H ' S C I: THE ON BLE Upreme Ourt of Ndica

2ND AMITY MOOT COURT COMPETITION, HARYANA, 2017
Team Code-M122
P
Before
THE HON’BLE SUPREME COURT OF INDICA

AT-NEW DELHI
CIVIL APPELLATE JURISDICTION
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDICA)
SPECIAL LEAVE PETITION (CIVIL NO.__ OF 2017 )
ABBEY PETITIONER (1)
ALL INDICA MUSLIM PERSONAL LAW BOARD PETITIONER (2)
VERSUS
UNION OF INDICA RESPONDENT
COUNSEL APPEARING ON THE BEHALF OF PETITIONERS
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

TABLE OF CONTENTS
LIST OF ABBREVIATIONS………………………………………………………………………….3-4
INDEX OF AUTHORITY…………………………………………………………………………….5-15
 BOOK REFERRED……………………………………………………………………………………..5-6
 STATUTE CITED…………………………………………………………………………………………7
 WEBSITE REFERRED…………………………………………………………………………………….7
 ARTICLES & RESEARCH PAPER…..………………………………………………………….8-9
CASES CITED…………………………………………………………………………………….10-15
STATEMENT OF JURISDICTION………………………………………………………………………16
STATEMENT OF FACTS…………………………………………………………………………..17-18
ISSUES RAISED……………………………...……………………………………………...………19
SUMMARY OF ARGUMENTS……………...……………………………………………………...20-21
ARGUMENTS ADVANCED.…………………..………………………………..………………….22-41
1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE 136 OF THE
CONSTITUTION OF INDICA?
 THE MATTER INVOLVES QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE AND HENCE,
ENTITLED TO BE MAINTAINABLE.
 THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND HENCE ENTITLED TO BE
MAINTAINABLE
2. WHETHER THE DIRECTION REGARDING IMPLEMENTATION & FORMATION OF UNIFORM CIVIL

CODE IS TO BE SET ASIDE?
 UNIFORM CIVIL CODE CANNOT BE ENFORCED IN INDICA

3.1.1 HIGH COURT HAD NO JUDICIAL POWER TO DIRECT THE PARLIAMENT TO ENACT SUCH LAW.
3.1.2IT VIOLATES ART. 25&26 OF INDICAN CONSTITUTION
3.1.3 DRAWBACKS OF UNIFORM CIVIL CODE
 NAZIA YUSUF IS NOT ENTITLED FOR MAINTENANCE U/S 125 OF CR.P.C.
3. RAHIM KHAN (RANVIJAY KAPOOR) CANNOT BE PROSECUTED FOR BIGAMY U/S 494 OF IPC.
WHETHER THE CONTRACT OF SURROGACY BETWEEN PETITIONER(1) AND MS. RADHIKA IS
VALID UNDER PRESENT CIRCUMSTANCES?
 SECTION 377 OF I.P.C.IS UNCONSTITUTIONAL IN NATURE

2.1.1-SECTION 377 OF I.P.C. FALL UNDER JUDICIAL POWER OF THIS HON’BLE COURT
Memorial on the behalf of Petitioners Page 1

2.1.2-IT CREATES DISCRIMINATION ON THE BASIS OF SEX WHICH IS UNCONSTITUTIONAL (ART.15)
2.1.3-IT VIOLATES RIGHT TO PRIVACY UNDER ARTICLE 21 OF INDICAN CONSTITUTION
2.1.4-IT VIOLATES ARTICLE 14 OF INDIAN CONSTITUTION
 THE SURROGACY CONTRACT WAS VALID IN NATURE.
2.2.1-COMMERCIAL SURROGACY IS VALID IN INDICA.
2.2.2-HOMOSEXUAL CAN BE A LEGAL GUARDIAN OF CHILD IN INDICA.
 SURROGACY ACT 2016 IS THE VIOLATION OF ARTICLE 21 OF INDICAN CONSTITUTION.
 MS. RADHIKA HAS NO CLAIM ON THE CHILD DUE TO HER STATUS OF A GENETIC MOTHER &
SHE IS NOT A LEGAL GUARDIAN.
PRAYER……………………………………………………………………………………………..42

LIST OF ABBREVIATIONS
&……………………………………………..…………………………………..…….………...AND
A.I.D.S……………………………………………..……ACQUIRED IMMUNO DEFICIENCY SYNDROME
A.P………………………………………………………………………………...ANDHRA PRADESH
AIR………………………………….………………………………....................ALL INDIA REPORT
ALL……………………………………………………………………………………..ALLAHABAD
ANR/OTHRS.………………………………………………………………………………….OTHERS
ART……………………………………………………………………………...………...…ARTICLE
BOM…………………………………………………………………………………………BOMBAY
BOMLR……………………………………………………………………….BOMBAY LAW REPORT
C.T.C………………………………………………………………….CURRENT TAMIL NADU CASES
CR.P.C…………………………………………………………………..CRIMINAL PROCEDURE CODE
CRLJ………………………………………………………………………..CRIMINAL LAW JOURNAL
DEL……………………………………………………………………………………………..DELHI
ED./EDN……………………………………………………………………………………...EDITION
EST.………..…………………………………………………………..…………….….ESTABLISHED
F.R’S……………………………………………………...……………..…...FUNDAMENTAL RIGHTS
GOVT.………………………………………………...………………………..……....GOVERNMENT
H.C………………………………………………………………………………………HIGH COURT
H.I.V…………………………………………………………………HUMAN IMMUNODEFICIENCY VIRUS
HON’BLE…………………………………………………………..…………………..…HONORABLE
I.L.R…………………………………………………………………………...INDIAN LAW REPORTS
I.P.C…………………………………………………………………………….INDIAN PENAL CODE
INT…………………………………………………………………..……………….INTERNATIONAL
KER…………………………………………………………………………………………..KERALA
M.L.J. ……………………………………………………………………….MADRAS LAW JOURNAL
M.P……………………………………………………………………………….MADHYA PRADESH
M.P……………………………………………………………………………….MADHYA PRADESH
MAD…………………………………………………………………………………..……..MADRAS

MAH………………………………………………………………………………….MAHARASHTRA
NUM…………………………………………………………………………………………NUMBER
PG……………………………………………………………….……………….…….PAGE NUMBER
PG………………………………………………………………………………………...……..PAGE
S.C.R……………………………………………………………..……….SUPREME COURT REPORTS
SC…...……………………………………………………………………….….….SUPREME COURT
SCC………………………………….………………………………………SUPREME COURT CASES
SCH………………………………………………………………………………...………SCHEDULE
SEC…………………………………………………………………………………………..SECTION
U.N..…………..………………………………………………….…...…………....UNITED NATIONS
U.O.I…………………………………………………………………………………UNION OF INDIA
U.S…………………………………………………………………………………...UNITED STATES
V…………………………………………………………………...…………………………VERSUS
VOL…………………………………………………………………..…………………...…VOLUME
J………………………………………………………………………………………………JUSTICE
L.G.B.T…………………………………………...…..LESBIAN, GAY, BISEXUAL, AND TRANSGENDER
PARA……………………………………………………………………………………..PARAGRAPH
W.L.R………………………………………….……………………………..WEEKLY LAW REPORT

INDEX OF AUTHORITIES
 BOOKS REFEREED
 TREITEL, G. LAW OF CONTRACT, SWEET AND MAXWELL (8TH EDITION, INDIA,2006)
 AIYAR P. RAMANATHA, ADVANCED LAW LEXICON, (3RD EDITION, 2005)
 BASU D.D, COMMENTARY ON THE CONSTITUTION OF INDIA, (8TH EDITION 2007)
 BRYAN A. GARNER, BLACK LAW DICTIONARY (19TH EDITION, WEST)
 DHIRAJLAL & RATANLAL, THE CODE OF CRIMINAL PROCEDURE, (21ST EDITION, LEXIS NEXIS,
2014)
 DR. SAIF MAHMOOD & DR. TAHIR MAHMOOD, INTRODUCTION TO MUSLIM LAW (UNIVERSAL
LAW PUBLICATION, NEW DELHI,2013 )
 DR.PARAS DIWAN, LAW OF MARRIAGE AND DIVORCE, UNIVERSAL LAW PUBLISHING CO. (5TH
EDITION, 2008)
 GARNER, A., BRAYAN, BLACK’S LAW DICTIONARY, THOMSON REUTERS, (9TH EDN.)
 GAUR K.D., TEXTBOOK ON INDIAN PENAL CODE ( FIFTH EDITION 2016)
 GAUR, K.D. COMMENTARY OF THE INDIAN PENAL CODE, (SECOND EDITION, UNIVERSAL
LAW PUBLICATION, 2013)
 JAIN M P, INDIAN CONSTITUTION LAW, (7TH EDITION,2014)
 JUSTICE KHASTGIR, CRIMINAL MANUAL (CRIMINAL MAJOR ACTS), (KAMAL LAW HOUSE,
KOLKATA)
 KELKAR’S, R. V., CRIMINAL PROCEDURE, (6TH EDITION, EASTERN BOOK COMPANY)

 KUMAR NARENDRA, CONSTITUTIONAL LAW OF INDIA, (EIGHTH EDITION, 2014)
 MULLA & POLLOCK , ‘INDIAN CONTRACT & SPECIFIC RELIEF ACTS’, , LEXIS NEXIS
BUTTERWORTHS WADHWA, NAGPUR, (14TH EDITION ,2013)
 MULLA, PRINCIPLES OF MOHOMEDAN LAW, (20TH EDITION, LEXIS NEXIS BUTTERWORTHS
WADHWA, NAGPUR,2013)
 PANDEY J.N., CONSTITUTIONAL LAW OF INDIA, (51ST EDITION 2014)
 R.A NELSON, INDIAN PENAL CODE, (19TH EDITION, LEXIS NEXIS)
 RASHID’S SYED KHALID, MUSLIM LAW,(FIFTH EDITION, EASTERN BOOK COMPANY,2010)
 RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, (34TH EDITION,2014, LEXIS NEXIS)
 SARKAR S.C., THE LAW OF CRIMINAL PROCEDURE, (SIXTH EDITION, ORIENT LAW HOUSE,
1992)
 SEN RONOJOY, ARTICLES OF FAITH (RELIGION, SECULARISM, AND THE SUPREME COURT OF
INDIA), PUBLISHED BY OXFORD INDIA PAPERBACKS (2012)

 SINGH AVTAR, CONTRACT AND SPECIFIC RELIEF, (ELEVENTH EDITION, EASTERN BOOK
COMPANY,2013)
 TAKWANI, CRIMINAL PROCEDURE, (3RD EDITION, LEXIS NEXIS BUTTERWORTHS WADHWA,
NAGPUR 2011)
 TOPE’S T.K., CONSTITUTIONAL LAW OF INDIA, (THIRD EDITION, EASTERN BOOK
COMPANY,2010)
 V.N. SHUKLA'S CONSTITUTION OF INDIA (12TH EDITION, REPRINTED, 2016)
 VOL. 2,DATAR ARVIND, COMMENTARY ON THE CONSTITUTION OF INDIA, (2ND EDITION)
 VOLUME 1. JAGDISH SWARUP, CONSTITUTION OF INDIA, THOMSON REUTERS, NEW DELHI,

