Delhi District Court
Abhishek Mishra vs Chandana Mandal on 23 October, 2024
CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal
In the Court of Ms. Neetu Nagar, Judge Small Causes Court cum
Additional Senior Civil Judge cum Guardian Judge, South East
District, Saket Courts, New Delhi
CS SCJ No. : 1025/2024
CNR No. : DLSE03-001608-2024
In the matter of:
1. Abhishek Mishra S/o Sh. Shyam Prakash Mishra
R/o. 3/18, Canberra Street, Oxley Park,
NSW-2760, Australia
Presently At:
C-29, Sector 47, Noida, 201301
2. Ranu Mishra W/o Abhishek Mishra
R/o. 3/18, Canberra Street, Oxley Park,
NSW-2760, Australia
Presently At:
C-29, Sector 47, Noida, 201301
... Plaintiffs
VERSUS
1. Chandana Mandal W/o Bhupati Mandal
R/o C-87, Kallu Mohalla, Garhi East of Kailash,
South Delhi-110065
2. Bhupati Mandal S/o Lakhan Mandal
R/o C-87, Kallu Mohalla, Garhi East of Kailash,
South Delhi-110065 .... Defendants
SUIT FOR DECLARATION FOR DECLARING PLAINTIFFS
AS LEGAL PARENTS OF TWINS MASTER ATHARV
MISHRA AND BABY ANAISHA MISHRA ON THE BASIS
OF REGISTERD ADOPTION DEED DATED 05.06.2024
********
Digitally
signed by
(Neetu Nagar) NEETU
JSCC-ASCJ-GJ/South East NEETU NAGAR
Delhi:23.10.2024 Page 1 of 11 NAGAR Date:
2024.10.23
16:22:56
+0530
CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal
Date of Institution of the case : 07.08.2024
Final arguments heard : 16.10.2024
Date of pronouncement of judgment : 23.10.2024
Decision of the Suit : Decreed.
*******
JUDGMENT
*******
1. Vide this judgment, I shall dispose of the present suit filed by Sh. Abhishek Mishra and Smt. Ranu Mishra (hereinafter referred to as the "plaintiffs") seeking declaration for declaring the plaintiffs as Legal Parents of Twins Master Atharv Mishra and Baby Anaisha Mishra on the basis of registered adoption deed dated 05.06.2024.
FACTUAL MATRIX 2.1. It is submitted that the Plaintiffs (who are husband and wife) are Adoptive Parents of twins namely Master Atharv Mishra And Baby Anaisha Mishra. The Defendant No. 1 is the Birth Mother of the twins, while Defendant No.2 is the husband of Defendant No. 1.Being unable to conceive a child naturally, owing to long term fertility issues, the Plaintiffs who are Citizens of India but residents of Australia came to India and underwent Gestational Surrogacy in the year 2019 at a Hospital in New Delhi known as SCI Healthcare, Kailash Colony, New Delhi. 2.2. It is asserted that the Plaintiffs entered into a Gesta- tional Surrogacy Agreement Dated 02.05.2019 with the Defen- dants whereby Defendant No.1 agreed to be a surrogate mother Digitally (Neetu Nagar) signed by JSCC-ASCJ-GJ/South East NEETU NEETU NAGAR Delhi:23.10.2024 Page 2 of 11 NAGAR Date:
2024.10.23 16:23:01 +0530 CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal for them and to conceive a child by way of placement of embryos obtained by inseminating an anonymous donor's egg (oocyte) with the anonymous donor's sperm and transferring the same into the uterus of surrogate mother i.e. Defendant No.1 herein through IVF-ET process. The Defendant No.2 being husband of Defen- dant No.l became confirming party to the said agreement. In fur- therance of the Surrogacy Agreement, Defendant No.1 gave birth to twins Master Atharv Mishra And Baby Anaisha Mishra on 05.02.2020 in India and the custody of the children is with the plaintiffs since then.
2.3. It is further submitted that the plaintiffs filed Guardianship case before the Principal Judge, Family Courts, Pa-
tiala House Courts, New Delhi and the same got decreed in favour of the Plaintiffs vide detailed judgment dated 09.03.2021 passed in GP 05/2021.
