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T A B L E O F C O N T E N T
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- a) LIST OF CASES page 1. INDEX OF AUTHORITIES
- b) STATUTARY COMPILATIONS page
- c) WEB RESOURCES page
- ABBREVIATIONS page
- STATEMENT OF JURISDICTION page
- STATEMENT OF FACTS page
- STATEMENT OF ISSUES page
- SUMMARY OF PLEADINGS page
- DETAILED PLEADINGS page 9-
- PRAYER page
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I N D E X O F A U T H O R I T I E S
LIST OF CASES
**1. Soma Chatterjee vs Chapala Chatterjee And Ors. II (1990) DMC 312
- Bhopal Singh v. Chatter Singh AIR 2000 P&H 34
- Indira Bai v. Nand Kishore (1990 (4) SCC 668)
- Ghisalal v. Dhapubai CIVIL APPEAL NOS. 6375 - 6376 OF 2002.
- Provash Chandra Dalui v. Biswanath Banerjee (AIR 1989 SC 1834)
- Inder Singh vs Gurdial Singh 1967 AIR 119, 1962 SCR (1) 845
- Ram Shankar Adopted Son Of Late Sri. vs The General Manager, N.C. Zone**
ORIGINAL APPLICATION NO. 666/ 2010
**8. Daniraiji Vrajlalji vs Vahuji Maharaj Chandraprabha AIR 1971 Guj 188
- Deoki Nandan Ajudhia Parshad And ... vs Rikhi Ram And Ors AIR 1960 P H**
542
10. Nayankumar Rajnikaben Trivedi Vs District Education Officer AIR 2004
Gujarat 53
**11. Soma Chatterjee vs Chapala Chatterjee And Ors. Supra at 1
- Basavarajappa v. Gurubasamma (2005) 12 SCC 290
- Baby M 537 A.2d 1227
- Jaycee B. v. Superior Court Court of Appeals of California, Fourth District,**
Division Three decided on February 6, 1996
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L I S T O F A B B R E V I A T I O N S
- AIR All India Report
- ILR Indian Law Reports
- MANU Manupatra
- SCR Supreme Court Reporter
- SC Supreme Court
- SCC Supreme Court Cases
- SCW Supreme Court Weekly
- DMC Delhi Municipal Corporation
- P&H Punjab and Haryana
- Guj Gujarat
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S T A T E M E N T O F J U R I S D I C T I O N
THE COUNSEL FOR THE RESPONDENT HUMBLY SUBMITS BEFORE THIS
HON’BLE COURT THAT THE APPELLANTS APPROACHED THE HON’BLE COURT
UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1973. THE
RESPONDENT RESPECTFULLY SUBMITS TO THIS JURISDICTION INVOKED BY
THE APPELLANTS.
Section 96. Appeal from original decree:
(1) Save where otherwise expressly provided in the body of this
Code or by any other law for the time being in force, an appeal shall lie from every decree
passed by any Court exercising original jurisdiction the Court authorized to hear appeals from
the decisions of such Court.
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S T A T E M E N T O F I S S U E S
Issue no 1:
Whether the “Adoption” made, is valid under the Hindu Adoptions and Maintenance
Act, 1956?
Issue no 2:
Whether the child born through “Surrogacy Arrangement” will be considered a
“Natural Born-Child”?
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S U M M A R Y O F P L E A D I N G S
1. WHETHER THE “ADOPTION” MADE, IS VALID UNDER THE HINDU
ADOPTIONS AND MAINTENANCE ACT, 1956?
WHAT IS MEANT BY ADOPTION
LEGAL ASPECT OF ADOPTION
1. ALL THE REQUISITES OF A VALID ADOPTION MET
2. HONEY’S CLAIM AS MERELY A GUARDIAN AND NOT AN ADOPTIVE
MOTHER IS ALSO NOT MAINTAINABLE.
3. THE LAW SHOULD BE CHILD ORIENTED AND PROTECT THE RIGHTS
OF THE CHILD.
2. WHETHER THE CHILD BORN THROUGH “SURROGACY
ARRANGEMENT” WILL BE CONSIDERED A “NATURAL BORN-CHILD”?
SURROGACY- ITS DEFINITION
GESTATIONAL SURROGACY
1. ARGUMENTS BASED ON INDIAN CONTRACT ACT, 1872
2. TRAFFIC IN HUMAN BEINGS
3. CUSTODY RELATED ISSUES
4. USE OF REPRODUCTIVE ORGANS OF A WOMAN
5. RELIGIOUS ARGUMENTS
6. HUMAN INCUBATOR ARGUMENT
7. ETHICAL ISSUES RELATED TO SURROGACY
CONCLUSION
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Article 44 of the Constitution of India declares that: The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.
