The Madhya Pradesh High Court recently held that a wife’s objection cannot be taken into consideration when the husband is fit and willing to donate a part of his liver to an ailing person.
In the instant case, where the husband was ready to donate a part of his liver to his brother who needed an urgent transplantation but the hospital refused to do so because of his wife’s objection, the bench of Justice Raj Mohan Singh said, ” …petitioner no. 1 (the husband) being master of his own choice cannot be put to intrusive action by anyone, including his wife”.
“The caveat put by his wife cannot be taken to be a rider on the right of the petitioner No.1. The objection by the wife of the petitioner No.1 may be a societal norm to keep her marital status healthy and alive but by undergoing liver transplant, the respondent No.4 cannot foresee that in every likelihood, her husband may die,” the court added.
It emphasised that the liver is such an organ, which grows with the passage of time and these days because of medical advancement, organ donations are being successfully operated, and transplanted in other bodies.
“The perception of the respondent No.4 cannot be weighed over and above the desire of the petitioner No.1, who intends to save the life of his brother by donating his part of the liver. In the facts and circumstances of the case, the act of the petitioner No.1 cannot be held to be illegal,” the court held.
The HC, however, noted that the wife’s apprehensions were perhaps because of societal norms of keeping her “suhag” healthy, alive, and free from any risk. But, “if the individual right of the petitioner No.1 is pitted against such a perception of the respondent No.4, then the individual right of the petitioner No.1 has to be given preference,” it opined.
The husband and the wife of his ailing brother moved the high court under Article 226 of the Constitution of India for issuance of an appropriate writ to the hospital, where the brother was being treated for his liver disease, to proceed with the transplantation.
Despite the husband’s medical fitness for the procedure, the hospital had refused to move forward with the process because as per the Organs Transplantation Rules, 2014, an assent from the next of kin of the donor is necessary and the man’s wife had denied so.
The high court asked the wife to appear before it, but since she did not, the HC proceeded with her ex-parte.
The claim of the petitioners was that the husband had been found fit and compatible in view of various tests conducted and he had volunteered to donate a part of his liver to save his brother’s life, but despite the completion of all requisitioned paperwork, the hospital was refusing to perform the transplantation.
While ruling in favour of the petitioners and allowing them to proceed with the transplantation of liver, the HC referred to a catena of various high court rulings including Prasanna Laxmikant Joshi and another Vs State of Maharashtra, 2023, wherein a kidney transplant matter, the Bombay High Court had held the donor’s estranged wife’s consent to be of no avail.
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