Delhi District Court
Mr. Partha Pratim Roy vs Mrs. Santoshi on 20 December, 2018
CS No. 51495/2016 IN THE COURT OF Ms. MONIKA SAROHA,
SENIOR CIVIL JUDGECUMRENT CONTROLLER
SOUTH EAST DISTRICT, SAKET, NEW DELHI
CS: 1050/2017
CNR No. DLSE030019392017
1.Mr. Partha Pratim Roy S/o Late Sh. S. Roy R/o 798, Highbury Road, Glen Waverley, Victoria 3150, Australia.
2. Mrs. Dipali Roy W/o Partha Pratim Roy R/o 798, Highbury Road, Glen Waverley, Victoria 3150, Australia. .....Plaintiffs versus
1. Mrs. Santoshi W/o Mr. Deshraj Presently R/o H. No. 204, St No. 8, VPO Kapashera, New Delhi - 110037.
2. Mr. Deshraj S/o Mr. Suresh Presently R/o H. No. 204, St No. 8, VPO Kapashera, New Delhi - 110037. ....Defendants Date of institution of suit : 14.09.2017 Date on which judgment reserved : 26.11.2018 Date on which judgment pronounced : 20.12.2018 Decision : Decreed CS No. 1050/2017 Partha Pratim Roy & Anr. Vs. Santoshi & Anr. 1/5 J U D G M E N T SUIT FOR DECLARATION AND PERMANENT/PERPETUAL INJUNCTION AVERMENTS OF PLAINTIFFS
1. The plaintiffs are husband wife and residents of Australia. They entered into a surrogacy agreement with defendant No. 1 on 23.09.2014 to which defendant No. 2 was made a confirming party. As per this agreement it was agreed that the defendant No. 1 will act as a surrogate mother and will give birth to the child of the plaintiffs by way of embryo transfer in her uterus. It was agreed between the parties that the plaintiffs shall be the legal parents of the child born through this procedure and the defendants will raise no objection with respect to the same. Both the plaintiffs as well as the defendants acted in accordance with the agreement entered by them and in due course the defendant No. 1 gave birth to one baby boy named Vikram Roy on 02.06.2015 at Fortis La Femme, S 549, Greater Kailash II, New Delhi. Further, acting upon the agreement, the defendants handed over the custody of the said child to the plaintiffs.
1.1 The plaintiffs were constrained to file this suit when they became aware of the presumption under the Indian Evidence Act that unless proved otherwise, the husband of the defendant No. 1 shall be presumed to be the father of the child so born as he was conceived when defendant no. 2 had CS No. 1050/2017 Partha Pratim Roy & Anr. Vs. Santoshi & Anr. 2/5 physical access to defendant no. 1, his wife.
1.2 Thus the present suit seeking declaration that it is indeed the plaintiffs who are the legal parents of the child born in view of the surrogacy agreement between the parties.
2. The defendants were served by way of publication 07.03.2018 however, none appeared on behalf of the defendants and they were proceeded against exparte vide order dated 14.03.2018.
PLAINTIFFS' EVIDENCE
3. At this stage, plaintiff no. 1 examined himself as PW1. He reaffirmed the contents of the plaint and relied upon the following documents:
i. Ex. PW1/1 Gestation Surrogacy Agreement dt. 23.09.2014 along with annexures.
ii. Ex. PW1/2 Birth Certificate of Vikram Roy.
iii. Ex. PW1/3 Passport of Vikram Roy.
iv. Ex. PW1/4 ART Report.
v. Ex. PW1/5 Passport of Partha Pratim Roy.
vi. Ex. PW1/6 Passport of Dipali Roy.
3.1 Plaintiff no. 2 examined herself as PW2. She reaffirmed the CS No. 1050/2017 Partha Pratim Roy & Anr. Vs. Santoshi & Anr. 3/5 contents of the plaint and relied upon the documents already exhibited in the testimony of PW1.
Thereafter, upon request plaintiffs' evidence was closed. Exparte final arguments as advanced by counsel for plaintiffs were heard.
FINDINGS
4. There is no specific legislation which governs surrogacy arrangements in India, although one bill dealing with this aspect has been tabled in the Parliament but the same has not yet been passed. Surrogacy arrangements are thus governed only by the guidelines issued by the Indian Council of Medical Research and National Academy of Medical Sciences, which have been carefully looked into by this court. The relief sought is in consonance with the principles laid down in these guidelines according to which the surrogate mother is not considered to be the legal mother of the child born to her.
4.1 The surrogacy agreement which has been duly proved indeed provides that the plaintiffs shall be the father and mother of the child born pursuant to the agreement. However, there is nothing on record to show that plaintiff no. 2 is the biological mother of the child Vikram Roy. No DNA report of the child is available on record and in the absence of the same no opinion can be made regarding the natural mother of child Vikram Roy while CS No. 1050/2017 Partha Pratim Roy & Anr. Vs. Santoshi & Anr. 4/5 admittedly he was born using the female eggs of a donor. The ART certificate given by the treating doctor states that indeed the sperms of Mr. Partha Pratim were used to fertilize anonymous donors eggs and thereafter the embryo was transferred in the surrogate's womb. Thus according to the document relied by the plaintiffs themselves the plaintiff no. 1 is the biological father of the child, however, the biological mother is an anonymous donor. Thus, there is nothing on record to hold that plaintiff no. 2 is the biological mother of the child.
4.2 The children are in custody of the plaintiffs since their birth i.e. around 7 years prior to the filing of this suit. Considering that the entire testimony of the plaintiffs has gone unrebutted, in view of the discussion above, it is held that plaintiff no. 1 is the biological father of the baby boy Vikram Roy and defendant no. 2 Deshraj has no parental rights over the baby. Both the defendants are directed and restrained from acting contrary to the terms of the surrogacy agreement Ex. PW1/1.
Suit of the plaintiff is accordingly disposed of. Decree sheet be prepared accordingly. Originals be returned as per rules.
File be consigned to record room.
Announced in the open court (Monika Saroha) on 20.12.2018 Sr. Civil JudgecumRent Controller SouthEast, Saket Courts, New Delhi.
CS No. 1050/2017 Partha Pratim Roy & Anr. Vs. Santoshi & Anr. 5/5