Delhi District Court
Sadeesh Premananth Suppiah vs Mrs Pooja Das on 19 January, 2024
IN THE COURT OF MS. CHARU ASIWAL,
CIVIL JUDGE-03, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
Suit No. 1758/22
In the matter of:-
1.MR. SADEESH PREMANANTH SUPPIAH S/o Mr. Suppiah Arunasalam R/o S-27, Second Floor, Greater Kailash Part-2, New Delhi - 110048.
2. MRS. ANNE MEIKE JAHN W/o Mr. Sadeesh Premananth Suppiah R/o S-27, Second Floor, Greater Kailash Part-2, New Delhi - 110048 ...Plaintiffs Vs.
1. MRS. POOJA DAS W/o Mr. Pradeep Das R/o 43-B, Gali No. 8, Laxmi Nagar Extension, New Delhi.
2. MR. PRADEEP DAS S/o Mr. Prashant Das R/o 43-B, Gali No. 8, Laxmi Nagar Extension, New Delhi. ...Defendants Date of institution of Suit : 20.12.2022 Date on which Judgment was reserved : Not Reserved Date of pronouncement of the Judgment : 19.01.2024 CS SCJ No.1758/22 SADEESH PREMANANTH SUPPIAH Vs. MRS. POOJA DAS PAGE 1 OF 9 EX- PARTE JUDGEMENT
1. The plaintiff has instituted the present suit against the defendant seeking relief of declaration.
2. Brief facts of the plaint are that, plaintiff no. 1 & 2 are husband and wife, married since 12.11.2015, wherein plaintiff no. 1 is an Indian Citizen and plaintiff no. 2 is a German Citizen living in India and is also overseas Citizen of India. It is version of the plaintiffs that they were unable to conceive a child naturally, therefore, the plaintiffs took the aid of Assisted Reproductive Technologies through clinics in Delhi for procedures such as IVF(In Vitro Fertilization), however, that despite going through five rounds of IVF treatment, the plaintiffs were unsuccessful in conceiving a child. Thereafter, they were introduced to defendant no. 1 & 2, who are a married couple and also has a son of their own. It is averred that after discussion, it was agreed that defendant no. 1 shall carry a child for the plaintiffs through the process of surrogacy, wherein defendant no. 2 being the husband of defendant no. 1 became the confirming party.
3. It is further averred by the plaintiff that at such point of time, no law regarding surrogacy existed in India and therefore, practice of signing a Surrogacy Agreement was valid in law. Thereafter, all the parties entered into a 'gestational surrogacy agreement' on 15.02.2019 and CS SCJ No.1758/22 SADEESH PREMANANTH SUPPIAH Vs. MRS. POOJA DAS PAGE 2 OF 9 therefore, all the parties bound themselves to the terms of the agreement. It is averred by the plaintiff that several clauses in the agreement elaborates on the rights and obligations on the parties. Further, the consideration clause has also been consulted in the agreement, which has been paid to the defendants.
4. After execution of the agreement, plaintiff no. 1 provided his sperm for insemination with the egg of an anonymous donor and thereafter, the embryo was implanted in the uterus of the defendant no. 1 through IVF with the intention that defendant no. 1 shall carry the pregnancy to its full term and thereafter, the child born will be handed over to the plaintiffs.
5. Thereafter, in execution of the agreement dated 15.02.2019, defendant no. 1 gave birth to a girl child namely Zoe Olivia Suppiah on 26.10.2019 in Max Hospital at Saket and immediately thereafter the child was handed over by the defendants to the plaintiffs and consequently in the birth certificate of the child the name of the parents is reflected as that of plaintiffs.
6. It is the claim of the plaintiffs that defendants have occasionally tried to contact the child, which has raised apprehension in the minds of the plaintiffs that the defendants may develop an emotional bond with the child, which may lead to breach of the terms of a contract.
CS SCJ No.1758/22 SADEESH PREMANANTH SUPPIAH Vs. MRS. POOJA DAS PAGE 3 OF 9 Hence, the present suit seeking the relief of declaration that plaintiff no. 1 & 2 are the legal parents of the girl child namely Zoe Olivia Suppiah and therefore the child is eligible for all the rights and privileges available to a natural child under any law for the time being in force.