2.4. It is stated next that the plaintiffs applied for the VISA of the children on 03.02.2022 which was refused and ob- jection was raised by the Department of Home Affairs, Aus- tralian Government that as in the present case embryo was the re- sult of donor ova and sperm, the Gestational Surrogacy Agree- ment would not result in the claimed parents being considered as the legal parents of the child unless appropriate adoption proce- dure was also followed after the birth of the child. The Depart- ment's overseas office also advised that the Guardianship Petition court order only appoints legal guardianship and custody of the NEETU NAGAR Digitally signed (Neetu Nagar) by NEETU JSCC-ASCJ-GJ/South East NAGAR Delhi:23.10.2024 Page 3 of 11 Date: 2024.10.23 16:23:06 +0530 CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal child to the plaintiffs herein does not confer legal parentage to the child.
2.5. It is further stated that to satisfy the abovesaid objec- tion raised by the Department of Home Affairs, Australian Gov- ernment, the plaintiffs approached the Sub Registrar of the con- cerned jurisdiction and lawfully entered into a formal adoption to become the legal parents of the children i.e. Atharv Mishra and Anaisha Mishra vide registered Adoption Deed dated 05.06.2024. Hence, the present suit seeking for the following re- liefs:
"(a) pass a decree of declaration declaring Plaintiffs i.e. Abhishek Mishra and Ranu Mishra as legal parents of the Twins-Master Atharv Mishra And Baby Anaisha Mishra on the basis of Regis- tered Adoption Deed dated 05.06.2024;
(b) pass a decree of declaration declaring that the plaintiffs can take the Twins-Master Atharv Mishra and Baby Anaisha Mishra outside the jurisdiction of the country India.
(c) grant any other relief, which this Hon'ble Court in the facts and circumstances of the case and interest of justice deems fit and proper in favour of the plaintiffs and against the defendants."
SUMMONING OF DEFENDANTS AND CHAIN OF SUBSEQUENT EVENTS
3. Summons were issued to the defendants on 08. 08. 2024. Defendants entered appearance before court and made separate statements on 11. 09. 2024 to the effect that they have no objection if the present suit is decreed in favour of the NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Delhi:23.10.2024 Page 4 of 11 Digitally signed by NEETU NAGAR Date: 2024.10.23 16:23:11 +0530 CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal plaintiffs and plaintiffs be declared legal parents of the twins- Master namely Atharv Mishra and Baby Anaisha Mishra on the basis of registered adoption deed dated 05.06.2024. Further, they have no objection if the plaintiffs take the twins-Master Atharv Mishra and Baby Anaisha Mishra outside the jurisdiction of India.
ARGUMENTS
4. I have heard learned counsel on behalf of the parties and have perused the record carefully.
ANALYSIS AND REASONING
5. At the outset, it is pertinent to mention that the defendants have no objection if the present suit is decreed. The Hon'ble High Court of Delhi in the case titled as Vijay Mayne Vs. Satya Bhushan Kumar, 2007 VII AD (DHC) 303 held in paragraph 12 that :-
"12. ..........Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitled the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely, in documents, NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by NEETU NAGAR Delhi:23.10.2024 Page 5 of 11 Date: 2024.10.23 16:23:16 +0530 CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored"
6. Hence, as per the above said judgment, the admissions can be in pleadings or in documents. The admission can even be constructive and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement. Under Order XII Rule 6 CPC, the Court on the application of plaintiff or on its own may make judgment upon the admission made by the opposite party. The object of this rule is to enable a party to get speedy judgment.
NEETU
(Neetu Nagar)
JSCC-ASCJ-GJ/South East NAGAR
Delhi:23.10.2024 Page 6 of 11
Digitally signed
by NEETU
NAGAR
Date: 2024.10.23
16:23:21 +0530
CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal
7. Perusal of the file shows that the Gestation Surrogacy agreement was executed on 02.05.2019. Earlier, there was no law governing surrogacy. As on date, the Surrogacy (Regulation) Act, 2021 has been passed and same has come into force on 25th January, 2021. However, the same is not applicable prior to the surrogacy agreement.
8. In Baby Manji Yamada Vs. U.O.I and Ors decided 29.09.2008, the Hon'ble Supreme Court of India held that the commercial Surrogacy was legal in India. The Surrogacy Agreements are governed by contract as entered into between the parties and certain Guidelines were given by the Indian Council for Medical Research. The Law Commission of India had also submitted the 228th report on subject in question and discussed the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:
1) Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NAGAR Delhi:23.10.2024 Page 7 of 11 Digitally signed by NEETU NAGAR Date: 2024.10.23 16:23:25 +0530 CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal parent(s), etc. But such an arrangement should not be for commercial purposes.
