TEAM CODE: TC9

5th DELHI METROPOLITAN EDUCATION

INTRA-MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE HIGH COURT, DELHI

(CIVIL APPELLATE JURISDICTION)

HONEY.....................................................................................Appellant

Versus

ASHOK LAL...........................................................................Respondent

MOST RESPECTFULLY SUBMITTED TO THE HON’BLE HIGH

COURT JUDGE

MEMORIAL ON BEHALF OF THE APPELLANT

 THE 5th DELHI METROPOLITAN EDUCATION INTRA COLLEGE MOOT COURT
COMPETITION , 2019 MEMORIAL

TABLE OF CONTENTS

LIST OF ABBREVIATIONS..............................................................................3

INDEX OF AUTHORITIES.................................................................................4

STATEMENT OF JURISDICTION......................................................................5

STATEMENT OF FACTS....................................................................................6

ISSUES RAISED...................................................................................................7

SUMMARY OF ARGUMENTS...........................................................................8

ARGUMENTS ADVANCED................................................................................9

PRAYER................................................................................................................18

MEMORIAL ON BEHALF OF APPELLANT

 LIST OF ABBREVIATIONS

 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
 INDEX OF AUTHORITIES

CASES CITED

 Mr. Parthapratim Roy Vs Mrs. Santoshi

 Dr. Normann Witzleb Vs Jyotshana Mandal & Anr
 Mr. Hassan Ezadichamkhorami vs. Mrs. Radha
 Dr. Normann Witzleb Vs Jyotshana Mandal & Anr.
 B a b y M a n j i Y a m a d a V . U n i o n O f I n d i a A n d Another
 Rama Pandey vs Union Of India &Ors
 Rihannon Elizabeth Nixon V. Mrs Vimla Devi
 Mr. Partha Pratim Roy Vs Mrs. Bibi Salma Aga
 Pathivada Rama Swai V Karoda Surya Prakasa Rao
 Narendrajeet Kaur Verses Union Of India
 Urmil A Verses Hemanta
 Ghisalal V Dhapubai
 Brijendra Singh vs. State of M.P. and another
 Madan Singh Vs Sham Kaur And Ors. On 30 November, 1971
 Bal Krishan Rastogi S/O Shyam ... Vs Dr. (Ms.) Reena Rastogi D/O Vijay

BOOKS
 MULLA HINDU LAW 21ST EDITION BY SATYAJEET A DESAI
 MODERN HINDU LAW BY DR PARAS DIWAN

LEGAL DATABASES
 http://www.manupatra.co.in
 http://www.scconline.com

LEXICONS
 Concise Law Dictionary, Lexis Nexis, 4th Edition, 2012
 Black Law Dictionary, South Asian Edition,8th Edition

LEGISLATIONS
HINDU ADOPTION AND MAINTENCE ACT ,1956
SPECIAL MARRIAGE ACT,1954
CONSTITUTION OF INDIA,1950
 STATEMENT OF JURISDICTION

THE COUNSEL FOR THE APPELLANT 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.

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.

 STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon`ble Court the facts of the present case are summarized as
follows:
BACKGROUND
1. Mr. Swaroop, a Hindu and Ms. Honey, a Christian married in April, 2003 under Special Marriage Act,
1954. As they did not have any child till 2006, Swaroop proposed to adopt a girl child of one year old, in
January 2007, who was none other than Swaroop’s own sister’s daughter, who was already having two
daughters and Honey reluctantly agreed for it. The girl was given in adoption by her natural father to Swaroop.
The child was named as Niti.

2. But post-adoption, Honey got adamant that they should have a child of their own genes. So they planned
to have a child through surrogacy and in consultation with Dr. Morris in Delhi a surrogacy agreement was
entered into with Ms. Neeta and they got a surrogated boy child, born on 1st September, 2008.

3. As Honey wanted to name the child as Kevin and Swaroop wanted to name him as Rahul, the naming
ritual was postponed for some time. Unfortunately Mr. Swaroop was involved in an accident and died on
15thOctober, 2008. Honey started calling the child as Kevin and got the name registered as Kevin on the birth
certificate.