THIRD EDITION (2013)
 VOLUME 2,S C SARKAR, THE CODE OF CRIMINAL PROCEDURE, (10TH EDITION, LEXIS NEXIS)

 VOLUME 2,SEERVAI H.M., CONSTITUTIONAL LAW OF INDIA, (4TH EDITION, 2010)
 VOLUME I, SARKAR, THE CODE OF CRIMINAL PROCEDURE,(TENTH EDITION, LEXIS

NEXIS,2014)
 P. Koteswara Rao “Shah Bano’s Case and Uniform Civil Code”, The Jornal of Indian Law
Institute, Vol. 27, p. 572, (1985);
 Virendra Kumar,“Towards a Uniform Civil Code Judicial Vicissitudes (From Sarla
Mudgal(1995) to Lily Thomas (2000)” Vol. 42 pg. 314,(2000).
 STATUTES CITED
 INDICAN PENAL CODE, 1860.
 CRIMINAL PROCEDORE CODE, 1973.
 INDICAN CONTRACT ACT, 1872.
 CONSTITUTION OF INDICA, 1950.
 THE MUSLIM WOMEN (PROTECTION OF RIGHTS

ON DIVORCE) ACT, 1986.
 WEBSITE REFERRED
 www.manupatrafast.com
 www.westlawindia.com
 www.Lexisnexis.in.com
 www.scconline.com
 http://www.jstor.org
 https://indiankanoon.org
 https://Supremecourtcases.com

 ARTICLES & RESEARCH PAPERS
1) Aditi tondon , “gay couple realises parenthood dream in india” the tribune, february
17, 2011.
2) Amit Kumar Kashyap, Decoding Uniform Civil Code: Scope and Practicability,
available at http://papers.ssrn.com/sol3/papers.cfm?Abstract_id=1520935
3) Anita Stuhmcke, “For Love or Money: The Legal Regulation of Surrogate
Motherhood” Surrogate Motherhood: Law and Legislation (1995).
4) Bryan A. Garner, Black law Dictionary (19th edition, west).
5) Circular No.: 5/10/8/2008-RHN, Indian Council of Medical Research, dated:
27/10/2015.
6) Constituent Assembly Debates, Vol. VII, p. 544.
7) Dr. Nandita Adhikari, Law and Medicine, Central Law Publications, Allahabad
(2012).
8) Extracted from Law Commission of India, Report No. 228, “Need for Legislation to
Regulate Assisted Reproductive Technology Clinics as well as Rights and
Obligations of Parties to a Surrogacy” (August, 2009).
9) Garner B.A., Black’s Law Dictionary, (9th ed., 2009); 228th Law Commission
Report, Baby Manji Yamada v. Union of India, AIR 2009 SC 84.
10) Garner, A., Brayan, Black’s Law Dictionary, Thomson Reuters, (9th Edn.)
11) India’s first fertility law firm, Chennai.
12) Indian Council of Medical Research, 1949.
13) India's first assisted reproductive technology law firm.
14) Irvi h. Thakkar, “is surrogate motherhood moral?” Cri lj 88 (2011).
15) Law commission of india, report no.228, need for legislation to regulate assisted
reproductive technology clinics as well as rights and obligations of parties to a
surrogacy, august 2009
16) Mohd. Shabbir, Muslim Personal Law and Judiciary, p. 271 (1988).

17) N.B. Sarojini and Aastha Sharma, “Guidelines Not Enough, Enact Surrogacy Laws”,
Hindustan Times, August 8, 2008.
18) National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in
India, Guidelines No. 3.5.4. (Issued by ICMR).
19) Rao “Shah Bano’s Case and Uniform Civil Code”, The Jornal of Indian Law
Institute, Vol. 27, p. 572, (1985);
20) Report of the National Conference on Human Rights and HIV/AIDS, held on 24-25
November, 2000 in New Delhi and organised by the National Human Rights
Commission. Http://nhrc.nic.in/Publications/report_hiv- aids.htm
21) Smita Chandra, Surrogacy & India, (Jan. 18, 2013),
http://ssrn.com/abstract=1762401.
22) Sugato Mukherjee, “Legal and Ethical Issues of Commercial Surrogacy in India: an
Overview” Available at: http://www.academia.edu/1955503
23) Tahir Mehmood, Uniform Civil Code : Fictions and Facts, p. 129(1995).
24) The National Guidelines for Accreditation, Supervision and Regulation of ART
Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the
National Academy of Medical Sciences (NAMS)
25) Virendra Kumar,“Towards a Uniform Civil Code Judicial Vicissitudes (From Sarla
Mudgal(1995) to Lily Thomas (2000)” Vol. 42 pg. 314,(2000).
26) Werner Menski,The Uniform Civil Code Debate in Indian Law ,German Law Journal
Vol9 Issue 3, 214 (2008).

CASES CITED
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2. Abdul Gafoor Kunju v. Patumma Beevi (1989 (1) KLT 337)
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28. Dale & Carrington Invt. Ltd. v. P.K. Prathapan (2005) 1 SCC 212(SC)
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34. DS Nakara v. UoI (1983) 1 SCC 305
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37. Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211(SC).
38. Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, AIR 1961 SC 564
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55. Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935

56. Jowala Buksh v. Dharun Singh, (1866) 10 M.I.A 511
57. K. A. Abbas v. Union of India, AIR 1971 SC 481.
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62. Kharak Singh v. State of U.P. AIR 1963 SC 1295
63. Krishna Singh v. Mathura Ahir, AIR 1980 SC 707
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68. M. Nagaraj v. Union of India, AIR 2007 SC 1
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70. M/s. Kasturu Lal Lakshmi Reddy and Ors. v. State of Jammu and Kashmir and Anr.
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76. Mohamed Haneefa v. Mariam Bi (1989 (1) KLT 337)
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111. Rama Pandey v. Union of India and others, 2015 Indlaw DEL 3091 2015 (221) DLT
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112. Ramaswami Mudaliar v. Commr., H.R.E., AIR 1999 Mad 393
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116. Rose v. Frank Co. v. J.R. Crompton & Bros Ltd. (1923) 2 KB 261 (CA)
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121. Sanghar Umar Ranmal v. State, AIR 1952 Sau 124.
122. Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715 (722).
123. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853
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126. Sharda v. Dharampal (2003) 4 SCC 493.
127. Shihabuddin Imbichi Koya Thangal v. Ahammed Koya, (’71) A.K. 206
128. Shoharat Singh v. Jafri Begum (1915) 17 BOMLR 13
129. Shreya Singhal v. Union of India, (2015) 5 SCC 1:AIR 2015 SC 1523.
130. Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd.
(1962) AIR 1314(SC).
131. Smt. Selvi v. State of Karnataka (2010) 7 SCC 263).
132. Smt. Ujjam Bai v. State of U.P., 1962 AIR 1621, 1963 SCR (1) 778.
133. SP Mittal v. Union of India, AIR 1983 SC 1.
134. Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of Uttar Pradesh, (1997)
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135. Sripur Paper Mills v. Commr. of Wealth Tax (1970) AIR1520 (SC)
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137. State of Bombay v. Narasuappa Mali AIR 1952 Bom 84.
138. State of Madras v. Srimathi Champakam AIR 1951 SC 228
139. State of Madras v. V.G. Row AIR 1952 SC 196

140. State of Punjab v. Dalbir Singh, AIR 2012 SC 1040 (1047)
141. State of Rajasthan v. Union of India AIR 1977 SC 1361
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143. Suchita Srivastava v. Chandigarh Administration
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145. Suresh Kumar Kaushal v. Naz Foundation and Ors MANU/SC/1278/2013: (2014) 1
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146. Tractor Export v. Tarapore & Co., (1969) 3 SCC 562
147. Unni Krishnan v. State of A.P., AIR 1993 SC 2178
148. Usma Khan Bahmani v. Fathimunnissa Begum, AIR 1990 AP 225, 1990 CriLJ 1364
149. Vellore Citizens Welfare Forum v. UoI (1996) 5 SCC 647
150. Vijay Prakash v. Union of India and Ors., AIR 2010 Del. 7
151. Vincent Parikurlangara v. Union of India, (1987) 2 SCC 165
152. Vishaka & Ors. v. State of Rajasthn & Ors (1997) 6 SCC 241
153. Yusuf v. Sowramma AIR(1971) Ker. 261

STATEMENT OF JURISDICTION
The Petitioners have approached the Hon’ble Supreme Court of Indica under Article 136 1 of the
Constitution of Indica, 1950.
1
Special leave to appeal by the Supreme Court,
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from
any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the
territory of India.
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or
tribunal constituted by or under any law relating to the Armed Forces.
STATEMENT OF FACTS
BACKGROUND OF COUNTRY-
 The Democratic Republic of Indica is a secular country located in Sub Continent of South
Central Asia. Indica is a religious diverse country; around 70% of Indicans are Hindus, 20%
Muslims while 5% follow Christianity and remaining 5%. Indica is a secular country which
doesn’t worship any religion. It provides Fundamental rights to its every citizen to express their
religious beliefs.
MATTER (1) A
 Aslam Khan, a lawyer was married to Nazia Yusuf, an illiterate woman, in October 1987. Nazia
gave birth to two children. After 16 years of marriage, Aslam Khan got married to a younger
girl, named Noor Rizvi, in January 2003. After 10 years of living together with both wives’, in
2013 Aslam drove Nazia out of the matrimonial house without any reason. At that time, she was
41-year-old and did not have any source of income.
 Till January 2016, Aslam Khan had apparently promised to give her Rs. 4000 per month. After
that, in April 2016, Nazia filed a petition against Aslam under section 125 of CrPC in the Court
of Chief Judicial Magistrate, Kasol asking for maintenance @ Rs. 8000 per month in lieu of the
professional income of Aslam which was Rs. 60,000 per month, claiming that she had no means
to support herself and her children.
 In December 2016, Aslam divorced Nazia by an irrevocable talaq, In January 2017, Chief
Judicial Magistrate directed Aslam to pay Rs. 6000 per month by way of maintenance.
MATTER (1) B
 A woman named Sunita Mehra was legally wedded to Ranvijay Kapoor in 2009, a daughter was
born out of this wedlock. In 2014, Sunita Mehra came to know that her husband had solemnized
second marriage with Nureen Saeed by conversion of his religion from Hindu to Muslim and
changing his name from Ranvijay Kapoor to Rahim Khan. According to Sunita Mehra,
conversion of her husband to Islam was only for the purpose of marrying Nureen Saeed and
circumventing the provision of section 494 of Indian Penal Code.
 The NGO “JAN KALYAN” filed Appeal before the High Court of Janakpur on the behalf of Sunita
mehra & Nazia yusuf. Mean while Another matter came before High Court.
MATTER-2

