Delhi District Court
Manas Dwivedi & Anr. vs . Rani Barman & Anr. on 21 November, 2022
IN THE COURT OF SH. DEEPAK VATS
Administrative Civil Judge - Commercial Civil Judge
Additional Rent Controller
SouthEast, Saket Courts, Delhi
CS No.984/2022
Manas Dwivedi & Anr. Vs. Rani Barman & Anr.
1. Mr. Manas Dwivedi
S/o Sh. Harish Kumar Dwivedi
R/o Flat No.F, 26th Floor,
Block 25, Park Island, Ma Wan, Hong Kong
Also at:
C5/104, Sahara City Homes,
Near IIM Bypass, Lucknow,
Uttar Pradesh, India.
2. Mrs. Ranjana Dwivedi
W/o Mr. Manas Dwivedi
R/o Flat No.F, 26th Floor,
Block 25, Park Island, Ma Wan, Hong Kong
Also at:
C5/104, Sahara City Homes,
Near IIM Bypass, Lucknow,
Uttar Pradesh, India.
.... Plaintiffs
Versus
1. Mrs. Rani Barman
W/o Mr. Prosun Barman,
R/o House No.343, Gali A1,
Sriniwaspuri, New Delhi.
Also at:
Permanent address is Khajura, Khajuraka Tala,
Khajura, Nalanda, Bihar801305.
_____________________________________________________________________________________
CS No.984/2022 DEEPAK Digitally signed by DEEPAK
VATS
Manas Dwivedi & Anr. Vs. Rani Barman & Anr. VATS Date: 2022.11.21 16:22:36
+0530
Page no.1 of 11
2. Mr. Prosun Barman,
S/o Mr. Mahesh,
R/o House No.343, Gali A1,
Sriniwaspuri, New Delhi.
Also at:
Permanent address is Khajura, Khajuraka Tala,
Khajura, Nalanda, Bihar801305.
..... Defendants
Date of institution : 05.07.2022
Arguments heard : 11.11.2022
Date of order : 21.11.2022
SUIT FOR DECLARATION AND PERMANENT/PERPETUAL
INJUNCTION
JUDGMENT:
1. By this judgment I shall dispose of a suit for declaration/perpetual injunction filed by the plaintiff against the defendant. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
PLEADINGS OF THE PLAINTIFF :
2. The plaintiffs have filed a suit against the defendants seeking the relief of declaration that the plaintiffs are the legal parents of the baby boy named as Veer Dwivedi for all intents and purposes _____________________________________________________________________________________ CS No.984/2022 DEEPAK Digitally signed by DEEPAK VATS Manas Dwivedi & Anr. Vs. Rani Barman & Anr. VATS Date: 2022.11.21 16:22:48 +0530 Page no.2 of 11 and also that the defendants have no parental rights over him. Further, the plaintiffs have claimed a relief of injunction against the defendants restraining them from acting in contravention to the terms of the Gestational Surrogacy Agreement dated 28.08.2019.
3. The brief facts as claimed by the plaintiffs are that the plaintiffs opted for Gestational Surrogacy and entered into a Gestational surrogacy agreement dated 28.08.2019 with the defendants. Defendant no. 1 agreed to act as surrogate mother with the consent and approval of her husband i.e. defendant no.2. As per the agreement, the surrogate mother would just be a gestational carrier and not biologically related to the child. The term of the agreement further provided that the defendant no.1 would act as a surrogate mother and would give birth to the child of the plaintiffs by way of embryo transfer in the uterus of the defendant no.1 through IVF process. It was further agreed that the defendants shall have no say and shall have no objections with respect to the intended father and mother being the parents and the sole custodian of the child so born in pursuance of the said surrogacy agreement. The defendants had agreed to fulfill their obligations under the terms of the agreement. Thereafter, the defendant no. 1 gave birth to a baby boy on 15.08.2020 through the IVF process under the surrogacy agreement. The defendants fulfilled their obligations in the terms of the agreement and gave the custody of the said baby boy now named as Veer Dwivedi to the plaintiffs. Though there is no denial that the plaintiffs are the parents of the baby boy but the plaintiffs have apprehension that in future the defendants may _____________________________________________________________________________________ CS No.984/2022 DEEPAK Digitally signed by DEEPAK VATS Manas Dwivedi & Anr. Vs. Rani Barman & Anr. VATS Date: 2022.11.21 16:23:00 +0530 Page no.3 of 11 claim the custody of the baby boy. Therefore, the plaintiffs have filed the suit seeking declaration and injunction in their favour.
