Delhi District Court
Kuldeep Singh And Anr vs Mithu Roy And Ors on 30 November, 2023
IN THE COURT OF SH. UMESH KUMAR, CIVIL JUDGE-01, SOUTH
EAST DISTRICT, SAKET COURTS, NEW DELHI
Presiding Officer: Sh. Umesh Kumar, DJS
Suit No. 902/2021
In the matter of:-
1. Mr. Kuldeep Singh
Son of Sh. Sardar Singh
Presently Resident of 1/11589, Street No.4,
Subhash Park Extension, Shahdara,
Delhi-110032
Also at:-
290, Stocksfield Road,
Walthamstow E17 3LR,
London (U.K)
2.Mrs. Sushila Rani,
W/o Mr. Kuldeep Singh,
Presently Resident of 1/11589, Street No.4,
Subhash Park Extension, Shahdara,
Delhi-110032
Also at:-
290, Stocksfield Road,
Walthamstow E17 3LR,
London (U.K) .....Plaintiff
Vs.
Mrs. Mithu Roy
W/o Mr. Rakesh Roy,
R/o P/s Bariapur
P.O. Ghola Betberia
West Bengal.
2. Mr. Rakesh Roy,
Son of Mr. Not Known
R/o P/s Bariapur
P.O. Ghola Betberia
West Bengal. ...Defendants
Date of institution of Suit : 12.08.2021
Date on which Judgment was reserved : 05.10.2023
Date of pronouncement of the Judgment : 30.11.2023
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JUDGEMENT
1. The plaintiffs have instituted the present suit for a decree of declaration in favour of the plaintiffs thereby declaring the plaintiffs as legal/ natural parents of the baby boy named as 'Harshdeep Singh' for all intents and also that defendants have no parental rights over him. Further, the plaintiffs have claimed a relief of permanent / perpetua injunction against the defendants whereby restraining them from acting in contravention to the parental rights of the plaintiffs. The plaintiffs have also claimed a decree thereby ordering the defendants to provide / handover all original documents of surrogacy and complete medical records to the plaintiff.
2. The defendant no.1 and 2 are husband and wife. Defendant no.1 acted as Surrogate mother for the plaintiffs and defendant no.2 is the husband of defendant no.1. Defendant no.3 i.e. Dr. Anoop Gupta is an Infertility Specialist and Director of Delhi IVF Fetility Clinic, who is a treating doctor.
3. The brief facts as claimed by the plaintiffs are that the plaintiffs were unable to conceive naturally but were desiring to have their own child since long. One of the relative of plaintiffs in London suggested the name of defendant no.3 about the Surrogacy procedure in India. Plaintiffs came from London to meet the defendant no.3 some where in March 2016. Defendant no. 1 agreed to act as surrogate mother with the consent and approval of her husband i.e. defendant no.2. On 22.03.2017 defendant no.3 advised the plaintiff no.1 for semen sample collection and on 24.03.2017, the office of defendant no.3 asked the plaintiff no.1 to execute the Surrogacy Agreement with the Surrogate (defendant no.1). The term of the agreement provided that the defendant no.1 would act as a surrogate CS No.902/2021 Kuldeep Singh & Anr vs. Mithu Roy & Ors 2 of 8 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 defendant no.1 (Surrogate) conceived and at that time, plaintiffs were in London. On 30.05.2017, defendant no.3 called the plaintiffs and plaintiffs came back to India on 20.07.2017. Plaintiff no.2 came to the defendant no.3's clinic to sign the agreement. It is alleged that the plaintiffs were not provided any copy of document/ agreement. Thereafter, the defendant no. 1 gave birth to a baby boy (named as Harshdeep Singh) on 15.02.2018 under the surrogacy agreement through IVF. After few weeks, the plaintiffs came to defendant no.3's clinic to take the Surrogacy document and medical reports, but the same were not provided except birth certificate. Despite repeatedly asked for the documents, the plaintiffs instead of documents and medical records, received a letter dated 18.08.2018 from defendant no.3 and made false and baseless allegations against the plaintiffs about the change to British Nationality from Indian Nationality. Defendant no.3 had already known the fact that plaintiffs are the foreign nationals but instead of resolve the issue, defendant no.3 did not give any documents. Plaintiffs have filed review but each time vide letters dated 21.09.2020 and 19.10.2020, rejected the claim of automatic British Citizenship / passport of Master Harshdeep Singh. The plaintiffs have complied with all the steps in terms of the guidelines for ART Clinics formulated by ICMR /NAMS and Report of Law Commission of India, which are being used as guidelines for regulating Surrogacy in India. It is stated that in terms of the agreement, defendants gave the custody of the baby boy named Harshdeep Singh to the plaintiffs, but the consent of the surrogate and her husband has not been provided. It is stated CS No.902/2021 Kuldeep Singh & Anr vs. Mithu Roy & Ors 3 of 8 that the defendants are yet to perform a part of their obligations (including the delivery of surrogacy documents) by law so that plaintiffs can exercise their parental rights. Though there is no dispute and no denial of the factum that the plaintiffs are parents of the baby boy, plaintiff cannot exercise the parental rights due to lack of supporting evidence. Therefore, the plaintiffs have filed the present suit seeking the aforesaid reliefs in favour of the plaintiffs.