4. When Swaroop’s father, Ashok Lal, expressed that Niti was entitled to a share in the property of
Swaroop, Honey and her father replied that the said adoption was not valid as Honey was a Christian who
could not adopt under Christian law and hence Niti would not get any share in Swaroop’s property.

5. Swaroop’s father filed a suit on behalf of his grand-daughter, Niti, for a share in Swaroop’s property in
the District Court and for a declaration that Kevin is not entitled to any share in his father’s property as he is
neither the natural nor adopted son of Swaroop.

6. The court through its order dated 1st April, 2009 held that there was a valid adoption and the adopted
child, Niti, would be entitled to a share in Swaroop’s property as Swaroop was entitled to adopt as per Hindu
Adoptions and Maintenance Act, 1956 and his Christian wife’s consent was irrelevant as per proviso to S.7 of
the said Act.

7. The District Court refused to declare that Kevin was not entitled to a share in Swaroop’s property. Honey
preferred an appeal before the High Court of Delhi challenging the validity of adoption on the ground that
since their marriage was performed under Special Marriage Act, 1954, Swaroop had lost his right of adoption
as a Hindu,

8. She also has requested the Court to declare that Kevin has the same rights available to a natural born
child as he was conceived with Honey’s egg and Swaroop’s sperm.
 ISSUES RAISED

THE APPELLANT RESPECTFULLY ASKS THE HON’BLE HIGH COURT, THE FOLLOWING
QUESTIONS:

 ISSUE – 1
WHETHER OR NOT THE HON’BLE TRIAL COURT WAS JUSTIFIED IN HOLDING
NITI’S ADOPTION VALID

 ISSUE- 2
WHETHER OR NOT KEVIN HAS THE SAME RIGHTS AVAILABLE TO A NATURAL
BORN CHILD AS HE WAS BORN THROUGH SURROGACY
 SUMMARY ARGUMENT

1 ISSUE – WHETHER OR NOT THE HON’BLE TRIAL COURT WAS JUSTIFIED

IN HOLDING NITI’S ADOPTION VALID

1.1 CHALLENGING THE VALIDITY OF THE ADOPTION OF NITI BY THE

DISTRICT COURT

1.2 NOT FULLFILMENT OF CONDITION OF VALID ADOPTION AS PER

HINDU ADOPTION AND MAINTENANCE ACT , 1956

1.2.1 Not valid consent

1.2.2 Absence of performance of ceremonies

1.2.3 Absence of adoption deed

1.2.4 Absence of consent of natural mother

1.3 Consequences of void adoption

2 ISSUE – WHETHER OR NOT THE KEVIN HAS THE SAME RIGHTS AVAILABLE
TO A NATURAL CHILD AS HE WAS BORN THROUGH SURROGACY.

2.1 SURROGACY

2.1.1 DEFINITION

2.1.2 GESTATIONAL SURROGACY

2.2 ARGUMENTS

2.2.1 WHO WILL CONSIDER AS LEGAL MOTHER

2.2.2 WHO WILL CONSIDER AS LEGAL FATHER

2.2.3 LEGITIMACY OF SURROGATE CHILD

 ARGUMENTS ADVANCED

ISSUE 1: WHETHER OR NOT THE HON’BLE TRIAL COURT WAS JUSTIFIED IN

HOLDING NITI’S ADOPTION VALID

1.1 CHALLENGING THE VALIDITY OF THE ADOPTION OF NITI BY THE DISTRICT

COURT
It is submitted that the Hon’ble district court through its order held that there was a valid
adoption as per proviso of section 7 of Hindu adoption and maintenance act , 1956

The Hon'ble trial court is justified by their order because Swaroop has lost his right to adopt under
the Hindu adoption and maintenance act 1956 as he and Appellant were solemnized under special
marriage act and persons will not continued to be govern under their personal laws

It is submitted that if the Swaroop governed under Hindu adoption and maintenance act then also he
had not validly adopted the child because there are absence of requisites of valid adoption