 Abbey and Aldo, both of them Christians by religion, was a homosexual couples in the State of
Janakpur. They had been in live-in relationship since 2005. In the year 2013, they identified an
Agency, based in New Delhi, which offered surrogacy to homosexual couples for high fees.
They signed an agreement with this Agency for conducting surrogacy, which would be
traditional surrogacy; both the parties agreed and signed the document for a sum of Rs. 10 lakhs
on 10 January 2016.
 In February 2016, a traditional surrogacy was carried out on the woman named Radhika Ghosh,
an illiterate woman with a poor family background, who was compelled into this commercial
surrogacy by her family. On 20th November, 2016 a healthy baby boy was born to the surrogate
mother. An Appreciation Reward of about Rs.1,50, 000 was also given to Radhika Ghosh for
giving birth to a baby boy.
 In the meantime, Radhika Ghosh refused to give custody of the child as she had become
emotionally attached to the child and she also claimed that she should decide whether she
wanted to give the baby or not as that was what the surrogacy agency had told her at the time
she decided to carry the child. Similarly, many incidents of women being forced into such
commercial surrogacy also surfaced.
 After about one month, in December, 2016 The Surrogacy Act, 2016 was passed by Parliament
seeking a ban on homosexuals and live-in couples from opting for surrogacy. The Act also
banned commercial surrogacy.
HIGH COURT OF JANAKPUR, HEARD BOTH MATTERS TOGETHER AND HELD THAT.
1. Homosexuality is an offence u/s 377 of IPC. Surrogacy done by homosexuals does not have any
right over the child born and commercial surrogacy should not be allowed.
2. Directed the Parliament that Uniform Civil Code needs to be drafted and implemented. Also
notwithstanding the separate Muslim Personal Law system, Nazia Yusuf is entitled to
maintenance u/s 125 of CrPC.
3. Rahim Khan (Ranvijay Kapoor) having been previously married under Hindu Law and his
second marriage with Nureen Saeed by embracing Islam was void.
 Aggrieved by the Judgment of High Court Abbey and AIMPLB (All Indica Muslim Personal
Law Board) also filed a Special Leave to Appeal petition representing the whole Muslim
community. Therefore the Special leave petition.

ISSUES RAISED
[ISSUE I] WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE 136 OF THE
CONSTITUTION OF INDICA?
MAINTAINABLE
[ISSUE II]WHETHER THE DIRECTION REGARDING IMPLEMENTATION & FORMATION OF UNIFORM

CIVIL CODE IS TO BE SET ASIDE?

2.1.2IT VIOLATES ART. 25&26 OF INDICAN CONSTITUTION
 MAINTENANCE U/S 125 OF CR.P.C. IS NOT MAINTAINABLE
 RAHIM KHAN (RANVIJAY KAPOOR) CANNOT BE PROSECUTED FOR BIGAMY U/S 494 OF IPC.
[ISSUE III] WHETHER THE CONTRACT OF SURROGACY BETWEEN PETITIONER(1) AND MS. RADHIKA
IS VALID UNDER PRESENT CIRCUMSTANCES?
 SECTION 377 OF I.P.C.IS UNCONSTITUTIONAL IN NATURE

3.1.1-SECTION 377 OF I.P.C. FALL UNDER J UDICIAL POWER OF THIS HON’BLE COURT
3.1.2-IT CREATES DISCRIMINATION ON THE BASIS OF SEX WHICH IS UNCONSTITUTIONAL (ART.15)
3.1.4-IT VIOLATES ARTICLE 14 OF INDIAN CONSTITUTION
3.2.1-COMMERCIAL SURROGACY IS VALID IN INDICA.
3.2.2-HOMOSEXUAL CAN BE A LEGAL GUARDIAN OF CHILD IN INDICA.
 MS. RADHIKA HAS NO CLAIM ON THE CHILD DUE TO HER STATUS OF A GENETIC MOTHER &
SHE IS NOT A LEGAL GUARDIAN.

SUMMARY OF ARGUMENTS
[ISSUE I] WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE

136 OF THE CONSTITUTION OF INDICA?
The essentials which should be satisfied in order to get an appeal entertained under article 136 of
Indican constitution is there must be substantial question of law , the matter in dispute is related to
public interest and there is also great miscarriage of justice Constitutional validity of sec 377 of
indicant penal code in its implementation infringes article 14, 19 and article 21 of indican constitution
and will and threat to their dignity as well and same effects have been shown by surrogacy act in
terms of infringement of fundamental rights of homosexuals and implementation of universal civil
code will itself infringe article 25 and article 26 of indican constitution and there is also excess of
jurisdiction of high court because court cannot direct parliament to direct parliament to make laws and
regarding claim under Sec 125 CrPC Nazia Yusuf is not entitled to get compensation under Sec. 125
Cr.P.C. and hence entitled to get compensation under muslim personal law , so the the judgment
given by highcourt involves substantial question of law in each phase of judgment and great public
importance as 20% muslim people of Indica and gay or lesbian will suffer as the judgment of HC is
harming there F.R The SC cannot abandon its duty to prevent violent miscarriage of justice by
hesitating to interfere where interference is imperative. SLP should be granted in cases where
substantial and grave injustice has been done and that the case in question presents features of
sufficient gravity to warrant review of the decision appealed against.2 Article 13 makes Judiciary, as
the guardian, protector and the interpreter of the Fundamental Rights3 there was violation of F.R.s of
20% Muslims and Gay/Lesbian couples in Indican Country, therefore the Present petition is
maintainable. and if the judgment is came in to execution there will be great miscarriage of justice as
there rights are clearly being violated .
2
Pritam Singh v. The State, A.I.R. 1950 S.C. 169.
3
State of Madras v. V.G. Row, AIR 1952 SC 196: 1952 SCR 597.
[ISSUE II]WHETHER THE DIRECTION REGARDING IMPLEMENTATION & FORMATION OF
UNIFORM CIVIL CODE IS TO BE SET ASIDE?
It is humbly submitted before this court that the directions regarding the Uniform Civil code is needed
to be set aside as they are not compatible with the circumstances of the Indican Society. In present
matter also, Aslam Khan had agreed to provide ₹4000 per month and Nazia Yusuf consented to this.
However three months after having been taking the money, she filed the petition before magistrate for
₹8000 per month. By doing so, she has violated the terms of the contract, and she is not entitled for the
increase in the sum of money. Rahim Khan (Ranvijay Kapoor) had the fundamental right to choose to
practice Islam religion. After being converted to Islam, the Mohammedan law would be applicable on
him, which allows polygamy. Thus, when he went for another marriage, he committed no offence, as
his religion allowed it. Moreover, marriage being a sacramental and religious practice, Rahim Khan has
a fundamental right to do the same, and it cannot be denied to him.
[ISSUE III] WHETHER THE CONTRACT OF SURROGACY BETWEEN PETITIONER(1) AND

MS. RADHIKA IS VALID UNDER PRESENT CIRCUMSTANCES?
The implementation of section 377 of indican penal code in context of unnatural offence is clearly
violation of article 14 ,article 15 and most important article 21 which includes right to privacy in its
ambit and most important an act done with the consent is considered as an offence which clearly
culminates the concept of Mens Rea , and most important that if the legislation in question violated a
fundamental right, it would have to be struck down "in discharge of a duty plainly laid upon the courts
by the Constitution . Section 377 of IPC is inconsistence with the Fundamental Rights it must be held
void up to extent of consensual sex. Hon’ble Supreme Court has made it clear that a homosexual can
be a legal guardian of the minor child Law Commission in its 228th report also affirmed that a
homosexual can be considered to be the guardian in cases of surrogacy arrangement if he is biological
father of the child. In India, The right to have reproductive choices has been declared as a part of
Article 21 of the Constitution and surrogacy act ,2016 in its implementation violates article 21 and
hence the present judgment of high court regarding sec 377 of Indican penal code that the provision is
unconstitutional is justified because the judgment clearly protects the fundamental rights of
homosexuals and their dignity.

ARGUMENTS ADVANCED
[ISSUE I] WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE

136 OF THE CONSTITUTION OF INDICA?
1. It is humbly submitted before the Hon’ble Court, that the Special leave petition filed by the Petitioners
against the judgment of Hon’ble High court of Janakpur [hereinafter as HC] is maintainable under
Article 136 of the Constitution of Indica. It is contended that the jurisdiction of Supreme Court
[hereinafter as SC] under Art. 136 can always be invoked when a question of law of general public
importance arises Moreover, there is substantial question of law involved and there has been great
miscarriage of justice by the impugned act. Lastly, there was no alternate remedy available for the
petitioners.
2. The jurisdiction conferred under Art. 136 on the SC are corrective one and not a restrictive one. 4 A duty
is enjoined upon the SC to exercise its power by setting aside the illegality in the judgments is well-
settled that illegality must not be allowed to be perpetrated and failure by the SC to interfere with the
same would amount to allowing the illegality to be perpetuated.5. Article 136 is the residuary power of
SC to do justice where the court is satisfied that there is injustice. 6 In the present matter High Court
directed the Parliament to enact Uniform Civil Code which does not fall under the power of HC further
the Surrogacy Contract between Petitioner (1) and Ms. Radhika was valid but it was declared invalid by
HC, therefore the Judgment was illegal in nature and there was injustice for Petitioners. It is an
overriding power where the court to impart justice and redress injustice, may generously step in.7The
principle is that this court would never do injustice nor allow injustice being perpetrated for the sake of
upholding technicalities. 8 The violation of Fundamental Rights of Petitioners was an injustice with
them.
3. In any case, special leave would be granted from a second Petitioner decision only where the judgment
raises issues of law of general public importance. 9 The direction to enact Uniform Civil Code and
4
Haryana State Industrial Corpn. v. Cork Mfg. Co. (2007) 8 SCC 120.
5
Pawan Kumar v. State of Haryana (2003)11 SCC 241 (SC); H.M. Seervai, Constitutional Law of India, (4th Edn. Vol. 1
2010); Halsbury’s Laws of India (Vol. 35, 2007).
6
C.C.E v. Standard Motor Products (1989) AIR 1298 (SC); H.M. Seervai, Constitutional Law of India (4th Edn. Vol. 2
2010).
7
Narpat Singh v. Jaipur Development Authority,(2002) 4 S.C.C. 666.
8
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004)3 SCC 214 (SC).
9
Balakrishna v. Rmaswami ,(1965) AIR 195 (SC).; Arunachalam v. Sethuratnam, AIR 1979 SC 1284.
restriction of homosexuals from being surrogate parents will impact on people in large amount
therefore there is a question of General public importance. The special jurisdiction under Article 136 of
the Constitution is meant to correct manifest injustice or errors of law of great moment. 10 Where
findings are entered without considering relevant materials and without following proper legal
procedure, SC interference is called for.11 In Indiacan country has Separation of Powers for each organs
i.e. Judiciary, Executive, Legislature, Implementation of Uniform Civil Code is up to Legislature
therefore the HC did not follow the Constitutional Procedure. has its own power A Constitution
Bench12 of this Court, while explaining the import of the said expression, observed that:
“The proper test for determining whether a question of law raised in the case is substantial
would, in our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in the sense
that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free
from difficulty or calls for discussion of alternative views”

