Madras High Court
S.Thanga Vijaya vs Nil on 19 January, 2026
Crl.OP(MD)No.21903 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.01.2026
CORAM
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
Crl.O.P.(MD).No.21903 of 2025
1. S.Thanga Vijaya
2. Panneerselvam Pathalamuthu
3. Iswarya Pandiyarajan ... Petitioners
Vs.
Nil ... Respondent
Prayer: Criminal Original Petition is filed under Section 528 of
BNSS, 2023, to call for the records and set aside the order of return
made by the learned Judicial Magistrate No.II, Thoothukudi, in
unnumbered Crl.M.P. E-filing No.ATN20250000497C202500005 of
2025 dated 30.10.2025 and consequently direct the learned Judicial
Magistrate No.II, Thoothukudi, in unnumbered Crl.M.P. E-filing
No.ATN20250000497C202500005 of 2025.
For Petitioner : Mr.G.Aravinthan
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Crl.OP(MD)No.21903 of 2025
ORDER
Preface:
The present Criminal Original Petition raises an important issue touching upon judicial discipline, access to justice, and the limits of scrutiny at the stage of numbering of a petition, especially when the petition concerns sensitive human and familial rights governed by a special statute, namely the Surrogacy (Regulation) Act, 2021.
2. The grievance of the petitioners is not against an adjudicatory order passed after hearing, but against a return endorsement, whereby the learned Judicial Magistrate declined to number the petition itself, by entering into the merits of statutory eligibility.
Case of the petitioners:
3. The petitioners 1 and 2 are a legally wedded couple, married on 23.03.1994. The second petitioner is a former military officer who served the nation, including during the Kargil War. Out of the wedlock, a male child named Mugesh was born on 11.07.2001. 2/10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/02/2026 06:12:53 pm ) Crl.OP(MD)No.21903 of 2025
4. Unfortunately, the said son met with a fatal road accident and succumbed to injuries on 04.09.2023. The loss of the only child left the petitioners emotionally devastated and without any issue to carry forward their lineage. The petitioners thereafter explored natural conception and assisted reproductive technologies, including IVF, by approaching various fertility centres. However, owing to age- related and medical constraints, such efforts proved unsuccessful.
5. Consequently, the petitioners decided to pursue altruistic surrogacy as contemplated under the Surrogacy (Regulation) Act, 2021. They submitted representations dated 28.11.2024 and 05.02.2025 to the competent authorities seeking necessary approvals. As the representations were not acted upon, the first petitioner approached this Court in W.P.(MD) No.3633 of 2025. By order dated 21.02.2025, this Court directed constitution of a Medical Board and examination of the petitioners under Section 4(iii)(b) and
(c) of the Act, with further processing subject to orders of the Hon’ble Supreme Court in W.P.(C) No.756 of 2022 concerning age limits. 3/10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/02/2026 06:12:53 pm ) Crl.OP(MD)No.21903 of 2025
6. Pursuant thereto, a Medical Board examined the petitioners on 26.02.2025 and found them medically fit. Eligibility Certificates were issued by the Directorate of Medical and Rural Health Services. Thereafter, the petitioners filed a petition under Section 4(iii)(A)(ii) and Section 4(iii)(A)(iii) of the Surrogacy (Regulation) Act, 2021, before the learned Judicial Magistrate No.II, Thoothukudi, seeking:
(i)Declaration of parentage and custody of the child to be born through surrogacy, and (ii) Acceptance of affidavits relating to insurance coverage of the surrogate mother.
7. However, by a return endorsement dated 06.11.2025, the learned Judicial Magistrate declined to number the petition, stating that the petitioners did not satisfy the age criteria under Section 4(i)
(j) of the Act. Challenging the said return endorsement, the present Criminal Original Petition has been filed.