1.2 NO FULLFILMENT OF CONDITION OF VALID ADOPTION AS PER HINDU

ADOPTION AND MAINTENANCE ACT , 1956

 NO VALID CONSENT
It would be relevant to refer to Section 7 of HAMA of 1956, which reads as under:-
"7. Capacity of a male Hindu to take in adoption -
Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or
a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his
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."
As per this provision, Honey, the living wife of Swaroop at the time of adoption had neither
renounced the world nor of unsound mind and also not ceased to be a hindu whereby the
consent of Honey was relevant for adoption.
The consent of wife envisaged in the proviso to section 7 should either be in writing or
reflected by an affirmative/positive act voluntarily and willingly done by her. If the adoption
by Hindu male becomes subject matter of challenge before the court, the party supporting
the adoption has to addice evidence to prove that the same was done with the consent of his
wife. This can be done either by producing document evidencing her consent in writing or
by leading evidence to show that the wife had actively participated in the ceremonies of
adoption with an affirmative mindset to support the action of husband to take a son or a
daughter in adoption; Ghisalal V Dhapubai1 and .

Hon'ble Supreme Court in Brijendra Singh vs. State of M.P. and anothe r2, has held that for a
valid adoption wife's consent must be obtained prior to adoption . Same was held too in
Bhoolaram Verses Ramlaal3

Here in the present case the consent given by the Appellant was neither in written nor reflected
by an affirmative/positive act voluntarily and willingly done by her ,since there is nothing
mentioned in the factsheet about the ceremonies participated by Honey which could reflect
the honey’s affirmative/positive act .As mentioned in the factsheet that the Appellant was
reluctantly agreed for the adoption which cannot be equated with positive consent or free
consent.

It is submitted that the Appellant was reluctantly agreed for the adoption of said Niti , thus
reluctantly agreeing to something would not be considered as consent.

 ABSENCE OF PERFORMANCE OF CEREMONIES

1
CIVIL APPEAL NOS. 6375 - 6376 OF 2002
2
Appeal (civil) 7764 of 2001
3
AIR 1989 MP 198
In Urmil A V. Hemanta4 it was held that the defendants father only wanted that he should be reared
up by sankar and sasi after her mother’s death and there had been no formal ceremony of adoption
were performed , thereby negativiting the adoption

It is also submits that there were no ceremonies performed for adoption . Thus Appellant was
also not impliedly consented for the adoption.

 NO CONSENT OF NATURAL MOTHER WAS TAKEN

According To Section 9(2) Of Hindu Adoption And Maintence Act , 1956the father or mother is
alive have equal rights to give their child in adoption, provided that such rights shall not be exercised
by either of them save with the consent of other.

Thus according to factsheet point 1 it is clearly shown that the Niti was given in adoption by her
father. Hence it states that the mother was neither present nor consented for giving her
daughter in adoption. It is also stated in fact that Niti was the third daughter of their biological
parents that means either the consent of mother was taken by coercion or under undue
influence of his husband and family.

In Bal Krishan Rastogi S/O Shyam ... Vs Dr. (Ms.) Reena Rastogi D/O Vijay ... on 10 November,
2004 the adoption must be with the consent of father and mother giving in the adoption

5
IN Madan Singh Vs Sham Kaur And Ors. On 30 November, 1971 it was held by them that the
alleged adoption was invalid in as much as no actual giving and taking of Modan Singh defendant
No.1 had taken place and also because the consent of his natural mother to the adoption had not been
obtained

 ABSENCE OF ADOPTION DEED

4
AIR 1993 ORI 213
5
AIR 1973 P H 122
In Narendrajeet Kaur Verses Union Of India6 it was held that adoption was valid when the process
of adoption is done through attorney.