MAINTAINABLE.
4. Where findings are entered without considering relevant materials and without following proper legal
procedure, SC interference is called for. 13 The Relevant materials i.e. F.R. of Petitioners was not
considered. Even if we assume that the case doesn’t involve substantial question of law, SC in the
exercise of its power conferred under article 136 can entertain the present appeal even on the question
of fact, wrong question leads to a wrong answer. In such cases, even errors of fact can be the subject
matter of judicial review under Art. 13614 The SC is not precluded from going into the question of facts
under article 136, if it considers it necessary to do so.15
5. It is open to the SC to interfere with the findings of the fact given by the HC, if the HC has acted
perversely or otherwise improperly16 Article 136 uses the wording ‘in any cause or matter’. This gives
widest power to this court to deal with any cause or matter17It is, plain that when the Supreme Court
reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal has not
10
Rafiq v. State of U.P, [1980] 4 S.C.C. 262.; Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715 (722).
11
Dale & Carrington Invt. Ltd. v. P.K. Prathapan (2005) 1 SCC 212(SC).
12
Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314(SC).
13
Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 S.C.C. 212 (S.C.).
14
Cholan Roadways Ltd. v. G. Thirugnanasambandam ,(2005) AIR 570 (SC).
15
Kathi Raning Rawat v. The State of Saurashtra (1952) AIR 991 (All), Achyut Adhicary v. West Bengal (1963) AIR1039
(SC).
16
Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211(SC).
17
Pritam Singh v. The State (1950) AIR 169 (SC).
given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts,
or otherwise can stand in the way of the exercise of this power.18
6. Prem Chand Garg v. Excise Commissioner U.P. Allahabad19 and concluded that the citizens should
not suffer on account of directions of the Court based upon error leading to conferment of jurisdiction,
here by the judgment of HC, 20% muslim people of Indica and gay or lesbian will suffer as the
judgment of HC is harming there F.R..Art.136 is the residuary power of the Supreme Court to do
justice where the Court is satisfied that there is injustice.20 The SC cannot abandon its duty to prevent
violent miscarriage of justice by hesitating to interfere where interference is imperative. 21 SLP should
be granted in cases where substantial and grave injustice has been done and that the case in question
presents features of sufficient gravity to warrant review of the decision appealed against. 22 Article 13
makes Judiciary, as the guardian, protector and the interpreter of the Fundamental Rights23 there was
violation of F.R.s of 20% Muslims and Gay/Lesbian couples in Indican Country, therefore the Present
petition is maintainable.
[ISSUE II]WHETHER THE DIRECTION REGARDING UNIFORM CIVIL CODE IS TO BE SET
ASIDE
It is humbly submitted before this court that the directions regarding the Uniform Civil code is needed
to be set aside as they are not compatible with the circumstances of the Indican Society.

7. The religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the
spirit of man. It must be capable of expression in word and deed, such as worship or ritual 24. To profess
a religion means the right to declare freely and openly one's faith.25 Religious practices or performances
of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular
doctrines.26
18
Sripur Paper Mills v. Commr. of Wealth Tax (1970) AIR1520 (SC); Om Prakash Sood v. UOI (2003) 7 SCC 473(SC).
19
Naresh Shridhar Mirajkar v. State of Maharashtra, 1967 AIR, 1 1966 SCR (3) 744; Smt. Ujjam Bai v. State of U.P., 1962
AIR 1621, 1963 SCR (1) 778.
20
C.C.E v.Standard Motor Products, A.I.R. 1989 S.C. 1298.
21
Arunachalam v. Sadhanantham, A.I.R. 1979 S.C. 1284.
22
Pritam Singh v. The State, A.I.R. 1950 S.C. 169.
23
State of Madras v. V.G. Row, AIR 1952 SC 196: 1952 SCR 597.
24
SP Mittal v. Union of India, AIR 1983 SC 1.
25
Punjab Rao v. DP Meshram, AIR 1965 SC 1179.
26
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
8. The Apex Court has held in Commissioner, H.R.E. v. L.T. Swammiar27 that:
“A religion may not only lay down a code of ethnical rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of worship, which are regarded as integral parts of
religion and these forms and observance might extend even to matters of food and dress.”
2.1.1 IT VIOLATES ARTICLE 25 & 26 OF INDICAN CONSTITUTION

