ORDER

1. Petitioner, who is a proposed donor of kidney has approached this Court under Article 226 of the Constitution of India seeking following reliefs :--

"A. That this Hon'ble Court may kindly be pleased to issue writ in the nature of mandamus directing respondent No. 2 & 4 to proceed with the Kidney Transplantation procedure pursuant to the medical fitness certificate of petitioner and the respondent No.4 may be directed to forthwith grant the permission to respondent No.2.

B. That this Hon'ble Court may kindly be pleased to issue writ in the nature of mandamus directing respondent No. 2 & 4 to proceed with transplantation without demanding NOC/affidavit of respondent No.3 i.e. the husband of petitioner.

C. Any other relief or orders which this Hon'ble Court deemed fit and proper under the facts and circumstances in the interest of justice.

2. The short facts of the case are that, brother of petitioner named Ashok Pawar, aged about 63 years is suffering from CKD stage 5-D and is on Dialysis. Doctors have suggested for kidney transplantation and the petitioner has under gone all the required test, whereby she is found competent and fit to donate her one kidney to her brother. The family members of the petitioner have given their consent for the same but her husband who is respondent No.3 in the present petition has not issued no objection. Respondent No.2/Bansal Hospital, Shahpura, Bhopal is not ready to process the documents of the petitioner for the purpose of approval by the competent authorization committee formulated under the Transplantation of Human Organs and Tissues Rules, 2014, on the ground that the petitioner's/husband has not issued NOC or Affidavit.

3. By the present petition, petitioner has complained the inaction of the respondent/Hospital to process the matter before the competent authorization committee. The case of petitioner is that if the Kidney Transplant is not done promptly, the life of brother of the petitioner will be at high risk.

4. Learned counsel appearing on behalf of petitioner submits that there is no provision either in Transplantation of Human Organs and Tissues Act, 1994 or in the Rules of 2014 formulated under the provisions of the Act that the Kidney may be donated only after the written NOC/consent of the spouse. He further submits that other family members have already consented and the competent doctor has also issued certificate of medical fitness of living donor issued upon Form-4 as per rule 5(3) (b) of the Rules, 2014 and therefore, respondents/hospital be directed to place the matter before the competent authorization committee and the competent authorization committee be also directed to take decision at the earliest, without insisting upon filing of the NOC/Affidavit of the husband of petitioner.

5. Learned counsel for petitioner relied on the judgment passed by Delhi High Court in W.P.C. 8671/2022 on 30.5.2022 (Neha Devi v. Govt. of NCT of Delhi and others), whereby after considering the provisions of Rules 18 and 22, Delhi High Court opined that there is no requirement to obtain the NOC/Affidavit of the spouse of petitioner for the purpose of donation of kidney to her ailing father . The relevant paras of the judgment reads as under :--

5. As is manifest from a reading of Rule 18, where the proposed transplant is to be made by a close relative, which would include a daughter, documentary evidence which is required to be submitted is clearly set forth in clauses (i) and (ii) of the Rule.

6. The Court also takes note of rule 22 which reads as follows :-- “22. Precautions in case of woman donor. — In case where the donor is a woman, greater precautions ought to be taken and her identity and independent consent should be confirmed by a person other than the recipient.”

7. As this Court views Rule 18, it is evident that the statute does not contemplate or mandate spousal consent being obtained. At least such a stipulation does not stand expressly engrafted in the Ru