1. The first petitioner is the proposed donor of the second petitioner, who is facing the end stage of kidney disease. They have approached this Court seeking the following reliefs:-

                  “a) Issue a writ in the nature of certiorari or any other appropriate writ order or direction to call for the records leading to passing of Exhibit-P3 and Exhibit-P4 orders and to quash Exhibit-P3 and Exhibit-P4 orders rejecting permission for renal transplantation.

                  b) Issue a writ of mandamus or any other appropriate writ order or direction directing the 2nd respondent to re-consider Exhibit-P1 joint application at the earliest possible time and accord sanction to the petitioners for renal transplantation considering the ill health of the 2nd petitioner.

                  c) Issue such other reliefs that this Honourable Court may consider appropriate in the nature and circumstances of the case.”

2. The husband of the first petitioner/donor and the son of the second petitioner/recipient have good relations and thus, the first petitioner decided to donate her one kidney to the second petitioner due to the affinity and attachment with her family. However, the joint applications filed by the petitioners for granting permission for organ transplantation were rejected by the second respondent vide Ext.P3 order. Though an appeal was filed before the first respondent against Ext.P3 order, the same was also rejected as per Ext.P4 order. Aggrieved by this, the petitioners have approached this Court.

3. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned Standing Counsel for the third respondent.

4. The learned counsel for the petitioners submitted that the first respondent as well as the second respondent has not properly considered their applications and miserably failed to conduct an enquiry by considering the documents submitted by the petitioners. It is further submitted that there is disparity between the statements recorded by respondents 2 and 3. The learned counsel for the petitioners pointed out that in Ext.P3 order, it is stated that the donor submitted before the committee that her husband worked with the son of the recipient before their marriage in 2013; and it is further stated that the husband of the donor submitted that he had worked with the son of the recipient prior to his own marriage. However, the first respondent, in Ext.P4 order, stated that the donor’s husband worked at the Surya Wedding Centre with the recipient’s son from 2013 until the COVID outbreak. According to the learned counsel for the petitioners, thus, there is disparity in the statements recorded by respondents 1 and 2. The period during which the donor’s husband worked with the recipient’s son is not properly considered by the first respondent in arriving at the conclusion. The learned counsel for the petitioners further submitted that the police verification report also states that the donor has voluntarily decided to donate her kidney and she was made aware of the penal provisions. The learned counsel also argued that it was clear from the report of the police that there is no commercial transaction involved between the donor and the recipient; and the donor agreed to donate her kidney out of altruism. Hence, the learned counsel sought for a reconsideration of the issue by the second respondent.

5. The learned Standing Counsel for the third respondent, on the other hand, submitted that the petitioners miserably failed to prove the link between them, who are the donor and the recipient. There was no document at all to prove their relationship. The period during which the husband of the donor and the son of the recipient had worked together also did not match. Further, it was found by respondents 2 and 3 that the donor was a 30-year-old mother of two children aged 9 and 11 years; and hence, she, being an illiterate person, without awareness of the consequences of the transplantation, has agreed to donate her kidney. It is also pointed out that Ext.P4 order states that the husband of the donor was not even aware of the name of the recipient’s son with whom he alleged to have been working for many years. Therefore, according to the learned Standing Counsel, the rejection for permission for organ transplantation by the respondents was after proper consideration of the entire issue and there is no need for this Court to interfere with the same.

6. I have considered the rival contentions raised on both sides. The donor is a 30-year-old mother of two children aged 9 and 11 years. The explanation regarding the link between the donor and the recipient is through the donor’s husband and the recipient’s son. According to the donor, her husband worked with the recipient’s son prior to their marriage in 2013, whereas the recipient’s son stated that the donor’s husband worked with him in the Surya Textiles from 2016 to 2021. Ext.P4 order also reveals that the donor was educated only up to the 9th standard and she is unable to read and write malayalam. The donor’s husband, when asked to name the recipient’s son, could not state his real name and said he called him “Chetta.” The recipient’s son, however, stated that the donor’s husband used to call him “Thaju” and sometimes “Anna”. Hence, it is clear from Exts.P3 and P4 orders that there were discrepancies in the statements given and the petitioners failed to establish a clear relationship which led to the proposed organ donation.

7. Rule 7(3) of the Transplantation of Human Organs and Tissues Rules, 2014, reads as follows:

                  “(3) When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall, -

                  (i)       evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person;

                  (ii)      prepare an explanation of the link between them and the circumstances which led to the offer being made;

                  (iii)     examine the reasons why the donor wishes to donate;

                  (iv) examine the documentary evidence of the link, e.g., proof the they have lived together, etc.;

                  (v) examine old photographs showing the donor and the recipient together;

                  (vi) evaluate that there is no middleman or tout involved;

                  (vii) evaluate that financial status of the donor and the recipient asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective preventing commercial dealing;

                  (viii) ensure that the donor is not a drug addict;

                  (ix) ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of.”

8. As regards Rule 7(3)(i), the police verification report states that the donor has voluntarily decided to donate her kidney. Hence, it cannot be said that there was a commercial transaction involved in the proposed kidney donation.

9. Insofar as the link between the donor and the recipient is concerned, there occurred some discrepancies in the statements given by them. However, the second respondent as well as the third respondent recorded the statements in a different manner and there appears to be some mistakes in recording the period during which the donor’s husband and the recipient’s son had worked together. It is an admitted fact that the donor and her husband are illiterate persons and it would have been a reason for not adducing proper evidence to prove their link and the period during which the donor’s husband and the recipient’s son had worked together. Since this is a case wherein the police had reported that there do not exist any commercial transaction on the basis of the police verification report, I find that one more opportunity has to be given to the petitioners to prove their link between the donor and the recipient. Though certain photographs were produced, the committee found that they were recent and not old.

10. Considering the entire facts and circumstances of the case, I find that one more opportunity is to be granted to the petitioners to prove their contentions before the second respondent.

                  Accordingly, the writ petition is allowed. Exts.P3 and P4 orders are set aside. The second respondent is directed to reconsider the matter afresh after affording opportunity to the petitioners to adduce further evidence to prove their contentions, and pass appropriate orders within a period of two weeks from the date of receipt of a certified copy of this judgment.