9. During the discussion upon Article 44 (Art. 35 of the Draft Constitution) in the Constituent Assembly,
Mr. Mahboob Ali Baig argued that:
“People seem to think that under a secular state, there must be a common law observed by its citizens
in all matters including matters of their daily life, their culture, and their personal laws. This is not the
correct way to look at the secular state. In a secular state, citizens belonging to different communities
must have the freedom to practice their own religion, observe their own life and their personal laws
should be applied to them.”28
10. Article 25(1) guarantees to every person, and not only to the citizens of India, the “freedom of
conscience” and “the right to freely profess, practice and propagate religion”. While Article 25 confers
the particular rights on all persons, Article 26 is confined to religious denominations, or any section
thereof. Article 26 thus guarantees collective freedom of religion. The term "religious denomination” in
Article 26 means a religious sect having a common faith and organization and designated by a
distinctive name. The words “religious denomination” take their colour from the word “religion”.
Therefore, in case of a denomination, there must be a common faith of the community based on
religion, and the community members must have common religious tenets peculiar to themselves.29
11. The Court therefore while interpreting Article 25 and 26 strikes a careful balance between matters
which are essential and integral part and those which are not and the need for the State to regulate or
control in the interests of the community30 The expression 'matters of religion' in Article 26 extends to
acts done in pursuance of religion and covers rituals, observances, ceremonies and modes of worship31
12. In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay32, a Constitution Bench of the Supreme
Court held that Articles 25 and 26 embody the principles of religious toleration that has been the
characteristic feature of the Indian civilization from the start of history. In State of Madras v. Srimathi
27
1954 AIR 282, 1954 SCR 1005.
28
Constituent Assembly Debates, Vol. VII, p. 544.
29
Ramaswami Mudaliar v. Commr., H.R.E., AIR 1999 Mad 393; Sri Adi Visheshwara of Kashi Vishwanath Temple v. State
of Uttar Pradesh, (1997) 4 SCC 606.
30
AS Narayana Deeshitalyu v. State of Andhrn Pradesh, (1996) 9 SCC 548.
31
Jagannath Ramanuj Das v. State of Orissa, AIR 1954 SC 400; Dargah Committee v. Husain AH, AIR 1961 SC 1402
32
AIR 1962 SC 853.
Champakam33, the apex court held that “directive principles of state policy have to conform to and run
as subsidiary to the Chapter of Fundamental Rights and in case of any conflict between fundamental
rights and directive principles, the fundamental rights would prevail.”
13. In the case of State of Rajasthan v. Union of India34, the court rejected the petition on the ground that
it involved a political question and therefore the court would not go into the matter. In S.R. Bommai v.
Union of India 35 , the hon’ble judges observed that ‘there are certain situations where the political
element dominates and no judicial review is possible and power of Parliament to reform and rationalize
the personal laws is unquestioned’.
14. In Maharshi Avadhesh v. Union of India 36 , this Court had specifically declined to issue a writ
directing the respondents to consider the question of enacting a common Civil Code for all citizens of
India holding that the issue raised being a matter of policy, it was for the Legislature to take effective
steps as the Court cannot legislate in this matter. Further, the Supreme Court refused to declare Muslim
Personal Law as void by saying that the issues raised were fit to be dealt with by the legislature and not
the Courts37.
15. The attempt of judiciary to interpret certain verses of Qur'an and admonition to state with regard the
Uniform Civil Code definitely frustrates the well-established principle of 'Judicial self-restraint' and the
concept of 'Judicial Activism' surely does not permit Indian independent judiciary to do like this. 38 The
constitution leaves it, entirely and exclusively to the wisdom of the state when, how, in what way, and
to what extent it can and should apply the principle of uniformity in making civil laws39
16. In case of Ahmedabad Women’s Action Group (AWAG) v. Union of India40, Muslim personal law
regarding polygamy and oral divorce by uttering the word ‘talaq’ thrice, popularly known as “triple
talaq”, were challenged on the ground that they violated the fundamental right to equality. The Court
held that the since the petition raised questions of social policy it fell outside the scope of its power. It
33
AIR 1951 SC 228; Mohd. Hanif Quareshi & Others v. The State Of Bihar, 1958 AIR 731, 1959 SCR 629.
34
AIR 1977 SC 1361
35
[1994] 2 SCR 644 : AIR 1994 SC 1918
36
1994 Supp. (1) SCC 713.
37
Ahmedabad Women Action Group v. Union of India, AIR 1997 SC 3614; (1997) 3 SCC 573, Pannalal Bansilal Patil v.
State of Andhra Pradesh, AIR 1996 SC 1023;(1996) 2 SCC 498.
38
Mohd. Shabbir, Muslim Personal Law and Judiciary, p. 271 (1988).
39
Tahir Mehmood, Uniform Civil Code : Fictions and Facts, p. 129(1995).
40
AIR 1997, 3 SCC 573; Krishna Singh v. Mathura Ahir, AIR 1980 SC 707; C.Masilamani Mudaliar v. Idol of Sri
Swaminathathaswami Therukoil, (1996) 8 SCC 525; Saumya Ann Thomas v. Union of India, 2010 (1) KLT 869: ILR 2010
(1) Ker 805
further held that whether to have a legislation or not is solely a policy decision and the court cannot
give any direction in this regard.41
17. In Lily Thomas and Ors. v. Union of India and Others 42, the Supreme Court has reiterated that it has
no power to give direction for enforcement of the Directive Principles of State Policy as they do not
create any judiciable right. Further, in Maharishi Avadhesh v. Union of India 43 this Court while
dismissing a Petition under Article 32 of the Constitution held that:
“The prayer is to issue a writ of mandamus to the respondents to consider the question of enacting a
common Civil Code for all citizens of India. These are all matters for legislature… The writ petition is
accordingly dismissed.”
A. The family life of Indians is, rightly or wrongly, guided by their respective religious and customary
beliefs. Religions more or less survive only through the ceremonies and social customs enforced upon
its members. If they are negated, soon enough religions will lose their eminence in social sphere.
B. A Uniform Civil Code will not prove good for the country because India has a very diverse culture with
people of various religions living and professing their religion. So blindly copying the west positivism
centered legal trajectory would not be a wise choice.44
C. Besides, the continuing personal law system can handle the potential inequality through the intricate
process of gradual harmonization of Indian personal laws.45
D. Discrimination made by the Act between the Hindus and the Muslims does not offend the equity
provision of the Constitution46
E. This aspect of Supreme Court's observation can be respectfully submitted as "Unwarranted" uncalled
for. How can a Uniform Civil Code be enforced in India based on diversified languages, religion, laws
(in rare areas only) and culture47
41
Pannalal Bansilal Patil v. State of A.P., AIR 1996 S.C. 1023; P. Koteswara Rao “Shah Bano’s Case and Uniform Civil
Code”, The Jornal of Indian Law Institute, Vol. 27, p. 572, (1985); Virendra Kumar,“Towards a Uniform Civil Code
Judicial Vicissitudes (From Sarla Mudgal(1995) to Lily Thomas (2000)” Vol. 42 pg. 314,(2000).
42
(2000) 6 SCC 224, P.M. Ashwathanarayana Setty and Ors. v. State of Karnataka Ors., 1989 AIR 100, 1988 SCR Supl. (3)
155;His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr,
43
1994 (supp) I SCC /18. Bhaurao Shankar Lokhande & Anr v. State Of Maharashtra & Anr 1965 AIR 1564, 1965 SCR (2)
837
44
Werner Menski,The Uniform Civil Code Debate in Indian Law ,German Law Journal Vol9 Issue 3, 214 (2008).
45
Amit Kumar Kashyap, Decoding Uniform Civil Code: Scope and Practicability, available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520935
46
State of Bombay v. Narasuappa Mali AIR 1952 Bom 84.
47
Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935
 MAINTENANCE U/S 125 OF CR.P.C. IS NOT MAINTAINABLE
18. Section 125, CrPC deals with the maintenance of wives, children and parents. The Chapter constitutes
a self-contained Code and provides remedies for the execution, implementation and enforcement of the
orders passed by judicial magistrates48.It was held in Iqbal Bano v. State of U.P. & Anr.49 that a direct
petition under section 125 can be filed by a non-divorced Muslim wife. Even if a petition has will filed
under section 125 by a divorced Muslim wife the Magistrate is free to treat such petition as a petition
under 1986 Act.
19. Abdul Gafoor Kunju v. Patumma Beevi50, Hon'ble High Court held that the Section 125 to 128 of the
Cr.P.C. are not repealed but excluded or restricted. The well-known rule of interpretation is that a
special law excludes a general law when a special law namely the Muslim women (Protection of Rights
on Divorce) Act, 1986 was passed to govern maintenance to Muslim wives, application to general law
i.e. under code was excluded or restricted.51 Therefore Nazia will not be entitled for the maintenance
u/s 125 of CrPC.
20. In Seikh Mohammad v. Naseem Begum, 52 the Hon'ble High Court held that Muslim divorced wife
alone cannot apply for the maintenance under chapter IXth of CrPC., she can only apply under this
chapter IX, Section 125 of CrPC,, when there is an agreement between her and her husband under
Section 553 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The court held that
Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 has been designed to
mean that no proceeding can be initiated on the application of Section 125 of Criminal Procedure Code,
1973 by divorced Muslim wife unless there is an agreement between her and her husband to be
governed under Section 125 of Criminal Procedure Code, 1973. There was no such agreement between
Nazia and her husband so she cannot claim for the maintenance u/s 125 of CrPC. Further in case of
Mohamed Haneefa v. Mariam Bi54 the court stated that in case of clash between personal law and
48
Nand Lal v. Kanhaiya Lal, AIR 1960 SC 882 : (1960) 3 SCR 431 : 1960 CrLJ 1246; Pillai v. Barbara,( 1971)3 SCC9 23:
(1972)SCC (Cri) 171; Bhagwan Dutt v. Kamla Devi, AIR 1975 SC 83 : (1975)2 SCC 386: (1975)2 SCR 483: 1975 CrLJ 40;
Savitaben v. State of Gujarat, AIR 2005 SC 1809: 2005 CrLJ 2141: (2005) 3 SCC 636; Chaturbhuj v. Sita Bai, AIR 2008
SC 530: 2008 CrLJ 727 : (2008) 2 SCC 316.
49
(2007) 6 SCC 785.
50
(1989 (1) KLT 337)
51
Usma Khan Bahmani v. Fathimunnissa Begum, AIR 1990 AP 225, 1990 CriLJ 1364
52
2006(3) ALL MR(Cri) 2411.
53
Sec 5: Option to be governed by the provisions of section 125 to 128 of Act 2 of 1974.—If, on the date of the first hearing
of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any
other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be
governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974); and file such
affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.
54
AIR 1969 Mad 414, 1969 CriLJ 1412, (1969) 1 MLJ 97.
CrPC the former shall prevail. This position was seconded by the Supreme Court in Saira Bano v.
A.M. Abdul Gafoor.55
21. Thus, the instant matter is not maintainable as Nazia Yusuf cannot claim maintenance u/s 125 of the
CrPC The Muslim Women (Protection of Rights on Divorce) Act, 1986, shall prevail and so the
maintenance proceeding should be instituted under the Act of 1986.
22. However, for the sake of argument, if we take the instant matter to be maintainable. Yet, Nazia Yusuf is
not entitled for maintenance as it would be violative of the contract between Nazia Yusuf and Aslam
Khan.
23. In case of Yusuf v. Sowramma 56 it was held by the Hon’ble Supreme Court that “no religious
significance or social solemnity attach to Muslim marriage and it is mere a civil contract”. In the case
of Mahmad Usaf Abasbhai Bidiwale v. Harbano Mansoor Atar57 also, it was held that “marriage
under the Mohammedan law is a civil contract, hence it should attract all the incidents of contract as
any other as stipulated in the Contract Act”.
24. In case of Muhammad Moinuddin v. Jamal Fatima 58 the parties had entered into a pre-nuptial
agreement for grant of an allowance in case of disunion or dissension between the couple. On
dissension the husband divorced her and the wife claimed the allowance. The Court held that contract
valid and held the divorced wife to be entitled to receive the allowance as per the contract.
25. In John Vallamattom v. Union of India59 and in Mst. Zohara Khatoon v. Mohd. Ibrahim60 this court
has observed that divorce given unilaterally by the husband is the most common form and is peculiar to
Mohammadan Law; and this form of talaq has to be accepted as being legal. The Court has further
dismissed the matter regarding declaration of Muslim Women Protection of Right on Divorce) Act,
1986 as void being arbitrary and discriminatory and in violation of Articles 14, 15, 38, 39 and 39-A of
the Constitution of India ,The court observed that these issues are related to legislature and cannot be
entertained by the court61.
26. In present matter also, Aslam Khan had agreed to provide ₹4000 per month and Nazia Yusuf consented
to this. However three months after having been taking the money, she filed the petition before
magistrate for ₹8000 per month. By doing so, she has violated the terms of the contract, and she is not
entitled for the increase in the sum of money.
55
1989 Cri LJ 1519 (Punj & Har)
56
AIR(1971) Ker. 261
57
(1978) Mah LJ 26
58
(1921)ILR 43 AII 650.
59
AIR 2003 SC 2902.
60
AIR 1981 SC 1243.
61
Maharishi Avadhesh v. Union of India, 1994 SCC, Supl. (1) 713
 RAHIM KHAN (RANVIJAY KAPOOR) CANNOT BE PROSECUTED FOR BIGAMY U/S 494, IPC.
27. The Bombay High Court in Dr. Abdur Rahim Undre v. Smt. Padma Abdur Rahim62 , under which
was also referred to by the learned trial court wherein it was held that, “it is a well-known principle of
civil law that a person born into or following one religion continues to belong to such religion subject
to conversion to another religion. Conversion to another religion basically requires change of faith.”
28. As per the principles of Mohammedan Law Any person who professes the Mohammedan religion, that
is, acknowledges that there is but one God and the Mohammad is His Prophet, is a Mohammedan.63
Such a person may be a Mohammedan by birth or he may be a Mohammedan by conversion. 64 It is also
not necessary that he should observe any particular rites or ceremonies, or be an orthodox believer in
the religion; no Court can test or gauge the sincerity of religious belief.65
29. In Chandra v. M. Thangamuthu & Anr.66, the Supreme Court laid down the following test to prove
conversion:
“It is a settled principle of law that to prove a conversion from one religion to another, two elements
need to be satisfied. First, there has to be a conversion and second, acceptance into the community to
which the person converted. It is obvious that the need of a conversion cannot be altogether done away
with.”
30. Thus, Mohammedan law applies not only to persons who are Mohammedans by birth but by religion
also, 67 a convert changes not only his religion but his personal law also. 68 Additionally, the
Mohammedan law allows that a Mohammedan may have as many as four wives at the same time but
not more. Even if he marries a fifth wife when he has only four, the marriage is not void, but merely
irregular.69
31. Marriage is recognized in Islam as the basis of society. It is a contract but it is also a sacred covenant.
Marriage as an institution leads to the uplift of man and is a means for the continuance of the human
62
AIR 1982 Bombay 341.
63
Narantakat v. Prakkal, (1922) 45 Mad 986; Hakim Khalil v. Malik Israfi, (1917) 2 Pat LJ 108; Shihabuddin Imbichi Koya
Thangal v. Ahammed Koya, (’71) A.K. 206; Queen-Empress v. Ramzan, (1885) 7 All 461; Ata-Ullah v. Azim-Ullah, (1890)
12 All 494; Jiwan Khan v. Habib, (1933) 14 Lah. 518.
64
Abraham v. Abraham, (1863) 9 Moo I.A. 199, 243.
65
Abdool Razack v. Aga Mahomed, (1894) 21 I.A. 56,64
66
(2010) 9 SCC 712.
67
Jowala Buksh v. Dharun Singh, (1866) 10 M.I.A 511.
68
Mittar Sen Singh v. Maqbul Hasan Khan, (1930) 57 I.A 313.
69
Liaqat Ali v. Karim-un –nissa, (1893) 15 All 396,398; Habibur Rahman v. Altaf Ali, (1921) 48 I.A. 114; Budansa v.
Fatma Bi, (1914) 26 Mad L.J. 260; Nandi v. The Crown, (1920) 1 Lah 440; Government of Bombay v. Ganga, (1880) 4
Bom 330.
race. It has also been said that marriage is so holy a sacrament that in this it is an act of ibadat or
worship, for it preserves mankind free from pollution.70
32. Though the sacramental nature of marriage is considered as an orthodox view but it is also supported
by the judiciary. Anis Begum v. Mohammad Istafa71 is a leading case on the point where Sulaiman,
C.J., has tried to put a more balanced view of the Muslim marriage by holding it both a civil contract
and a religious sacrament.
33. Further, the Hon’ble Chief Justice while reviewing the case of Abdul Kadir v. Salima,72 observed that:
"It may not be out of place to mention that Maulvi Samiullah (D.J. Rae Bareilly) collected some
authorities showing that marriage is not regarded as a mere civil contract but as religious sacrament.
Though the learned C.J. does not himself say that marriage is a sacrament, but from the context in
which he said, it is clear that he supported the view of Maulvi Samiullah.”
34. In the case of Shoharat Singh v. Jafri Begum73also, the Privy Council held that Nikah (marriage)
under the Muslim law is a religious ceremony.
35. Likewise, there is a consensus of Muslim Jurists that Nikah or marriage is a Sunnat Muwakkida. A
Sunnat Muwakkida means that “the person, who complies with it, is rewarded in the next world, and he
who does not, commits a sin.”
36. Prominent Jurist Dr. Jang is of the opinion that, “Marriage though essentially a contract is also a
devotional act; its object are rights of enjoyments and procreation of children and regulation of social
life in interest of society”.74 Similar is the view of Abdur Rahim, who said that, “the Mohammedan
jurists regard the institution of marriage as partaking both of nature of Ibadat or devotional acts and
Mumalat or dealings among men.”75
37. Prophet Muhammad is also reported to have said:
“Marriage is my Sunna and those who do not follow this way of life are not my followers.”
38. The Supreme Court has observed that “religion is the belief which binds the spiritual nature of man to
super-natural being. It includes worship, belief, faith, devotion, etc. and extends to rituals. Religious
right is the right of person believing in particular faith; to practice it, preach it and profess it”.76 Further
in H.H Srimad Peralulala v. State of Tamil Nadu77, this Court has observed that “what constitutes an
70
Ameer Ali: Students 7th Edn., p.97.
71
(1933) 55 APP 743.
72
(1886) 8 All 149.
73
(1915) 17 BOMLR 13.
74
Dr. M.U.S. Jang, “Dessertion on the Development of Muslim Law in British India”, p.1,2.
75
Abdur Rahim, “The Principles of Mohammaden Jurisprudence”, Lahore Edn. 1958, p. 327.
76
P.M.A Metropolitian v. Moran Mar Marthoma, AIR 1995 SC 2001.
77
AIR 1972 SC 1586, at 1593.
essential part of the religion or religious practice has to be decided by the courts with reference to the
doctrine of particular religion and included practice which are regarded by community as a part of the
religion”
39. The Apex Court has stated in Commr., HRE, Madras v. Sri Lakshmindra78 that “the guarantee under
the Constitution of Indica, not only protects the freedom of religious opinion, but it protects also acts
done in pursuance of religion”. Religious practices are reflective of matters concerning religion and if
religion is to be venerated, then the practices annexed thereto are equally respectable and have to be
complied with.
40. Explanation I to Article 25 provides that wearing and carrying of kirpans by the Sikhs is included in
the profession of Sikh religion. Further, in Gurleen Kaur v. State of Punjab79 a full bench of Punjab
and Haryana High Court has held that keeping unshorn hair is an essential component of Sikh religion.
Therefore a rule by which admission was denied to male students who had shorn their hairs and female
students who had plucked their eyebrows was upheld under Article 25. Similarly, in R.M.K Singh v.
State of Bihar, 80 the performance of shraddh and offering of pinda were held to be an integral part of
the Hindu religion and religious practices.
41. In the present matter also, Rahim Khan (Ranvijay Kapoor) had the fundamental right to choose to
practice Islam religion. After being converted to Islam, the Mohammedan law would be applicable on
him, which allows polygamy. Thus, when he went for another marriage, he committed no offence, as
his religion allowed it. Moreover, marriage being a sacramental and religious practice, Rahim Khan has
a fundamental right to do the same, and it cannot be denied to him.
[ISSUE III] WHETHER THE SURROGACY CONTRACT BETWEEN PETITIONER (1) AND MS.
RADHIKA IS VALID UNDER PRESENT CIRCUMSTANCES?
 SECTION 377 OF I.P.C. IS UNCONSTITUTIONAL IN NATURE