7. Summons of the suit were sent, which stood served upon the defendant by way of substituted service. Despite service, defendant failed to appear and contest the present suit. Accordingly, the proceedings against the defendant were set ex-parte vide order dated 21.07.2023.
8. Thereafter, ex-parte plaintiff's evidence was led.
9. To prove their case, plaintiff no. 1 examined himself as PW-1 as the witness who tendered his evidence by way of affidavit Ex.PW1/X and relied upon the following documents: -
1. Marriage certificate is exhibited as Ex.PW1/1(OSR).
2. Aadhar Card is exhibited as Ex.PW1/2(OSR).
3. Gestational Surrogacy Agreement dated 15.02.2019 alongwith annexure A & B are exhibited as Ex.PW1/3(Colly.)(OSR). Running into 35 pages.
4. Declaration of intent signed by defendant no. 1 on 15.02.2019 is exhibited as Ex.PW1/4(OSR). Running into 2 pages.
5. Affidavit dated 15.02.2019 is exhibited as Ex.PW1/5(OSR).
6. Discharge summary issued by Max Hospital, Saket is exhibited as Ex.PW1/6(OSR). Running into 4 pages.
7. Birth certificate of the minor Miss Zoe Olivia Suppiah is exhibited CS SCJ No.1758/22 SADEESH PREMANANTH SUPPIAH Vs. MRS. POOJA DAS PAGE 4 OF 9 as Ex.PW1/7.
8. Certificate u/s 65B of IEA is exhibited as Ex.PW1/Y.
10. To prove their case, plaintiff no. 2 examined herself as PW-2 as the witness who tendered his evidence by way of affidavit Ex.PW2/X and relied upon the following documents: -
1. My Passport is exhibited as Ex.PW2/1(OSR).
2. Certificate of registration as overseas citizen on India Card Holder is exhibited as Ex.PW2/2(OSR).
3. Aadhar Card is exhibited as Ex.PW2/3(OSR).
11. Since none appeared for the defendants when the plaintiff was to be examined, the evidence was recorded ex-parte. Thereafter, plaintiff closed its ex-parte evidence on 14.09.2023, and the matter was posted for ex-parte final arguments.
12. During the course of final arguments, the Ld. counsel for plaintiffs relied on the aforesaid exhibited documents and the unrebutted deposition of PW1 and PW-2 to pray for a decree of suit for the aforesaid relief.
13. Heard the ex-parte final arguments advanced by counsel for plaintiff. This court has carefully perused the evidence on record in light of the pleadings of the plaintiff and considered the oral submissions of counsel for plaintiffs as well as written submissions filed on behalf of plaintiffs.
CS SCJ No.1758/22 SADEESH PREMANANTH SUPPIAH Vs. MRS. POOJA DAS PAGE 5 OF 9
14. The Surrogacy (Regulation) Act was enacted on 25.12.2021 and came into force in January, 2022, however, the surrogacy agreement in the present case was entered prior to the enactment of Surrogacy (Regulation) Act, 2021 and thus the Act doesn't apply to the present case. Before the passing of the Act, National Guidelines for accreditation, supervision, regulation of ART Clinics by the ICMR and the National Academy of National Sciences had issued guidelines which guided the intending couples through the process of Surrogacy. Also, the Law commission of India dealt with Surrogacy in its 228nd report. These two documents provided guidance for dealing with Surrogacy arrangements/agreements in India before passing of the Act. Further, Chapter 3 of Indian Council for Medical Research(ICMR) guidelines and the Law commission report are relevant. The ICMR guidelines specifically provides the following clauses:-
3.5.5 A third party donor and a surrogate mother must relinquish in writing all parental rights concerning the offspring and vice versa.
3.12.1. A child born through ART shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both the spouses. Therefore, the child shall have a legal right to parental support, inheritance, and all other privileges of a child born to a couple through sexual intercourse.
