibility

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to find out whether it is possible to save both and if not, at least  

one, for which investigations are necessary.

17. We are adopting such standards because each life has an  

inherent value in itself and the right to life guaranteed under  

Article 21 of the Constitution is of general nature to apply to  

both Saba and Farah.  But what about the inherent value of life  

of  one, who can survive due to surgical separation.  Is it not  

necessary to save inherent value of the ward who may survive  

not the other.  Intrinsic value of both Saba and Farah is equal,  

but when medical investigation is carried on, a balance sheet  

has to be drawn up of the advantages and disadvantages which  

flow from the performance or the non-performance of a surgical  

treatment.  If the balance shifts heavily in favour of one, that  

has to be accepted, otherwise, both will sink and die.

Lack of Medical Report

18. We are, in this case, concerned with a situation where a  

proper  medical  investigation could not  be carried out  by the  

medical  team  of  AIIMS,  mainly,  because  of  the  parental  

opposition.   What  they  wanted  is  financial  help  for  the  

maintenance of both Saba and Farah.  Financial help, of course,

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has to be extended to them since parents are coming from poor  

circumstances, but when the lives of both are stake, can we not  

save the life of at least one.   Medical team of AIIMS could not  

come  out  with  a  solution,  as  already  indicated,  they  were  

apprehensive of the fact that the investigations had their own  

risk and had also opined that detailed medical treatment would  

be possible only after thorough investigation.

19. We are sorry to note that nobody is concerned with the  

pain and agony CTs are undergoing, not even the parents, what  

they want is financial help as well as palliative care.  No positive  

direction  can  be  given  in  the  absence  of  an  expert  medical  

opinion  indicating  that  either  of  them  can  be  saved  due  to  

surgical  operation or  at  least  one.  Considering the facts  and  

circumstances of this case, we are, however,  inclined to give  

the following directions:

1. Civil Surgeon, Medical Centre, Patna should periodically carry  

on  the  medical  examination  of  both  Saba  and  Farah  and  

send periodical reports, at least quarterly to AIIMS and AIIMS  

would make their own suggestion based on the investigation  

which is  being conducted by the medical team from Patna.

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2. The State of Bihar is directed to meet the complete medical  

expenses for the treatment of both Saba and Farah and also  

would pay a consolidated amount of Rs.5,000/- monthly to  

look after both Saba and Farah.

3. CTscondition  as  well  as  the  treatment  given  to  them  be  

reported to this Court every six months.

4. The State of Bihar is directed to move this Court for further  

directions,  so  that  better  and  more  scientific  and  

sophisticated  treatment  could  be  extended  to  Saba  and  

Farah.

With these directions, this writ petition is disposed of.

..………………………..J.                                                            (K.S. Radhakrishnan)

………………………….J.             (Dipak Misra)

New Delhi, April   10, 2013