4. In the written statement filed by the defendants, the defendants admitted the averments of the plaintiffs and have further asserted that they have fulfilled their obligations under the agreement and have nothing to do either with the plaintiff or with the baby boy. The defendants further admitted that the said baby boy for all intents and purposes is the child of the plaintiffs. It has been further asserted that the defendant no.2 is not anyway related to the baby boy born out of the surrogacy agreement and has nothing to do with the child. It has been further asserted by the defendants that they have no intention of claiming any right or stake over the baby boy born out the surrogacy agreement. It has been further averred in the written statement that the defendants have already given undertaking that they would not claim any stake or right over the custody of the child or act in contravention to the terms of the agreement. Lastly, the defendants have stated that they have no objection if the rights of the plaintiffs are crystalised and decree is passed in favour of the plaintiffs.
ISSUES
5. After the completion of pleadings, following issues were framed on 06.10.2022:
1. Whether the plaintiffs are entitled for a decree of declaration in favour of the plaintiffs whereby declaring the plaintiffs as the legal/natural parents of the baby boy _____________________________________________________________________________________ CS No.984/2022 DEEPAK Digitally signed by DEEPAK VATS Manas Dwivedi & Anr. Vs. Rani Barman & Anr. VATS Date: 2022.11.21 16:23:11 +0530 Page no.4 of 11 named as Veer Dwivedi for all the intents and purposes and also that the defendants have no parental rights over the baby boy? OPP
2. Whether the plaintiffs are entitled for a decree of permanent/perpetual injunction in the favour of the plaintiffs and against the defendants whereby restraining the defendants from acting in contravention to the terms of the Gestational Surrogacy Agreement dated 28.08.2019 and the parties shall remain bound by the terms of the agreement? OPP
3. Relief PLAINTIFF'S EVIDENCE
6. In support of his case, plaintiff no.1 has examined only himself as PW1 and tendered his evidence by way of affidavit which is Ex.PW1/1 and reiterated the contents of the plaint on oath. PW1 relied upon the following documents:
(i) Mark PW1/1 (copy of gestational surrogacy agreement;
(ii) Ex.PW1/2 (copy of the birth certificate of the child);
(iii) Mark PW1/4 (copy of passport to child);
(iv) Mark PW1/5 (copy of passport of plaintiff no.1);
(v) Mark PW1/2 & Mark PW1/3 (the copies of Aadhar Card and passport of plaintiff no.2).
7. PW1 was crossexamined by the Ld. Counsel for the _____________________________________________________________________________________ CS No.984/2022 DEEPAK Digitally signed by DEEPAK VATS Manas Dwivedi & Anr. Vs. Rani Barman & Anr. VATS Date: 2022.11.21 16:23:20 +0530 Page no.5 of 11 defendant. Petitioner admitted that the respondent have not acted in contravention to the terms of the Surrogacy Agreement dt. 28.08.2019.
DEFENDANT'S EVIDENCE
8. In her defence, the defendants have not examined any witness and closed the DE.
9. Final arguments were heard on behalf of both the parties. I have given my thoughtful consideration to the record and submissions of the parties. My issue wise findings are recorded herein below: Issue no. 1. Whether the plaintiffs are entitled for a decree of declaration in favour of the plaintiffs whereby declaring the plaintiffs as the legal/natural parents of the baby boy named as Veer Dwivedi for all the intents and purposes and also that the defendants have no parental rights over the baby boy? OPP Issue no. 2. Whether the plaintiffs are entitled for a decree of permanent/perpetual injunction in the favour of the plaintiffs and against the defendants whereby restraining the defendants from acting in contravention to the terms of the Gestational Surrogacy Agreement dated 28.08.2019 and the parties shall remain bound by the terms of the agreement? OPP
10. Both the issues involve common question of facts and law and thus are taken up together. Perusal of the pleadings shows that the defendants claim no right over the child whatsoever and have no objection if the suit is decreed in favour of the plaintiff. The defendants have stated that they have fulfilled the terms of agreement and have never claimed any right over the child Veer Dwivedi. However, before _____________________________________________________________________________________ CS No.984/2022 DEEPAK VATS Digitally signed by DEEPAK VATS Date: 2022.11.21 16:23:31 +0530 Manas Dwivedi & Anr. Vs. Rani Barman & Anr.
Page no.6 of 11 proceeding further, it is pertinent to understand the law pertaining to surrogacy in India.