According to section 6 (iv) of Hindu Adoption And Maintenance Act the adoption is made in
compliance with the other conditions mentioned in the chapter

 In Pathivada Rama Swai V Karoda Surya Prakasa Rao 7, it was held that court will presume
that the adoption has been made in compliance with the provision of the act whenever any document
registered under any law for the time being in force and is signed by the persons giving and taking
the child in adoption

In the present case there was no deed made and signed by both the parties (giver and taker) , so
it is assumed that the adoption was not made in compliance of the said act

Considering the all the facts and suggestions, the Swaroop was not validly adopted the child
thus it the adoption of Niti should be declared as void.

o CONSEQUENCES OF VALID ADOPTION

According To Section 5(2) Of Hindu Adoption And Maintenance Act 1956 an adoption which is
void shall neither create any right in the adoptive family in favor of any person which he or she could
not have acquired except by the reason of the adoption nor destroy the right of any person in the
family of his/her birth

Supporting case : Shri Chandra Nath Sadhu & Ors. Vs The State Of West Bengal &Ors8

ISSUE 2: WHETHER OR NOT THE KEVIN HAS THE SAME RIGHTS AVAILABLE TO A
NATURAL CHILD AS HE WAS BORN THROUGH SURROGACY.

6
AIR 1997 P&H 280
7
AIR 1993 AP 336
8
(2003) 3 CALLT 1 HC, I (2004) DMC 359
 2.1 Surrogacy- Its definition
 Black’s Law Dictionary, defines surrogacy as the process of carrying and delivering a child for
another person.
 The Britannica defines ‘surrogate motherhood’ as the practice in which a woman bears a child
for a couple unable to produce children in the usual way.
 AS PER THE INDIAN COUNCIL OF MEDICAL RESEARCHSurrogacy is an arrangement
in which a woman agrees to carry aPregnancy that is genetically unrelated to her and her husband,
with theIntention to carry it to term and hand over the child to the genetic parents for whom she is
acting as a surrogate9.
 Surrogacy arrangements can generally be divided into two types: traditional surrogacy and
gestational surrogacy

the Surrogacy being applicable in the instant case is Gestational Surrogacy:


o GESTATIONAL SURROGACY-

A gestational surrogate carries a child that is not genetically related to her. The embryo can be created
through the intended mother’s egg and intended father’s sperm using In Vitro Fertilization. The
intended mother’s egg is introduced to the intended father’s sperm, which results in the formation of
an embryo. It is then transferred to the gestational surrogate, who acts as a human incubator, gestating
the fetus and delivering the baby. A gestational surrogate is not considered the legal mother.

ARGUMENTS

IT IS SUBMITTED THAT THE CHILD BORN OUT THROUGH THE SURROGACY IN INDIA
IS CONSIDERED TO BE A LEGAL CHILD AND SHOULD GIVEN SAME RIGHT AN S
NATURAL CHILD HAS.

9
.1.2.33 National Guidelines For Accreditation , Supervision And Regulation Of Art Clinics In India
In Mr. Partha Pratim Roy Vs Mrs. Bibi Salma Aga
Since there is no specific legislation, which governs surrogacy, in India, however, there are
guidelines for ART clinics formulated by Indian Council of Medical Research/National Academy
of Medical Sciences (ICMR/NAMS) and a report of Law Commission of India being Report No
228 which are being used as guidelines for regulating Surrogacy in India.

(a) ARGUMENTS BASED ON LEGAL MOTHER OF THE SURROGATED CHILD ?

According toTHE INDIAN COUNCIL OF MEDICAL RESEARCH GUIDELINES

2005,

1. A surrogate mother cannot be genetically related to the child. She is legally and
psychologically counseled that she will not be having any rights over the child. Her rights and
obligations towards the intended parents as well the child are formulated in the gestational surrogacy
agreement.
2. The surrogate mother is not biologically connected to the child10.
3. The intended parents only would be the legal parents of the child with all the attendance rights,
parental responsibility etc11.
4. the surrogate mother shall not be the legal mother and the birth certificate shall be in the name
of the genetic parents12.
5. Provides that the surrogate mother shall relinquish in writing all the parental rights over the
child13.

