Does consent have no value in operations done on sexual organs/genitals ?                                        Jan 13, 2015

Though I hold intensely private religious beliefs (non demonstrative, non ritualistic) and I am not even remotely trying to defend the Dera suchha sauda supremo some Questions which arise to my mind are;
1) Is Sex Reconstruction surgery with consent genital mutilation punishable under Section 320, 322 and 325 IPC
2) Is Labial piercing with consent also genital mutilation
3) Is circumcision / penile lengthning with consent a grevious injury / genital mutilation
4) Is vaginoplasty with consent genital mutilation if desired result is not obtained and hence punishable under criminal law.
5) Since there is no bar of limitation on registering a complaint for commission of a cognizable offence (all of the above) how long should medical records be kept for any surgery performed on genitals because this is a case where surgeries have been allegedly done in 2000 and complaint filed more than 10 yrs later that promised salvation did not occur. It is a different matter that the promise also was made by someone else and not the doctor who performed the surgery.
6) Larger question which arises is whether consent for any surgery has any validity ?
7) Since complaint can be lodged if desired result of surgery (in this case salvation or meeting with God) is not obtained would this be a precedent for grevious injury allegations in all failed surgeries.
8) Is a Doctor patient relationship same as Master-servant or a Guru- Follower.

In Civil writ petition no 13395 of 2012 Punjab & Haryana High Court Justice Kannan has opined on pg 14 that
1) There can be no consent for castration for a normal person; The performer or abettor commits an offense.
Emasculation is torture. There could be no invitation to be subjected to torture. No doctor....take the willingness of a person to be subjected to removal of testicles as coming within the expected line of defence under volenti non-fit injuria...... There could therefore be no justification for any doctor to say that he performed the surgery because someone goaded by faith that removal of organ can attain salvation for him...Taking reference from 2 cases of sadomasochism decided in British courts where injuries were caused with consent for sexual pleasures justice Kannan opined.....Courts cannot be privy to matters of blind faith in name of religion. .....Section 320 of IPC that defines grevious hurt to include emasculation, and section 322 that makes a person who voluntarily causes such hurt which he intends to cause as a person being guilty of such conduct and Section 325 imposing punishment for causing such grevious hurt.
2) There shall be No bar of limitation for registering a complaint of commission of cognizable offence.
3) The course investigation may take......(v) if credible information is secured that castration has been done the question of whether it was voluntary or not or whether it was voluntary or not or whether any person prevailed on persons undergoing such emasculation would be secondary piece of information that would require to be still collected. This is so because the doctor pleading for consent has justification for undertaking such surgery is really a matter of general exception where burden will be on person pleading such exception...."where there is a question as to the good faith of a transaction between parties one of whom stands to the other in a position of active confidence, the burden of proving good faith of the transaction is on the party who is in a position of active confidence". It has been laid down in several decisions that a master to a servant or a guru to a disciple is in a position of active confidence and a proof of good faith must be placed on a person who is in a position to control the activities of the other.
I know I am opening a pandoras box. But then someone should for sake of legal clarity.

Dr Neeraj Nagpal
Convenor, Medicos Legal Action Group
Ex President IMA Chandigarh
09316517176 e mail; This email address is being protected from spambots. You need JavaScript enabled to view it., This email address is being protected from spambots. You need JavaScript enabled to view it.
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