The religion-specific nature of adoption laws was a very retrograde step. It reinforced practices that were unjust to children and hindered the formation of a Uniform Civil Code. Now that there is no uniform law for adoption in India, the legislation related to adoption can be seen as falling into two broad categories:
- Hindu Adoption and Maintenance Act of 1956
- Guardians and Wards Act of 1980
The two laws under which adoption in India functions are not child oriented, even though the focus of all adoption work should really be the child.
From the legal point of view, “adoption is viewed as a transaction whereby the mutual rights and responsibilities related to the child and belonging to the biological parents, are permanently transferred to the adoptive parents.”
Now since the adoption involves a permanent termination of parental rights and links the child permanently to another family, the laws related to adoption are very important.
The child is vulnerable and totally dependent on the adults who are making their life decisions, and hence safeguarding their rights and interests is of prime importance.
1. All the requisites of a Valid Adoption met
Section 6 of Hindu Adoptions and Maintenance Act, 1956 lays down the Requisites of valid adoption, as under:
i. The person adopting has the capacity and also the right to take in adoption.
ii. The person giving in adoption has the capacity to do so
iii. The person adopted is capable of being taken in adoption, and
iv. The adoption is made in compliance with the other conditions as mentioned.
Therefore applying the aforesaid provisions to the factsheet:
Swaroop is a Hindu male, who has the capacity and also the right to take in adoption. He is also of a sound mind, capable and thus he can adopt another Hindu in this capacity. The law is well settled in this regard and thereby requires no clarification in the instant case.
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Further according to Section 7 of Hindu Adoptions and Maintenance Act, 1956 any male Hindu who is of a sound mind and is not a minor has capacity to take a son or a daughter in adoption. This is subjected to a condition that if he has a wife living, he shall adopt with the consent of the wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
Even the consent was given by the appellant. Now the appellant can’t refuse the fact that she consented to the act of adoption. The law of Estoppel will come into picture. Appellant can’t challenge the validity of the adoption.
Law of Estoppel: The registered adoption document, which is made and signed by the person giving and the person taking the child in adoption, is in compliance with the law and is a valid adoption. Even if the facts are silent about the registered adoption document, it can be presumed as all the other requisites are clearly looked upon.
Now Honey, after the death of her husband can’t say she never consented to the adoption. It is clearly mentioned in the point no 2 of the fact sheet. She is now estopped from saying that she didn’t consent for the adoption. Law of estoppel will apply in such a circumstance.
In Soma Chatterjee vs Chapala Chatterjee And Ors.^1 It was held that the subsequent conduct of the wife denying giving consent would be immaterial if really she gave the consent.
In the instant case, Appellant did give her consent for the act of adoption. She can’t wash off her hands from the responsibility of the adopted child mere by saying that consent was not given.
It is settled canon of law that equity follows the law. Equity would tilt in favour of law and not against violation thereof. To claim equity, the petitioner must explain previous conduct; Bhopal Singh v. Chatter Singh^2 ,
In Indira Bai v. Nand Kishore^3 , it was observed as follows:"Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducement from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated. Present case is a glaring example of it. If a man either by words or by conduct has intimated that he consents to an act
1 II (1990) DMC 312 2 AIR 2000 P&H 34
3 (1990 (4) SCC 668)
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In Inder Singh vs Gurdial Singh^6 It was held that “As adoption is not a religious ceremony, no special formalities are considered necessary. The adopter usually calls the neighbours and his relations together, and distributes gur, saying that he has adopted (god lia) so and so. Sometimes a deed of adoption is executed. But a declaration of adoption and general treatment as a son are looked upon as sufficient." It is well-established principle that customary adoption requires absolutely no formalities. The evidence required to establish the factum of adoption is merely evidence.
The allegation so raised in this regard by the Appellant is that since Swaroop married under the Special Marriage Act, 1954 he ceased to be a Hindu and thereby cannot adopt as a Hindu. The particular allegation of the Appellant is frivolous and devoid of any merit as nowhere does the Special Marriage Act, 1954 even hint about what the Appellant is trying to seek from this court. The act does provide the consequences of Marriage under this act that a Hindu male who marries under the Special Marriage Act, 1954 Chapter IV
Section 19 of The Special Marriage Act 1954 : Effect of marriage on member of undivided family- The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.
The counsel submits that Section 19 only talks about the severance of the status from the Hindu Undivided Family and not the severance of the person from the religion that one has.
The allegation of the appellant could only be taken incase Swaroop would have specifically surrendered his religion.
Section 9 of Hindu Adoptions and Maintenance Act, 1956 provides that no person except the father or mother or the guardian of the child shall have the capacity to give the child in adoption can give it in adoption.