4. Summons of the suit were sent, which stood served upon the defendants.
Upon service, defendant no.3 has appeared before the court through counsel filed written statement. Despite service, defendant no.1 and 2 neither appeared nor contested the present suit. Accordingly, the defendant no.1 and 2 was proceeded ex-parte vide order dated 11.05.2022.
5. Since the present suit was originally filed against the three defendants.
However, vide joint statement of plaintiffs dated 06.04.2023, plaintiffs have stated that they have received the required medical records from the defendant no.3 and they have engaged the attorney to apply before the U.K High Commission for the citizenship and passport of the child. Plaintiffs further stated that since they have received the requisite documents from defendant no.3, the relief mentioned in clause (c) in prayer clause stands satisfied and they do not claim any further relief against defendant no.3. Accordingly, defendant no.3 was dropped from the present proceedings and suit proceeded only against defendant no.1 and 2.
6. To prove their case, plaintiff no.1 i.e. Mr. Kuldeep Singh examined himself as PW-1 and tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents: -
(i) Copy of Passport of plaintiff no.1 Ex.PW1/1 CS No.902/2021 Kuldeep Singh & Anr vs. Mithu Roy & Ors 4 of 8
(ii) Copy of payment receipts Ex.PW1/2 (colly)
(iii) Copy of semen analysis report Ex.PW1/3
(iv) Copy of Surrogacy Agreement Ex.PW1/4 (colly)
(v) Copy of Medical reports (ultrasound scan/ fetal medicine report, discharge summary and birth certificate of child) Ex.PW1/5 (colly)
(vi) Copy of letter dated 18.08.2018 Ex.PW1/6 (colly)
(vii) Copy of letter dated 14.02.2019, 21.09.2020 and 19.10.2020 Ex.PW1/7 (colly)
(viii) Copy of letter dated 25.05.2021 Ex.PW1/8
7. Plaintiff no.2 Mrs. Sushila Rani was examined as PW-2 who tendered her evidence by way of affidavit Ex.PW2/B and relied upon the following documents: -
(i) Copy of Passport of plaintiff no.2 Ex.PW2/1
(ii) Copy of medical certificate from hospital Ex.PW2/2 (OSR)
8. 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 29.05.2023, and the matter was posted for ex-parte final arguments.
9. 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 reliefs.
10. 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.
11. The Surrogacy (Regulation) Act was enacted on 25.12.2021 and came into force in January, 2022, however, the surrogacy CS No.902/2021 Kuldeep Singh & Anr vs. Mithu Roy & Ors 5 of 8 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 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.
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 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".
13. Therefore, it is clear that at the time of the agreement Ex.PW1/4 (colly) in CS No.902/2021 Kuldeep Singh & Anr vs. Mithu Roy & Ors 6 of 8 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.PW1/4 (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.
14. In the instant case, the surrogacy agreement was entered into between the plaintiffs and the defendants on 24.03.2017, after which the baby boy namely Harshdeep Singh was born. In the birth certificate of child Harshdeep Singh, the name of the mother and the father is that of Sushila Rani and Kuldeep Singh respectively i.e. the plaintiffs.
15. It is pertinent to reproduce clause (F) of Recitals of the Surrogacy Agreement Ex.PW1/4 (colly) which provides that :
" F. That the Surrogate and her husband desire and intend that any child born pursuant to this Agreement shall be morally, ethically, legally, contractually and otherwise the child of the Intended Parents for all purposes, that the Intended Parents shall assume all legal and parental rights and responsibility for the Child, and that Surrogate and her husband do not desire nor intend to assume a parental or any other type of relationship with the Child. Surrogate and her husband specifically relinquish any and all rights, responsibilities, an claims with respect to a Child born pursuant to this Agreement, CS No.902/2021 Kuldeep Singh & Anr vs. Mithu Roy & Ors 7 of 8 and specifically agree that it is in the best interest of the Child that the Child be raised by the Intended Parents and be the Child of the Intended Parents for all purposes, without interference by Surrogate and / or her husband."
16. The baby boy namely Harshdeep Singh is in the custody of plaintiffs since his 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 am of the considered opinion that the plaintiffs are entitled to relief of declaration and injunction.
Relief
17. 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 Sushila Rani and Kuldeep Singh are the legal and biological / genetic parents of the baby boy namely Harshdeep Singh born on 15.02.2018 at Manav Medicare Centre, New Delhi, for all intents and purposes and defendant no.1 and 2 have no parental rights over the baby boy. Further, the defendants are restrained from acting in contravention of the terms of the Gestational Surrogacy Agreement dated 24.03.2017.
18. Parties to bear their own cost.
19. Decree sheet be prepared accordingly.
20. File be consigned to Record-Room after due compliance.
Pronounced in the open (Umesh Kumar)
Court on 30.11.2023 Civil Judge-01, South East,
Saket Court, New Delhi.
30.11.2023
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