Delhi District Court
Jai Kishan V. Persaud & Anr. vs . Tara Kumari & Anr. on 2 February, 2013
Jai Kishan V. Persaud & Anr. Vs. Tara Kumari & Anr.
IN THE COURT OF MS. SHREYA ARORA: CIVIL JUDGE1,
SOUTH DISTRICT, NEW DELHI
In the matter of
Suit No. 298/12
Case ID No. 02406
1. Jaikishan V. Persaud
S/o Mr. Ajodha Persaud
R/o 1019 West, 7th Street,
Plainfield, NJ 07063 USA.
2. Amanda Persaud
W/o Mr. Jaikishan V. Persaud
R/o 1019 West, 7th Street,
Plainfield, NJ 07063 USA.
Presently at
C30, Greater Kailash,
Near M Block Market,
New Delhi110 048. ...............Plaintiffs
Versus
1. Tara Kumari
W/o Mr. Ganga Ram
R/o 102/8, Garhi,
East of Kailash, New Delhi.
2. Mr. Ganga Ram
S/o Sh. Jallon Paswan
R/o 102/8, Garhi,
East of Kailash, New Delhi.
..............Defendants
Suit no. 298/12 Page 1 of 5
Jai Kishan V. Persaud & Anr. Vs. Tara Kumari & Anr.
Date of Institution : 11.09.2012
Date of reserving the Judgment : 16.01.2013
Date of pronouncement : 02.02.2013
Decision : Decreed
SUIT FOR DECLARATION
JUDGMENT
1. This is a suit for declaration. The plaintiffs have sought a decree of the following nature:
"(a) decree of declaration in favour of the plaintiffs whereby declaring that the plaintiffs are legal parents of the said child i.e. baby girl named Sahailey Elizabeth Persaud and the defendant No.2 is not the father of the said twins and;
(b) order directing that the defendants shall not act in contravention to the terms of surrogacy agreement dated 04th November, 2011 and the parties shall remain bound by the terms of the agreement;"
2. Pithily stated, the case set up by the plaintiffs is that they are the citizen/residents of United States of America and are residing at 1019 West, 7th Street, Plainfield, NJ 07063 USA. They had entered into one surrogacy agreement with the defendant no.1 on 04.11.2011. The defendant no.2, who is the husband of defendant no.1, was made a confirming party. As per this agreement arrangement was arrived at between the plaintiffs and the defendants that the defendant no.1 will act as a surrogate mother and will give birth to child/children of the plaintiffs by way of an embryo transfer in the uterus of the Suit no. 298/12 Page 2 of 5 Jai Kishan V. Persaud & Anr. Vs. Tara Kumari & Anr.
defendant no.1 through IVF process. It was categorically agreed that the plaintiffs shall be the legal parent and natural guardian of the child and the defendants shall not raise any objection whatsoever with respect to the intended Parents being the parents of the child. The plaintiff also give full financial support to the defendant no.1 during the term of pregnancy and complied with all the conditions stipulated in the said agreement with respect to financial terms and all medical related expenses. As per this agreement, the defendant no.1 had agreed to conceive, carry and give birth to the child of the plaintiffs out of her own free will and volition and defendant no.2, being the husband of the defendant no.1 had given his unequivocal consent and permission to her to become a surrogate and fulfill her obligation in this behalf, as agreed in the said surrogacy agreement. The detailed terms and conditions in this respect were stipulated in the agreement. Both the parties carried out their respective obligation under the agreement and defendant no.1 gave birth to a baby girl named Sahailey Elizabeth Persaud on 20.07.2012 at Eden Hospital, East of Kailash, New Delhi.
3. The plaintiff states that since the baby girl was born under the said surrogacy agreement and there is no denial of the fact that the plaintiffs are the legal parents of the child however since defendant no.1 has given birth to the said child during the subsistence of her marriage with the defendant no.2, as such, the presumption under the Indian Law is that the husband of defendant no.1 is the father of the said children, till the presumption is refuted. As such the present suit is filed Suit no. 298/12 Page 3 of 5 Jai Kishan V. Persaud & Anr. Vs. Tara Kumari & Anr.
for declaration as mentioned above.
4. Summons were issued to the defendants. They appeared and filed a joint written statement. In the written statement, they have accepted each and every averment made in the suit including entering into the said agreement and giving birth to a baby girl of the defendant no.1 as surrogate. The defendants state that they have no objection if the custody of the children is given to the plaintiffs and the plaintiffs are the legal parents of the said child.
5. There is no specific legislation/law which governs surrogacy in India. However, there are guidelines of Indian Council of Medical Research and National Academy of Medical Sciences. The Law Commission of India has also given its Report No.
228. According to the national guidelines for Accreditation/Supervision of ART Clinics, 2005 by ISMR/NAMS, the surrogate mother is not considered to be the legal mother. My predecessor under similar circumstances passed the decree of declaration in Suit No.144/2011 titled Hassan Ezadi Chamkhorami & Anr v. Mrs. Radha & Anr vide order dated 10.03.2011. Further even this court in the similar circumstances passed the decree of declaration in Suit No. 149/12 titled Dr. John Lanclot Leonardo v. Sunita & Anr. vide order dated 08.06.2012. Though these orders cannot be treated as a precedent, however, having regard to all the aforesaid facts and material placed on record, I have no reason not to take the same view in the present matter also.
6. I am also of the opinion that there is no impediment legal or otherwise in granting the decree as prayed for by the plaintiff, Suit no. 298/12 Page 4 of 5 Jai Kishan V. Persaud & Anr. Vs. Tara Kumari & Anr.
more so when the defendants have accepted the facts leading to conception and delivery of a child by defendant no.1 as surrogate mother and have also given their no objection to the same.
7. Accordingly, the suit is decreed in terms as prayed for by the plaintiff. No order as to costs.
8. Decree sheet be prepared accordingly. Thereafter, file be consigned to the record room.
Announced in the open (SHREYA ARORA)
Court on 02.02.2013 CIVIL JUDGE1 (SOUTH DISTRICT)
(Judgment contains 5 pages.) SAKET COURTS, NEW DELHI
Suit no. 298/12 Page 5 of 5