42. It is humbly submitted before this Hon’ble Court that the Surrogacy Contract between Petitioner (1)
and Ms. Radhika is valid under present Circumstances, Section 377 of Indican Penal Code, violates the
Fundamental Rights of Indican Citizens. A sexual Act should be considered as an offence when it is
against the will of the victim and with the criminal intention of the Accused, but if a voluntarily act
considered as an offence it is against the fundamental as well as human rights. In the case of Suresh
78
AIR 1954 SC 282, 290
79
C.W.P No.14859 of 2008
80
AIR 1976 PAT 198
Kumar Kaushal v. Naz Foundation and Ors.81 Court held that “We declare that Section 377 IPC,
insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21(Right to
life), 14 (Right to Equality) and 15 (Discrimination) of the Constitution. The provisions of Section 377
IPC will continue to govern non-consensual penile non-vaginal sex and penile non vaginal sex
involving minors”. If any statute violates Fundamental Right it must be struck down.82
3.1.1-SECTION 377 OF I.P.C. FALL UNDER JUDICIAL POWER OF THIS HON’BLE COURT
43. In State of Madras v. V.G.Row83 , “while impliedly explicating the scope of power under Article 1384 it
was held that if the legislation in question violated a fundamental right, it would have to be struck
down "in discharge of a duty plainly laid upon the courts by the Constitution" When matters of
constitutional importance. Such as constitutionally entrenched human rights are under consideration,
the courts are obliged in discharging their own sovereign jurisdiction, to give considerably less
deference to the legislature than would otherwise be the case.85 Supreme Court held in the case of Delhi
Airtech Services Pvt. Ltd v. State of U.P.86 All pre- Constitution laws shall be void to the extent of
their inconsistency with the Fundamental Rights87. A law being made the same shall be void to the
extent of Contravention88 Section 377 of IPC is inconsistence with the Fundamental Rights it must be
held void up to extent of consensual sex
.
3.1.2-IT CREATES DISCRIMINATION ON THE BASIS OF SEX WHICH IS UNCONSTITUTIONAL (ARTICLE 15)
44. The homosexuals has been discriminated by the society, Section 377 in Naz Foundation v.
Government of NCT of Delhi 89 The decision had emphasised that Article 15 of the Constitution
81
MANU/SC/1278/2013: (2014) 1 SCC 1.
82
Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, AIR 1961 SC 564; Rakesh Vij v. Raminder Pal Singh Sethi,
(2005) 8 SCC 504.
83
AIR 1952 SC 196.; Shreya Singhal v. Union of India, (2015) 5 SCC 1:AIR 2015 SC 1523.
84
Article 13-Laws inconsistent with or in derogation of the fundamental rights.
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the contravention, be void.
85
LRs v. State of Tamil Nadu & Ors., (2007) 2 SCC 1;Raja Ram Pal v. Hon'ble Speaker, Lok Sabha & Ors., (2007) 3 SCC
184, Peerless General Finance Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343.
86
AIR 2012 SC 573 (582); State of Madras v. V.G. Row, R. (Alconbury Ltd.) v. Environment Secretary, [2001] 2 WLR
1389.
87
John Vallamattom v. Union of India, (2003) 6 SCC 611: AIR 2003 SC 2902.
88
State of Punjab v. Dalbir Singh, AIR 2012 SC 1040 (1047); State of Tamilnadu v. K. Shyam Sunder, AIR 2011 SC 3470.
89
2010 Cr.LJ 94 (Del.).
conferred personal autonomy on all individuals and prohibited discrimination on the basis of religion,
race, caste, sex and place of birth. A law is bad if discriminate on the basis of sex.90
45. The Court had recognised that a common thread runs through these – they are either immutable
characteristics or entail a fundamental choice. Article 15 (1) 91 of Indian Constitution talks about
discrimination. In the case of the Punjab Province v. Daulat Singh92, the SC held that, “It is enough
for a law to be struck down as being discriminatory on a prohibited ground that the law operates so that
its effect in some cases is that some persons are discriminated only on the basis of a prohibited
ground.”
46. A two-Judge Bench in R. Rajagopal v. State of T.N.93, held the right to privacy to be implicit in the
right to life and liberty guaranteed to the citizens of India by Article 21. "It is the right to be left alone".
A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child bearing and education among many other matters. In District Registrar and
Collector, Hyderabad and another v. Canara Bank and another94, another two-Judge Bench held that
the right to privacy dealt with persons and not places. Article 14 and 21 cover myrid features of
life95The right to privacy has been read into the right to life under Article 21 of the Constitution96
therefore Sec. 377 Violates the Right to Privacy (Art.21)
47. In People's Union for Civil Liberties v. Union of India97& Sharda v. Dharampal98, it was held that
The right to privacy has been accepted as implied in our Constitution In Bowers v. Hardwick 99
Blackmun, J. cited the following passage from Paris Adult Theatre I v. Slaton100, :"Only the most
willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human
existence, central to family life, community welfare, and the development of human personality.
90
Rajeshwari v. State of Uttar Pradesh, AIR 1954 ALL 608., Punjab Province v. Daulat Singh AIR, 1946 PC 66, State of
Bombay v. Bombay Education Society, [1955] SCR 568 ).
91
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of
them.
92
(1946) 48 BOMLR 443.; Sanghar Umar Ranmal v. State, AIR 1952 Sau 124.; Rayala M. Bhuvaneswari v.
Nagaphamender Rayala, AIR 2008 AP 98.
93
(1994) 6 SCC 632.;Vijay Prakash v. Union of India and Ors., AIR 2010 Del. 7.
94
(2005) 1 SCC 496.
95
Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd., (2007) 8 SCC 1.
96
Unni Krishnan v. State of A.P., AIR 1993 SC 2178;Gobind v. State of M.P., AIR 1975 SC 1378.;Mr. X v. Hospital
Z (1998) 8 SCC 296.
97
(1997) 1 SCC 301.
98
(2003) 4 SCC 493.
99
478 US 186 (1986).
100
413 US 49 (1973), p. 63
48. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If,
in expressing our sexuality, we act consensually and without harming one another, invasion of that
precinct will be a breach of our privacy." Section 377 IPC denies a person's dignity and criminalises
his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the
Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is
implicit in notion of life under Article 21 of the Constitution.
49. The impugned provision in Section 377 IPC criminalises the acts of sexual minorities particularly men
who have sex with men and gay men. It disproportionately impacts them solely on the basis of their
sexual orientation. The provision runs counter to the constitutional values and the notion of human
dignity which is considered to be the cornerstone of our Constitution. Section 377 IPC in its application
to sexual acts of consenting adults in privacy discriminates a section of people solely on the ground of
their sexual orientation which is analogous to prohibited ground of sex. A provision of law branding
one section of people as criminal based wholly on the State’s moral disapproval of that class goes
counter to the equality guaranteed under Articles 14 and 15 under any standard of review. The Supreme
Court has interpreted the term ‘personal liberty’ in a broad manner to include ‘right to privacy’101
3.1.4-IT VIOLATES ARTICLE 14 OF INDICAN CONSTITUTION