2) A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
3) A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
4) One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child−abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
5) Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
NEETU NAGAR (Neetu Nagar) Digitally signed JSCC-ASCJ-GJ/South East by NEETU NAGAR Delhi:23.10.2024 Page 8 of 11 Date: 2024.10.23 16:23:31 +0530 CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal
6) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
7) Right to privacy of donor as well as surrogate mother should be protected.
8) Sex−selective surrogacy should be prohibited.
9) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only. Thus, Surrogacy was/is legal in India and the parties can enter into the Surrogacy agreement.
9. From a perusal of rule four of the guidelines of Indian Council for medical research, it is amply clear that in case one of the parents is not the donor then adoption is the only way. In the present case, the intended parents are not donors due to which the application for Visa of the twins has been rejected.
10. Perusal of records further shows that the Birth Certifi- cate of the Twins is already in the favour of the plaintiff. Fur- ther, the plaintiffs also are the Legal Guardians and having per- manent custody of the children i.e. Master Atharv Mishra and Baby Anaisha Mishra is with the plaintiffs as clear from Judg- ment dated 09.03.2021 passed in GP 05/2021, Family Courts, Pa- tiala House Courts, New Delhi. The Relevant para of the above- said Judgment is reproduced herein:
"Accordingly, the petition is allowed and petition- ers no. 1 and 2 are appointed as lawful guardians of the minor twins Master Atharv Mishra and NEETU NAGAR Digitally signed (Neetu Nagar) by NEETU NAGAR JSCC-ASCJ-GJ/South East Date: 2024.10.23 Delhi:23.10.2024 Page 9 of 11 16:23:35 +0530 CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal Baby Anaisha Mishra. The petitioners are also en- titled for permanent custody of the twins. The peti- tioners are at liberty to take the twins alongwith them, to their place of residence, situated outside the jurisdiction of country of India, being the legal guardians."
11. It is also manifest that the plaintiffs have a Regis- tered Adoption Deed dated 05.06.2024 which declares them as legal parents of the above mentioned children.
12. Further, the Defendants reside and work for gain within the jurisdiction of this Hon'ble Court, hence this Hon 'ble court has the jurisdiction to try and entertain the present suit and the grant the relief prayed therein.
13. Hence, it is crystal clear that the Twins-Master Atharv Mishra And baby Anaisha Mishra were born to defendant no. 1 on 05.02.2020 while she was acting as surrogate for plain- tiffs and that the babies were born because of embryo transfer in uterus of defendant no. 1, formed out of fusion of egg and sperm of anonymous donors. It is thus clear that Twins-Master Atharv Mishra And Baby Anaisha Mishra are not genetically related to plaintiffs. Defendants have by way of their statements before Court have stated that they have no objection of any sort in de- creeing the suit.
14. In view of facts and circumstances of present case i.e. in view of documents filed by plaintiff, and admission by NEETU way of statements of the defendants before Court on 11.09.2024, NAGAR Digitally signed by NEETU NAGAR (Neetu Nagar) Date: 2024.10.23 JSCC-ASCJ-GJ/South East 16:23:40 +0530 Delhi:23.10.2024 Page 10 of 11 CS 1025/2024 Abhishek Mishra Vs. Chandana Mandal a decree is passed under Order 12 Rule 6 CPC in favour of plain- tiffs thereby declaring that the Plaintiffs i.e. Abhishek Mishra and Ranu Mishra are the legal parents of the Twins-Master Atharv Mishra And Baby Anaisha Mishra on the basis of Registered Adoption Deed dated 05.06.2024. Further, the plaintiffs are at liberty to take the Twins-Master Atharv Mishra And Baby Anaisha Mishra outside the jurisdiction of the country India. It is further directed that defendants shall remain bound by their state- ments dated 11.09.2024 given before Court. Decree-sheet be pre- pared accordingly. No order as to costs.
File be consigned to Record Room.
Digitally
Announced in the open signed by
NEETU
NEETU NAGAR
court today i.e. 23.10.2024 NAGAR Date:
2024.10.23
(This judgment contains 11 pages 16:23:45
+0530
signed by the undersigned)
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Delhi:23.10.2024 Page 11 of 11