11. 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. Ld. counsel for the plaintiff has filed on record Chapter 3 of the ICMR guidelines and the Law commission report for perusal. The ICMR guidelines specifically provides the following clauses:
3.5.5 A thirdparty 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.
_____________________________________________________________________________________ CS No.984/2022 DEEPAK Digitally signed by DEEPAK VATS Manas Dwivedi & Anr. Vs. Rani Barman & Anr. VATS Date: 2022.11.21 16:23:42 +0530 Page no.7 of 11
12. Further, in the 228th Law Commission report, it has been 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 birth certificate 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.
13. Therefore, it is clear that at the time of the agreement in question 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 will 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 there is no law which bars parties from entering into such gestational agreements, meaning thereby that the 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 objection by the defendants as to the agreement. Therefore, the agreement entered into between the parties in this case is legal and executable.
14. In the instant case, the surrogacy agreement was entered _____________________________________________________________________________________ CS No.984/2022 DEEPAK Digitally signed by DEEPAK VATS VATS Date: 2022.11.21 16:23:53 Manas Dwivedi & Anr. Vs. Rani Barman & Anr. +0530 Page no.8 of 11 into between the plaintiffs and the defendants on 28.08.2019, after which the baby boy namely Veer Dwivedi was born. Both the parties claim and admit that they have fulfilled their part of the obligations in the agreement.
15. In the birth certificate of child Veer Dwivedi, the name of the mother and the father is that of Mrs. Ranjana Dwivedi and Mr. Manas Dwivedi respectively i.e. the plaintiffs.
16. It is pertinent to reproduce clause 3.1.19 of the agreement which provides that :
"She (surrogate mother) will never claim any right nor make any claim over in respect of the child and she unequivocally accepts, agrees, acknowledges, confirms and declares that the Child, which she will give birth 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 th 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 material obligations arising out of conjugal relationship and lawful wedlock with the Confirming party."
17. Further, the defendants have admitted the averments made in the plaint in their WS and have stated that the agreement dt. 28.08.2019 was entered into between the parties, that the defendants have fulfilled their obligations under the agreement by handing over the baby boy to the plaintiffs and that the baby boy for all intents and purposes is the child of the plaintiffs and the defendants have nothing _____________________________________________________________________________________ CS No.984/2022 DEEPAK Digitally signed by DEEPAK VATS Manas Dwivedi & Anr. Vs. Rani Barman & Anr. VATS Date: 2022.11.21 16:24:02 +0530 Page no.9 of 11 to do with the said baby boy. During the P.E. also, the defendants have only crossexamined PW1 to show that they have never claimed any right over the baby boy. The defendants have not even lead any D.E.
18. Thus, keeping in view the pleadings in this case, the contents of the WS, the crossexamination of PW1, the ICMR guidelines and 228nd law commission report, I am of the considered opinion that the plaintiff is entitled to relief of declaration and injunction. Accordingly, both the issues no. 1 & 2 are decided in favour of the plaintiffs.
RELIEF
19. In view of reasons and findings given above, the suit of the plaintiff is decreed and following reliefs are granted in favour of the plaintiffs and against the defendants:
(a) Decree of declaration in favour of the plaintiffs is passed thereby declaring the plaintiffs as the Legal/ natural parents of the Baby Boy named as Veer Dwivedit for all the intents and purposes and also that the defendants have no parental rights over the baby boy (Veer Dwivedi);
(b) Decree of permanent/perpetual injunction is passed in the favour of the plaintiff and against the defendants thereby restraining the defendants from acting in contravention to the terms of the Gestational Surrogacy Agreement dated 28.08.2019 _____________________________________________________________________________________ CS No.984/2022 DEEPAK Digitally signed by DEEPAK VATS Manas Dwivedi & Anr. Vs. Rani Barman & Anr. VATS Date: 2022.11.21 16:24:13 +0530 Page no.10 of 11 and the parties shall remain bound by the terms of the agreement;
20. Parties to bear their own cost.
22. Decree be prepared accordingly.
23. File be consigned to record room accordingly.
Digitally signed by DEEPAK DEEPAK VATS Announced in open Court VATS Date: 2022.11.21 16:24:20 +0530 st on 21 November, 2022 (Deepak Vats) ACJcumCCJcumARC (South East) Saket Courts, New Delhi
_____________________________________________________________________________________ CS No.984/2022 Manas Dwivedi & Anr. Vs. Rani Barman & Anr.
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