15. Further, in the 228th Law Commission report, it has been CS SCJ No.1758/22 SADEESH PREMANANTH SUPPIAH Vs. MRS. POOJA DAS PAGE 6 OF 9 provided that:-
"In India, according to the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birthcertificate is made in the name of the genetic parents."
The report no. 228 of the law commission of India also relies on the said guidelines".
16. Therefore, it is clear that at the time of the agreement Ex.PW1/3(colly) in the present case there was no statute which governed surrogacy in India, however, the guidelines issued by the ICMR did regulate surrogacy arrangements in India. It clearly provides that the child shall be considered as the legitimate child of the couple born within the wedlock and with all the right of parentage, support and inheritance. Further, it is clear that at the time of execution of agreement Ex.PW1/3(colly) there was no law which barred parties from entering into such gestational agreements, meaning thereby that the surrogacy agreement entered between the parties is a legal and executable agreement, if the conditions of the Indian Contract Act, Section 10 are met. In the instant case, all the parties were competent to contract and there is no nothing on record to show the contrary. Therefore, it can be clearly inferred that the agreement entered into between the parties in this case is legal and executable.
CS SCJ No.1758/22 SADEESH PREMANANTH SUPPIAH Vs. MRS. POOJA DAS PAGE 7 OF 9
17. In the instant case, the surrogacy agreement was entered into between the plaintiffs and the defendants on 26.10.2019, after which the baby girl namely Zoe Olivia Suppiah was born. In the birth certificate of child Zoe Olivia Suppiah, the name of the mother and the father is that of the plaintiffs i.e. Sadeesh Premananth Suppiah and Anne Meike Jahn.
18. It is pertinent to reproduce clause 3.1.19 and 4.2 of Recitals of the Surrogacy Agreement Ex.PW1/3(colly) which provides that :
3.1.19 She will never claim any right nor make any claim over and in respect of the Child and she unequivocally accepts, agrees, acknowledges, confirms and declares that the Child, which she will give birth out of the embryo(s) through IVF, shall contractually and genetically belong to the Intended Parents and therefore, she and/or her husband shall have no claim over the Child nor shall they claim any right in respect of the Child. She further confirms and declares that in giving birth of the Child she will only perform her contractual obligations under this Agreement towards the Intended Parents and not any marital obligations arising out of conjugal relationship and lawful wedlock with the Confirming Party.
4.2 Upon giving birth to the Child, the surrogate motherhood of the Surrogate Mother shall stand perpetually extinguished and the contractual relationship between the Surrogate Mother and the Child shall stand perpetually severed. disassociated and come to an end.
19. The baby girl namely Zoe Olivia Suppiah is in the custody of plaintiffs since her birth. Thus, keeping in view the pleadings in this case, the evidence led by the plaintiffs, the ICMR guidelines and 228nd law commission report, I CS SCJ No.1758/22 SADEESH PREMANANTH SUPPIAH Vs. MRS. POOJA DAS PAGE 8 OF 9 am of the considered opinion that the plaintiffs are entitled to relief of declaration and injunction.
RELIEF
20. In view of the foregoing reasons, the present suit is decreed in favour of the plaintiffs and against the defendant no. 1 and 2. It is declared that the plaintiffs namely Sadeesh Premananth Suppiah and Anne Meike Jahn are the legal and biological / genetic parents of the baby girl namely Zoe Olivia Suppiah born on 26.10.2019 at Max Hospital, Saket for all intents and purposes and defendant no. 1 and 2 have no parental rights over the baby girl. Further, it is also held that child namely Zoe Olivia Suppiah would be entitled to all the rights and privileges available to a natural child under any law for the time being in force.
21. Costs of the suit is also awarded in favour of the plaintiff.
22. Decree sheet be prepared accordingly accordingly.
23. File be consigned to Record-Room after due compliance.
Pronounced in the open (Charu Asiwal)
Court on 19.01.2024 Civil Judge-03, South East,
Saket Court, New Delhi.
19.01.2024
CS SCJ No.1758/22 SADEESH PREMANANTH SUPPIAH Vs. MRS. POOJA DAS PAGE 9 OF 9