According to the point 2 of the factsheet Swaroop’s sister gave the child in adoption. Therefore being a mother she was capable of giving in her child Kranti making the adoption valid. By the virtue of Section 10 of Hindu Adoptions and Maintenance Act, 1956 , no person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:
i. He or she is a Hindu
ii. He or she has not already been adopted;
6 1967 AIR 119, 1962 SCR (1) 845
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iii. He or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption
iv. He or she has not completed the age of fifteen, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption
Hence the adoption of Kranti, who was taken from Swaroop’s sister was before and continues to be a Hindu even after the adoption.
Prior to The Hindu Adoptions and Maintenance Act, 1956 only the adoption of son was recognized but after the commencement of this Act, daughter’s adoption is also legally recognized. This has been considered the major change. Now, more people are coming forward to adopt a girl child. In 2004, more than 40,000 children were adopted worldwide.
The adoption must be real and not symbolic. The child must be actually given and taken in adoption by the respective parties. However, no specific shastric or religious ceremony is necessary for the purpose.
At the time of adoption, the adoptive father or mother by whom the adoption is made must not have a biological or adopted child or grand- child of the same sex(whether by legitimate blood relationship or by adoption) living at the time of adoption. This condition is stipulated under Section 11 of the Hindu Adoptions and Maintenance Act, 1956 is complied with.
Referring to point no. 2 of the factsheet, its clearly stated that Swaroop and Honey didn’thave a child of their own at the time of adoption. Section 14 of the Hindu Adoptions and Maintenance Act, 1956 also provides that where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother. The adoption made by Swaroop is valid and Honey therefore shall be deemed to be the adoptive mother of Kranti.
Section 15 of the Hindu Adoptions and Maintenance Act, 1956 clearly puts forth Adoption once made becomes irrevocable: That a valid adoption can’t be cancelled. No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.
Now even though Swaroop is dead, Honey cannot shun off her responsibility as the adoptive mother of Kranti as well as natural guardian to Kranti, as in the event of death of the father, the natural guardian to a child adopted by a Hindu male is his wife, irrespective of her
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Adoption in India is at present governed by personal laws and therefore only Hindus can adopt under Hindu Adoption and Maintenance Act, 1956. This Act applies to any person who is a Hindu by religion in any of its forms, including Buddhism, Jainism and Sikhism. Swaroop being a Hindu can adopt.
Considering all the above facts and circumstances Swaroop’s marriage under the Special Marriage Act, 1954 has the effect of severance of ties from Joint Hindu family and the religion of the party remains intact. So the adoption is valid and beyond any challenge.
Hindu Adoptions and Maintenance Act, 1956, S.16 - Adoption - Presumption as to valid adoption - Petitioner lawfully adopted by a Hindu lady and deed of adoption registered - Presumption as to valid adoption operates so long as the same is not challenged or such presumption is not rebutted by procedure known to law - Change of name based on deed of adoption notified in Govt. gazette and known to public at large - Held, adoption is valid and petitioner would be justified in getting appropriate correction in school record for change of his name. As observed in Nayankumar Rajnikaben Trivedi Vs District Education Officer^10.
Soma Chatterjee vs Chapala Chatterjee And Ors.^11
Section 16 of the Hindu Adoption and Maintenance Act, 1956 WHICH lays down the rule of presumption which requires that when there is a duly registered deed of adoption the court shall presume that the adoption has been made in compliance of the provisions of the Act unless and until it is disposed. This is no doubt a rebuttable presumption and the onus is upon the person challenging such adoption to rebut it. But on behalf of the defendant it is urged that the defendants have rebutted the presumption laid down in Section 16 by adducing sufficient evidence. It is also urged when in law there was no valid adoption as the alleged adoption was not given by the father of the plaintiff and that wife of the adoptive father did not give her consent to the adoption then the Section of 16 would not be attracted as it is not an adoption in accordance with law.
2. Honey’s claim as merely a Guardian and not an adoptive mother is also not maintainable.
Relation Between Ward & Guardian:
This relation is a very fiduciary relation (trust relationship) (u/s 20 of the Guardians and Wards Act of 1980). A guardian must not make profit out of his office; no property would be sold or purchased between them. Under section 24 of the aforesaid Act the duties of the
10 AIR 2004 Gujarat 53
11 Supra at 1
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guardian is to take care of his (ward) health, education, support and other such matter according to the law to which the ward is subject, requires. Section 27 of the aforesaid Act lays down the duties of a guardian for the property. The guardian is bound to deal with the property carefully as a layman with ordinary prudence would deal with it. He may deal with properties which are reasonable and proper for the realization, protection or benefit of the property.