50. Equality is one of the magnificent corner-stones of Indian Democracy.102 In the case of Anuj Garg &
Ors v. Hotel Association of India & Ors103, if a law discriminates on any of the prohibited grounds, it
needs to be tested not merely against “reasonableness” under Article 14 104 but be subject to “strict
scrutiny”, Sec. 377 discriminate on the basis of Sexual orientation.
51. The Supreme Court has held that where a law does not offer a clear construction and the persons
applying it are in a boundless sea of uncertainties and the law prima facie takes away a guaranteed
freedom, the law must be held to offend the Constitution.105 In considering reasonableness from the
point of view of Article 14, the Court has also to consider the objective for such classification. If the
objective be illogical, unfair and unjust, necessarily the classification will have to be held as
101
Govind v. State of M.P., AIR 1975 SC 1378.
102
Indra Sawhney v. Union of India, AIR 1993 SC 477: 1992 Supp (3) SCC 212.
103
AIR 2008 SC 663, DS Nakara v. UoI (1983) 1 SCC 305, Kartar Singh v. State of Punjab (1994) 3 SCC 569, M Nagaraj v.
UoI (2006) 8 SCC 212, , Deepak Sibal v. Punjab University (1989) 2 SCC 145, Suchita Srivastava v. Chandigarh
Administration, Civil Appeal no.5845 of 2009
104
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of
India.”
105
K. A. Abbas v. Union of India, AIR 1971 SC 481.
unreasonable106 S.C. held in Krishna v. State of Madras107, stated: ‘When there is ambiguity or doubt
the construction of any clause in the chapter on Fundamental Rights, it is our duty to resolve it in
favour of the freedoms so solemnly stressed.’
52. Section 377 of IPC denies the objectives enshrined in the preamble namely: Justice, Liberty and
Equality108 to homosexual people. These objectives constitute the Basic Feature of the Constitution.109
Further, it denies equality and equal protection and makes inequality and hence it is clear violation of
Basic Feature of the Constitution and hence liable to be interfered with by the court.110 Article 14 is the
Basic feature of Indian Constitution 111 non compliance with the natural justice would amounts to
violating Art. 14.112
53. "To more successfully prevent and manage HIV/AIDS among these marginalized populations,
(intravenous drug users and MSA), a revision of the existing laws and processes is strongly
recommended........ In terms of preventing HIV/AIDS among men who have sex with men, it would be
most useful to make section 377 IPC obsolete, and instead review the legislation and endeavor to define
more clearly the age of sexual consent.”113
54. The Court has asserted that in order to treat a right as a Fundamental Right it is not necessary that it
should be expressly stated in the Constitution as a Fundamental Right. Political, social and economic
changes occurring in the country may entail the recognition of new rights and the law in its eternal
youth grows to meet social demands. 114 Homosexuality has been emerging the one of the major
demands in our country there is a need to struck down the law prohibiting it.
55. In National Human Rights Commission v. State of Arunachal Pradesh115 This Court observed:
“We are a country governed by the Rule of Law. Our Constitution confers certain rights on
every human being and certain other rights on citizens. Every person is entitled to equality
before the law and equal protection of the laws.”
106
Deepak Sibal v. Punjab University, (1989) 2 SCC 145.
107
1951 SCR 621.
108
Natural Resources Allocation, In Re Special No. 1 of 2012 10 SCC 1 (77).
109
Durga Das Basu, Shorter Constitution of India, Wadhwa And Co. (2006); pg. 1651.
110
Durga Das Basu, Shorter Constitution of India, Wadhwa And Co. (2006); pg. 1652.
111
M. Nagaraj v. Union of India, AIR 2007 SC 1:(2006) 8 SCC 212.
112
Rajasthan State Road Transport Corpn. v. Bal Mukund Bairwa, (2009) 4 SCC 299.
113
Report of the National Conference on Human Rights and HIV/AIDS, held on 24-25 November, 2000 in New Delhi and
organised by the National Human Rights Commission. http://nhrc.nic.in/Publications/report_hiv- aids.htm]
114
Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178: (1993) 1 SCC 645.
115
AIR 1996 SC 1234.
56. Surrogacy is a well-known method of reproduction, whereby a woman agrees to give birth to a child
who she will not raise, but hand over to a contracted party116. She may be the child’s genetic mother
(the more traditional form of surrogacy) or she may be, as a gestational carrier, carry the pregnancy to
deliver after having been implanted with an embryo117.Typically, the surrogate is acting for married
couple but is not limited to them and it may include gay and lesbian couples or single men or
women118.The bible promotes the idea of surrogate motherhood.119
57. Surrogacy In 2011120, a gay Spaniard couple Mauro and Juan became parents of female twins born to
them through a surrogate mother in India. The couple reached an understanding with an Indian
surrogate mother to deliver a child for them by charging ₹3.5 lakh. They couldn’t have struck such a
deal in Europe or the US, where such a procedure would have cost around $100,000. Moreover,
surrogates are nowhere as freely available as in India which penalisessame-sex relationships but
curiously, allows homosexuals to have children through surrogacy.
Law Commission of India in its 228th report121
 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.
 Surrogacy arrangement will continue to be governed by contract amongst parties. Such a contract will
contain all the terms requiring the consent of surrogate mother to bear the child, agreement of her
husband and other family members for the same, medical procedures for artificial insemination,
reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the
child born to the commissioning parents etc.
 The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s)
only.
3.2.1-SURROGACY IS VALID IN INDIA.
58. According to the Black’s Law Dictionary122 , surrogacy means the process of carrying and delivering a
child for another person. The present case is of commercial surrogacy because agency has received
116
Anita Stuhmcke, “For Love or Money: The Legal Regulation of Surrogate Motherhood” Surrogate Motherhood: Law and
Legislation (1995).
117
J. Arijit Pasayat in Baby Manji Yamada v. Union of India, AIR 2009 SC 84.
118
Typically, the surrogate is acting for married couple but is not limited to them and it may include gay and lesbian couples
or single men or women.
119
Genesis 16:2 So she said Abrahm, “the Lord has kept me from having children. Go, sleep with my slave; perhaps I can
build a family through her.”
120
Aditi Tondon , “Gay Couple Realises Parenthood Dream In India” The Tribune, February 17, 2011.
121
Extracted from Law Commission of India, Report No. 228, “Need for Legislation to Regulate Assisted Reproductive
Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy” (August, 2009).
money from the couple and there was an agreement signed from both sides 123 and commissioning
couple. There is no statutory framework for surrogacy in India but it does not make commercial
surrogacy illegal124 Courts in India do not find anything immoral and unethical about obtaining child
through surrogacy arrangement.125Apex Court has already cleared all the doubts regarding commercial
surrogacy and specifically stated that commercial surrogacy is legal in India and surrogacy agreements
are governed by Indian Contract Act, 1872.126 Further, Court as well as Law Commission of India127
heavily relied on ICMR128guidelines which also recognize commercial surrogacy129. Thus, commercial
surrogacy is valid in India.
59. In surrogacy contracts all of genetic mother’s parental rights subsequent to the child’s birth.”130The
Supreme Court of India131 has defined surrogacy as: “a method of reproduction, whereby a woman
agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but
hand over to a contracting party.”Illiteracy of Ms. Radhika does not have any adverse effect on the
legality of surrogacy agreement. It is a settled position of law that whenever any party in contract is
illiterate then to establish that contract was valid; it has to be shown that there was not mere physical
act of the executant but the mental act also132
60. The Supreme Court in the landmark decision of Baby Manji Yamada v. Union of India and Anr.133
legalized commercial surrogacy with a direction to the legislature to pass an appropriate law governing
surrogacy in India. At present, a surrogacy contract between the parties and Assisted Reproductive
Technique (ART) Clinics Guidelines are the only two guiding forces for governing this transaction.
The fertility market is estimated at Rs. 25,000 crore today, with reproductive tourism industry growing
by leaps and bounds. The past two years have seen a 150 per cent rise in surrogacy cases in India. The
Gujarat town of Anand, for example, is a hub of surrogate mothers.134
122
Garner, A., Brayan, Black’s Law Dictionary, Thomson Reuters, (9th Edn.)
123
Sample Surrogacy Agreement.
124
P. Geetha v. Kerala Livestock Development Board Ltd., 2015 (1) KLJ 494.
125
K. Kalaiselvi v. Chennai Port Trust, (2013) 3 MLJ 493; M. Veersamy v. State of Tamil Nadu, 2012 (3) CTC 641.
126
Baby Manji Yamada v. Union of India, AIR 2009 SC 84; K. Kalaiselvi v. Chennai Port Trust, Represented by the
Chairman, Chennai, 2013 Indlaw MAD 252; 2013 (2) CTC 400; Jan Balaz v. Anand Municipality and Others, 2009 Indlaw
GUJ 4468; AIR 2010 GUJ 21; Rama Pandey v. Union of India and others, 2015 Indlaw DEL 3091; 2015 (221) DLT 756.
127
Law Commission Of India, Report No.228, Need For Legislation To Regulate Assisted Reproductive Technology Clinics
As Well As Rights And Obligations Of Parties To A Surrogacy, August 2009.
128
Indian Council of Medical Research, 1949.
129
National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, Guidelines No. 3.5.4. (Issued
by ICMR).
130
Smita Chandra, Surrogacy & India, (Jan. 18, 2013), http://ssrn.com/abstract=1762401.
131
Baby Manji Yamada v. Union of India, AIR 2009 SC 84.
132
Nani Charan Kul. v. Pratima Maity., AIR 2003 SC 4351; Sulender Singh v. Pritam, MANU/HP/0107/2013.
133
(2008) 13 SCC 518.
134
N.B. Sarojini and Aastha Sharma, “Guidelines Not Enough, Enact Surrogacy Laws”, Hindustan Times, August 8, 2008.
61. Jan Balaz v. Anand Municipality135 a German couple entered into a contract with a surrogate mother
in India and consequently, twin children were born. The question that arose was whether the children
would be entitled to Indian citizenship by birth as they were born in India to an Indian national. The
passport authorities had withheld the children’s passports on account of the pending litigation. In its
final decision, the Supreme Court granted an exit permit to the children, thus evidencing again, a pro-
surrogacy contract stance of the judiciary.
3.2.2-HOMOSEXUAL CAN BE A LEGAL GUARDIAN OF CHILD IN INDIA.

62. Hon’ble Apex Court has made it clear that a homosexual can be a legal guardian of the minor child 136
Law Commission in its 228th report also affirmed that a homosexual can be considered to be the
guardian in cases of surrogacy arrangement if he is biological father of the child.