Grounds for set-aside:
8. The petitioners contend that: (i) The impugned return is illegal, arbitrary, and without jurisdiction. (ii)The learned Magistrate has exceeded the permissible scope of scrutiny at the stage of 4/10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/02/2026 06:12:53 pm ) Crl.OP(MD)No.21903 of 2025 numbering. (iii)The return endorsement is non-speaking and mechanical. (iv)Determination of statutory eligibility involves adjudication, which can be undertaken only after numbering and hearing. (v)The action infringes the petitioners’ right of access to justice. (vi)The learned Magistrate ignored the fact that medical fitness had already been assessed by a duly constituted Medical Board pursuant to orders of this Court.
Submissions:
9. The learned counsel for the petitioners submitted that the learned Magistrate has usurped the role of an adjudicating authority at the threshold, by rejecting the petition even before numbering. It was contended that returning a petition on merits is impermissible, especially when the statute itself requires judicial determination after hearing the parties. It was further argued that even assuming age eligibility is in question, the same is sub judice before the Hon’ble Supreme Court, and therefore the learned Magistrate could not have foreclosed the petition at the inception.
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10. There is no contesting respondent. However, the record reveals that the return was made solely on the ground of statutory age criteria.
11. Heard the learned counsel for the petitioners and carefully perused the materials available on record.
Point for consideration:
12. The point that arises for consideration is whether the learned Judicial Magistrate was justified in refusing to number the petition by entering into the merits of statutory eligibility under the Surrogacy (Regulation) Act, 2021, at the stage of return?
Analysis:
13. It is well settled that scrutiny at the stage of numbering is confined to procedural compliance such as jurisdiction, valuation, limitation, court fee, and maintainability in form. Adjudication on merits, interpretation of statutory provisions, or evaluation of eligibility conditions falls squarely within the domain of judicial determination after numbering, issuance of notice, and hearing. 6/10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/02/2026 06:12:53 pm ) Crl.OP(MD)No.21903 of 2025
14. A return endorsement cannot partake the character of a final adjudicatory order. When a petition is returned on merits, it effectively denies the litigant an opportunity of being heard, which strikes at the very root of natural justice.
15. In the present case, the learned Magistrate rejected the petition solely on the basis of age criteria under Section 4 of the Surrogacy Act. Such determination involves:(i)Interpretation of statutory provisions, (ii) Consideration of medical and factual materials, (iii)Awareness of pending constitutional challenges before the Hon’ble Supreme Court. These aspects cannot be summarily concluded at the threshold without numbering the petition and hearing the petitioners.
16. This Court also notes that the petitioners were examined by a Medical Board pursuant to orders of this Court in an earlier writ petition. Whether such examination confers any entitlement is a matter to be adjudicated, not pre-empted.
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17. Therefore, this Court is of the considered view that the learned Judicial Magistrate acted beyond jurisdiction in refusing to number the petition. It is clarified that this Court has not expressed any opinion on the merits of the claim under the Surrogacy Act, and all issues are left open to be decided by the learned Magistrate in accordance with law.
18. The impugned return endorsement suffers from jurisdictional error and procedural impropriety, warranting interference by this Court. Access to justice is not merely a constitutional promise but a practical entitlement. Courts must be cautious not to convert procedural scrutiny into substantive adjudication, especially at the threshold, thereby foreclosing remedies without hearing. Judicial restraint at the stage of numbering preserves both fairness and institutional discipline.
19. In the result, the Criminal Original Petition is allowed. The return endorsement dated 06.11.2025 made by the learned Judicial Magistrate No.II, Thoothukudi, in unnumbered Crl.M.P. E-filing No.ATN20250000497C202500005 of 2025 is set aside. 8/10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/02/2026 06:12:53 pm ) Crl.OP(MD)No.21903 of 2025
20. The learned Judicial Magistrate No.II, Thoothukudi, is directed to number the petition, if otherwise in order, and proceed further in accordance with law, uninfluenced by any observations made herein. All issues on merits are left open.
19.01.2026
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Sml
To
1.The Judicial Magistrate No.II,
Thoothukudi.
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.OP(MD)No.21903 of 2025
L.VICTORIA GOWRI, J.
Sml
CRL OP(MD)No.21903 of 2025
19.01.2026
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