Limitation of Power of Guardian of Property
A guardian appointed by will or by any other way shall not; mortgage, charge or transfer by sale, gift, exchange any part of the immovable property; lease any part of the property for a term more than 5 yrs or for any term extending more than one year beyond the date on which ward will cease to be a minor, without the previous permission of the court.
Removal of Guardian
Under Section 39 of the act court has the power to remove guardian on an application of any interested person; These are following ground on which guardian can be removed:
- Abuse of trust
- Failure in performing duty
- Ill treatment or negligence in taking care of the ward
- Disregard of statutory provision or orders of the court, etc.
On adoption, adoptee gets transplanted in adopting family with the same rights as that of natural-born son. Adopted child becomes coparcener in Joint Hindu Family property after severing all his ties with natural family; Basavarajappa v. Gurubasamma^12.
3. The law should be child oriented and protect the rights of the child
Last but not the least the two acts relating to adoption in India are insufficient to deal with the interest of the child adopted. The GWA 1890 confers only the status of a ward to the adopted child and not the status of a biologically born child, hence there is no security for either the adopted child or the adoptive parents. Though the law, literally speaking should protect the child’s interest whatsoever. Afterall “Adoption is not about finding children for families, it's about finding families for children.”
12 (2005) 12 SCC 290
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ARGUMENTS:
Child born out of a surrogacy arrangement is not recognized in the eyes of law and its legal position as a legal heir remains questionable.
- ARGUMENTS BASED ON INDIAN CONTRACT ACT, 1872 CONSIDERATION
The very concept that the Appellant indulged into a contract with Ms. Neeta is a proof in itself that she engaged herself in the act of “Commercial Surrogacy”. Since the word “Contract” is enough to prove that there was some “Consideration” involved as defined under the Indian Contracts Act, 1872 which further makes the surrogacy a “Commercial Surrogacy” which is not just legally invalid but also morally wrong.
LAW COMMISSION REPORT To legalize surrogacy, The Law Commission of India has submitted the 228th Report on “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy.” The following observations had been made by the Law Commission: 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 parent(s), etc. However, such an arrangement should not be for commercial purposes.
UNLAWFUL CONSIDERATION
Non-commercial surrogacy agreements, providing only for ‘compensation’ equivalent to reasonable expenses incurred by the surrogate mother, pass the touchstone of public policy considerations under Section 23 the Indian Contract Act, 1872. Section 23 of the Indian Contract Act, 1872 “The consideration or object of an agreement is lawful, unless- it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another or; the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” Illustration (k) A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code. But they are regarded as “Void agreements”. Contract law governing surrogacy
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arrangements does not mean that such contracts are enforceable. It might be declared void because they are against public policy. As sufficient knowledge and consent are essential to contract formation, without them it may be ruled void and unenforceable.
Though the New Jersey court observed in the case of Baby M^13 case that the child’s custody be granted to its commissioning parents However the court came to the conclusion that surrogacy contract is antagonistic to public policy. These standards and safeguards are meant to facilitate the use of this type of reproductive contract in accord with the public policy of the State. Thereby it should not be done. In absence of any law to deal with Surrogacy, these precedents may be of some value to the court.
Advancing the legal dilemmas further the case of Jaycee B. v. Superior Court^14 presented a still complex situation where a child was born to a surrogate mother using sperm and eggs from anonymous donors because the infertile couple was unable to create their own embryo using the in vitro fertilization techniques. Thus the surrogate child had five people who could lay claim to parenthood – a genetic mother, a commissioning mother, a surrogate mother, a genetic father and a commissioning father. The commissioning couple got separated prior to the birth the surrogate child and commissioning father rescinded his obligation under the surrogacy contract in order to avoid maintenance costs to the child. Commissioning mother sought both custody and support from her ex-husband. The court granted temporary custody of the baby and order the commissioning father to pay for child support. The court battle continued for three years wherein the surrogate child did not have a legal parent for this period. The conclusions arrived at the judicial determination of surrogacy contract clearly indicate that these contracts are against public policy.
NO FREE CONSENT
Many commentators suggest that surrogacy contracts are not enforceable because the necessary element of voluntariness is lacking. Thus claiming that no one would choose to be a surrogate were there any remotely attractive alternatives. It is also due to the fact that it is also considered as an employment option. One goes to the extent of trading with their body only after being in deep financial crisis, thereby the consent in not free under Indian Contract Act, 1872 rather under “Undue influence” exercised by the “Intending parents” as they are better-off with funds. Autonomy and liberty obscure the nuances implied by Majboori. Thereby the consent given by Ms. Neeta was not free consent and thus the contract was also void. Thus the child born out of such a contract is automatically not a legal child in the eyes of law.
13 537 A.2d 1227 14 Court of Appeals of California, Fourth District, Division Three decided on February 6, 1996