63. Under the Indian Constitution, a surrogacy transaction can be recognized indirectly by interpreting
certain constitutional provisions. One of the vital interpretations is with respect to Article 21 which is
understood to be wider than mere ‘animal137 or Physical138 Existence and includes all aspects of life
which make it worth living. As opposed to the negative right of freedom from state interference, Article
21 has a ‘positive’ content encompassing the quality of life and ‘the right to carry on such functions and
activities as constitute the bare minimum expression of the human self.’139 And human Dignity.140 In
India, ‘the right to have reproductive choices’ has been declared as a part of Article 21 of the
Constitution141.
64. The Andhra Pradesh High Court in B.K. Parthasarthi v. Government of Andhra Pradesh 142
recognized reproductive rights as a fundamental right and upheld ‘the right to reproductive autonomy’
of an individual as a facet of his right to privacy. When the concept of privacy is extended to matters of
procreation, state’s interference or restrictions on procreation amount to a direct encroachment on one’s
privacy. Kharak Singh v. State of U.P.143 whether right to privacy is included in the right to personal
135
AIR 2010 Guj 21.
136
Baby Manzi Yamada v. Union of India, AIR 2009 SC 84.
137
P.Rathinam v. Union of India, (1994) 3 SCC 394.
138
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
139
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; C.E.R.C. v. Union of India, AIR
1995 SC 922; KapilaHingorani v. State of Bihar, (2003) 6 SCC 1; Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.
140
Vincent Parikurlangara v. Union of India, (1987) 2 SCC 165.
141
B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 156.
142
Ibid
143
AIR 1963 SC 1295.
liberty. Justice Subba Rao, speaking for minority, held that “right to privacy though not expressly
declared in our constitution, is an essential ingredient of the personal liberty.” It is in this situation that
the state, as a part of its positive obligation under Article 21, must make provision or must recognize
the mechanisms like surrogacy, so that parties who are unable to procreate child on their own, can
legitimately exercise their right to ‘reproductive choices’.144
65. In Maneka Gandhi v. Union of India & Anr.145, M/s. Kasturu Lal Lakshmi Reddy and Ors. v. State
of Jammu and Kashmir and Anr.,146 it was forcefully urged that the fundamental right to life and
personal liberty emanating from Article 21 of the Constitution should be allowed to stretch its span to
its optimum so as to include in the compendious term of the Article all the varieties of rights which go
to make up the personal liberty of man including the right to enjoy all the materialistic pleasures and to
procreate as many children as one pleases.
66. The right to equality under Article 14 and the right to dignity and privacy under Article 21 are
interlinked and must be fulfilled for other rights to be truly effectuated.147
 MS. RADHIKA HAS NO CLAIM ON THE CHILD DUE TO HER STATUS OF A GENETIC MOTHER & SHE IS
NOT A LEGAL GUARDIAN.
67. There was valid agreement in the present case & a Proposal from one side and accepted by other side
forms a contract148 in which one of the conditions was traditional method of surrogacy. However, this
method does not grant any special right to surrogate mother due to her status of a genetic mother. In
this method child is conceived with the intention of relinquishing the child to be raised by others
particularly by the biological father and possibly his spouse or partner, either male or female.149 The
above proposition was also considered by Hon’ble Apex court of India.150 Therefore, as per the terms &
condition of the surrogacy agreement Ms. Radhika can’t be lawful mother of the child.
144
Ibid
145
(1978) 1 SCC 248.
146
(1980) 4 SCC 1.
147
Francis Coralie Mullin v. Administrator, UT of Delhi (1981) 1 SCC 608;M. Nagaraj v. UoI (2006) 8 SCC 212;Maneka
Gandhi v. UoI (1978) 1 SCC 248;Tractor Export v. Tarapore & Co., (1969) 3 SCC 562;Jolly George v. Bank of
Cochin (1980) 2 SCC 360;Gramaphone Company of India Ltd. v. Birendra Bahadur Pandey;(1984) 2 SCC 534;Vellore
Citizens Welfare Forum v. UoI (1996) 5 SCC 647;Vishaka & Ors. v. State of Rajasthn & Ors (1997) 6 SCC 241;PUCL v.
UoI & Anr (1997) 1 SCC 301;PUCL v. UoI & Anr (1997) 3 SCC 433;Apparel Export Promotion Council v. A.K.
Chopra (1999) 1 SCC 759;Pratap Singh v. State of Jharkhand (2005) 3 SCC 551;PUCL v. UoI & Anr. (2005) 2 SCC
436;Entertainment Network (India) Ltd. v. Super Cassette Industries (2008) 12 SCC 10;Smt. Selvi v. State of
Karnataka (2010) 7 SCC 263).
148
S.M. Gopal Chetty v. Raman, AIR 1998 Mad. 111; Conrad Dias v. Joseph Dias, (1996) Mah. LJ 208.
149
Garner B.A., Black’s Law Dictionary, (9th ed., 2009); 228th Law Commission Report, Baby Manji Yamada v. Union of
India, AIR 2009 SC 84.
150
Circular No.: 5/10/8/2008-RHN, Indian Council of Medical Research, dated: 27/10/2015.
68. The agreement usually provides that the woman will relinquish to the couple any parental rights she
may have upon the birth of the child. 151 Moreover, this agreement is enforceable and the intended
parents are assured of getting those services as per the Surrogacy Arrangement Agreement.152 In India,
the surrogate mother is not considered to be the legal mother. The birth certificate is made in the
name of the genetic parents153
69. Ms. Radhika stated that she did not want to give the custody of the child. However, she accepted the
token money from the couple. Now, these two instances are contradictory to each other because any
mother, who would not want to give away her child, would never accept money for her services. There
was an intention from the both parties to form the contract which imposes legal obligation on them.154
She would be having this knowledge that couple would take away her child, despite of this fact Ms.
Radhika accepted money as token of her services from the couple who were about to take her child. In
reality, she was never having any desire to keep the baby that is why she happily accepted the token
money as symbol of her services. The surrogate and the intended parent/s are required to sign the
surrogacy agreement after clearly understanding the contents of the agreement. 155 Indian Surrogacy
Law Center156 recommends that not only intended parents and the surrogate mother but the spouse of
the surrogate mother also signs the agreement, so as to show his acknowledgement to the surrogacy
agreement157
70. Ms. Radhika has claimed that she was given choice to either keep or give the child by the agency but at
the very first instance she decided to give the child. Thus, her claim is not maintainable as she had no
desire to keep the child with her at the first place. Consequently, it is safe to conclude that Ms. Radhika
is not a fit guardian. After the child is born she has no right to keep the child because she is neither the
mother (where her ovum has not been used) nor the owner of the genetic material. She is only a
contractor who is willing to give the end product once the contract between her and the person is
fulfilled.158
151
Bryan A. Garner, Black law Dictionary (19th edition, west).
152
Dr. Nandita Adhikari, Law and Medicine, Central Law Publications, Allahabad (2012).
153
The National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by the Indian
Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS)
154
Rose v. Frank Co. v. J.R. Crompton & Bros Ltd. (1923) 2 KB 261 (CA);CWT v. Abdul Hussain Mulla Muhammad Ali,
(1988) 3 SCC 562 at p. 569.
155
Irvi H. Thakkar, “Is Surrogate Motherhood Moral?” Cri LJ 88 (2011).
156
India's First Assisted Reproductive Technology Law Firm.
157
India’s first fertility law firm, Chennai.
158
Sugato Mukherjee, “Legal and Ethical Issues of Commercial Surrogacy in India: an Overview” Available at:
http://www.academia.edu/1955503 (visited on June 25, 2013).
PRAYER
Wherefore in the lights of facts stated, issued raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that;
 THE SPECIAL LEAVE PETITION UNDER ART. 136 OF INDICAN CONSTITUTION IS MAINTAINABLE.
 THE DIRECTION GIVEN BY HIGH COURT REGARDING THE IMPLEMENTATION OF UNIFORM CIVIL CODE IS
ULTRA VIRES AND VIOLATES ARTICLE 25 & 26 OF CITIZENS OF INDICA.
 THE SURROGACY ACT. 2016 WAS UNCONSTITUTIONAL IN NATURE BECAUSE IT VIOLATES THE
FUNDAMENTAL RIGHTS OF PETITIONERS AS WELL CITIZENS OF INDICA.
And pass any other order it may deemed to fit in the interest of justice, equity and good conscience.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Sd-
PLACE- COUNSEL ON THE BEHALF OF THE PETITIONERS
NEW DELHI

H ' S C I: THE ON BLE Upreme Ourt of Ndica

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2ND AMITY MOOT COURT COMPETITION, HARYANA, 2017

THE HON’BLE SUPREME COURT OF INDICA

ABBEY PETITIONER (1)

ALL INDICA MUSLIM PERSONAL LAW BOARD PETITIONER (2)

UNION OF INDICA RESPONDENT

COUNSEL APPEARING ON THE BEHALF OF PETITIONERS

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

 THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND HENCE ENTITLED TO BE

2. WHETHER THE DIRECTION REGARDING IMPLEMENTATION & FORMATION OF UNIFORM CIVIL

 UNIFORM CIVIL CODE CANNOT BE ENFORCED IN INDICA

 SECTION 377 OF I.P.C.IS UNCONSTITUTIONAL IN NATURE

Memorial on the behalf of Petitioners Page 1

Memorial on the behalf of Petitioners Page 2

Memorial on the behalf of Petitioners Page 3

Memorial on the behalf of Petitioners Page 4

 TREITEL, G. LAW OF CONTRACT, SWEET AND MAXWELL (8TH EDITION, INDIA,2006)

 AIYAR P. RAMANATHA, ADVANCED LAW LEXICON, (3RD EDITION, 2005)

 BASU D.D, COMMENTARY ON THE CONSTITUTION OF INDIA, (8TH EDITION 2007)

 BRYAN A. GARNER, BLACK LAW DICTIONARY (19TH EDITION, WEST)

 GAUR K.D., TEXTBOOK ON INDIAN PENAL CODE ( FIFTH EDITION 2016)

Memorial on the behalf of Petitioners Page 5

 PANDEY J.N., CONSTITUTIONAL LAW OF INDIA, (51ST EDITION 2014)

 R.A NELSON, INDIAN PENAL CODE, (19TH EDITION, LEXIS NEXIS)

 RASHID’S SYED KHALID, MUSLIM LAW,(FIFTH EDITION, EASTERN BOOK COMPANY,2010)

INDIA), PUBLISHED BY OXFORD INDIA PAPERBACKS (2012)

 TOPE’S T.K., CONSTITUTIONAL LAW OF INDIA, (THIRD EDITION, EASTERN BOOK

 V.N. SHUKLA'S CONSTITUTION OF INDIA (12TH EDITION, REPRINTED, 2016)

 VOL. 2,DATAR ARVIND, COMMENTARY ON THE CONSTITUTION OF INDIA, (2ND EDITION)

 VOLUME 1. JAGDISH SWARUP, CONSTITUTION OF INDIA, THOMSON REUTERS, NEW DELHI,

Memorial on the behalf of Petitioners Page 6

 VOLUME I, SARKAR, THE CODE OF CRIMINAL PROCEDURE,(TENTH EDITION, LEXIS

 CRIMINAL PROCEDORE CODE, 1973.

 INDICAN CONTRACT ACT, 1872.

 CONSTITUTION OF INDICA, 1950.

 THE MUSLIM WOMEN (PROTECTION OF RIGHTS

Memorial on the behalf of Petitioners Page 7

Memorial on the behalf of Petitioners Page 8

Memorial on the behalf of Petitioners Page 9

1. Abdool Razack v. Aga Mahomed, (1894) 21 I.A. 56,64

Memorial on the behalf of Petitioners Page 10

Memorial on the behalf of Petitioners Page 11

Memorial on the behalf of Petitioners Page 12

Memorial on the behalf of Petitioners Page 13

Memorial on the behalf of Petitioners Page 14

Memorial on the behalf of Petitioners Page 15

Memorial on the behalf of Petitioners Page 17

Memorial on the behalf of Petitioners Page 18

 THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND HENCE ENTITLED TO BE

[ISSUE II]WHETHER THE DIRECTION REGARDING IMPLEMENTATION & FORMATION OF UNIFORM

 UNIFORM CIVIL CODE CANNOT BE ENFORCED IN INDICA

 SECTION 377 OF I.P.C.IS UNCONSTITUTIONAL IN NATURE

Memorial on the behalf of Petitioners Page 19

[ISSUE I] WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE

[ISSUE III] WHETHER THE CONTRACT OF SURROGACY BETWEEN PETITIONER(1) AND

Memorial on the behalf of Petitioners Page 21

[ISSUE I] WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE

 THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND HENCE ENTITLED TO BE

 UNIFORM CIVIL CODE CANNOT BE ENFORCED IN INDICA

2.1.1 IT VIOLATES ARTICLE 25 & 26 OF INDICAN CONSTITUTION

 SECTION 377 OF I.P.C. IS UNCONSTITUTIONAL IN NATURE

3.1.4-IT VIOLATES ARTICLE 14 OF INDICAN CONSTITUTION

3.2.2-HOMOSEXUAL CAN BE A LEGAL GUARDIAN OF CHILD IN INDIA.

 SURROGACY ACT 2016 IS THE VIOLATION OF ARTICLE 21 OF INDICAN CONSTITUTION.