Kerala High Court
Sreelakshmi G vs State Of Kerala on 10 March, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
W.P.(Crl.) No. 1039 of 2024
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2025:KER:20188
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 10TH DAY OF MARCH 2025 / 19TH PHALGUNA, 1946
WP(CRL.) NO. 1039 OF 2024
AGAINST THE ORDER DATED 22.05.2024 IN Crl.MP NO.1819 OF 2024
OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PATHANAMTHITTA
PETITIONERS:
1 SREELAKSHMI G
AGED 38 YEARS, W/O SOORAJ RAMACHANDRAN NAIR,
CHAITHANYA, ELNTHOOR P.O,
PATHANAMTHITTA, PIN - 689643
2 SOORAJ RAMACHANDRAN NAIR
AGED 42 YEARS, S/O. SOBHANA R NAIR,
CHAITHANYA, ELNTHOOR P.O, KOZHENCHERY,
PATHANAMTHITTA REPRESENTED BY
POWER OF ATTORNEY HOLDER
SREELAKSHMI. G, PIN - 689643
3 SARANYA T. B
AGED 27 YEARS, W/O. BINUMON M. K,
MADATHINGAL, UMANTHARA,
VTC: KOOLMUTTAM, KOOLMUTTAM.P.O
KODUNGALLUR, THRISSUR, PIN - 680691
BY ADVS.
SREEKANTH S.NAIR
DEEPA SREENIVASAN
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
SREEJA V., SR. PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 10.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(Crl.) No. 1039 of 2024
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2025:KER:20188
JUDGMENT
This writ petition has been filed to set aside Ext.P1 order passed by the Judicial First Class Magistrate Court-I, Pathanamthitta (for short, 'the trial court').
2. The 1st and 2nd petitioners are husband and wife. Though they underwent prolonged treatment for infertility, the 1st petitioner could not conceive. Hence, the 1st and 2nd petitioners opted for surrogacy as per the advice of the medical experts. The 3rd petitioner is the intended surrogate mother, who voluntarily agreed to altruistic surrogacy as per law. In order to get approval of surrogacy from the appropriate authority of Kerala State, the petitioners have to submit ten documents before the authority. Order of parentage and custody from Judicial First Class Magistrate is one of the documents out of the ten such documents to be produced before the Court. The petitioners filed a petition W.P.(Crl.) No. 1039 of 2024 ..3..
2025:KER:20188 under Section 4(iii)(a)(II) of the Surrogacy (Regulation) Act, 2021 before the trial court for parentage and custody of the child to be born through surrogacy. The trial court allowed the petition as per the Ext.P1 order, holding that the 1 st and 2nd petitioners, who are the biological parents of the child to be born through surrogacy conceived by the 3 rd petitioner are entitled to all rights, including parentage and custody of the child, under the Surrogacy (Regulation) Act, 2021.
3. After passing Ext. P1 order, due to the inconvenience of the 1st and 2nd petitioners, the petitioners together decided to stop the ongoing procedure to obtain eligibility certificate from the State for the time being. Therefore, the petitioners mutually agreed to set aside Ext.P1 due to change of circumstances. It is in these circumstances, they have approached this Court.
4. I have heard Sri.Sreekanth S. Nair, the learned counsel for the petitioners and Smt.V.Sreeja, the learned W.P.(Crl.) No. 1039 of 2024 ..4..
2025:KER:20188 Senior Public Prosecutor.
According to the petitioners, the 1 st petitioner is unable to stay in Kerala for a long time as she has started an online store in Riga Latvia. Ext.P1 order has not been produced before any authority. No surrogacy procedure has been conducted and no embryo has been transferred to the intended surrogate mother's uterus, i.e., the 3 rd petitioner till date. No application has also been submitted before the appropriate authority of Kerala State. Ext.P2 affidavit would show that the 1st petitioner already withdrew her acceptance of consent. On going through the entire facts and circumstances of the case, I am satisfied that there is sufficient cause to withdraw her acceptance of consent. As it was an agreement for non-commercial surrogacy, there is no chance of any kind of claim from the 3rd petitioner and she has affirmed the same. Ext.P4 affidavit sworn by the 3 rd petitioner would show that she has also legally agreed to W.P.(Crl.) No. 1039 of 2024 ..5..
2025:KER:20188 withdraw her consent as per Section 6 (ii) of the Surrogacy (Regulation) Act. In fact, Ext.P1 order has practically become infructuous due to the change of circumstances. Hence, this writ petition is allowed and Ext.P1 order is set aside.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE APA W.P.(Crl.) No. 1039 of 2024 ..6..
2025:KER:20188 APPENDIX OF WP(CRL.) 1039/2024 PETITIONER EXHIBITS EXHIBIT P1 THE CERTIFIED COPY OF THE ORDER OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PATHANAMTHITTA IN CMP NO.1819/2024 DATED 22.05.2024. EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT OF WITHDRAWAL OF ACCEPTANCE OF CONSENT BY THE 1ST PETITIONER FOR HERSELF AND ON BEHALF OF THE 2ND PETITIONER DATED 14.08.2024.
EXHIBIT P3 TRUE COPY OF THE AGREEMENT IN FORM NO. 2 UNDER SURROGACY REGULATION ACT WHICH IS DULY SIGNED BY ALL THE PETITIONERS DATED 17.04.2024.
EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT TO WITHDRAW THE
CONSENT OF THE 3RD PETITIONER DATED
14.08.2024.