In Rihannon Elizabeth Nixon V. Mrs Vimla DeviIt is stated that as of now, there is no specific
legislation/law which governs surrogacy in India, however, there are guidelines for ART Clinics
formulated by ICMR/NAMS (Indian Council of Medial Research/National Academy of Medical

10
Guideline 1.2.33 National Guidelines For Accreditation , Supervision And Regulation Of Art Clinics In India
11
Guidelines 3.10.1 And 3.16.1 National Guidelines For Accreditation , Supervision And Regulation Of Art Clinics
In India
12
Guideline 3.5.4 National Guidelines For Accreditation , Supervision And Regulation Of Art Clinics In India
13
Guideline 3.5.4 National Guidelines For Accreditation , Supervision And Regulation Of Art Clinics In India
Sciences) and report of Law Commission of India bearing no. 228 which are being used guidelines
for regulating surrogacy in India. It is stated that in India, according to National Guidelines for
Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by ICMR and NAMS,
the surrogate mother is not considered to be legal mother. It is stated that ICMR has come up with
Draft Assisted Reproductive CS No. 468/12 Page No. 4 of 15 Technology (Regulation) Bill & Rules,
2008. It is stated that it is further provided that commissioning parents or parent shall
be legally bound to accept custody of the child irrespective of any abnormality that the child may
have and refusal to do so shall be an offence. It is stated that a surrogate mother is under obligation
to relinquish all parental rights over the child.

IN Case Rama Pandeyvs Union Of India &OrsIt Is Said Thatthe commissioning mother continues
to remain the legal mother of the child, both during and after the pregnancy. To cite an example :
suppose on account of a disagreement between the surrogate mother and the commissioning
parents, the surrogate mother takes a unilateral decision to terminate the pregnancy, albeit within
the period permissible in law for termination of pregnancy - quite clearly, to my mind, the
commissioning parents would have a legal right to restrain the surrogate mother from taking any
such action which may be detrimental to the interest of the child. The legal basis for the court to
entertain such a plea would, in my view, be, amongst others, the fact that the commissioning
mother is the legal mother of the child. The basis for reaching such a conclusion is that,
surrogacy, is recognized as a lawful agreement in the eyes of law in this country.

It Is Also Reflected In The Case OfB a b y M a n j i Y a m a d a V . U n i o n O f I n d i a A n d

Another

Thus the Appellant lawfully submits that in India the lady who surrogates is not considered as
the legal mother. The Indian law recognizes the intended mother only as the legal mother in
surrogacy arrangements.

Applying the above in fact it is clearly proves that the Appellant (Honey) should consider as the
legal motherof the surrogated child Kevin.

(b) ARGUMENTS BASED ON LEGAL FATHER OF THE SURROGATED CHILD ?

It is submitted that theIndian law doesn’t put any bar on opting for donor sperm or eggs. In cases
where the child is biologically related to the intended father the intended father only would be the
legal father provided the child so born should not be biologically connected to the surrogate mother.

According to THE INDIAN COUNCIL OF MEDICAL RESEARCH GUIDELINES

2005

1. In such a scenario the donor egg should be used and the donor shall be bound to relinquish all
the parental rights over the child so born, thus making the intended father only as the legal father of
the child as per Indian law.14
2. A child born through art shall be presumed to be the legitimate child of the couple, having been
born in wedlock and with the consent of both the spouses. Therefore, the child shall have a legal right
to parental support, inheritance, and all other privileges of a child born to a couple through sexual
intercourse.15

IN Mr. Hassan Ezadichamkhorami vs. Mrs. RadhaIt is provided that the commissioning parents
or parents or parent shall be legally bound to accept the custody of the child irrespective of any
abnormality that the child may have, and the refusal to do so shall constitute an offence. A
surrogate mother in under obligation to relinquish all parental rights over the child.

IN Dr. Normann Witzleb Vs Jyotshana Mandal & Anr. It was agreed specifically, for all intents
and purposes, that the plaintiff/intended father shall be the legal father and natural guardian of the
child

The same has observed inMr. Parthapratim Roy Vs Mrs. Santoshi

Thus The Appellant Lawfully Submits That The Indian Law Recognizes The Intended Father
Only As The Legal Mother In Surrogacy Arrangements.

14
Guideline 3.5.5
15
3.12.1(The Indian Council Of Medical Research)
Applying The Above In Fact It Is Clearly Proves That The Swaroop, The Husband Of
Appellant (Honey) Should Consider As The Legal Father Of The Surrogated Child Kevin.

ARGUMENTS BASED ON LEGITIMACY OF SURROGATE CHILD

Moreover, a child born through surrogacy shall be presumed to be the legitimate child of the intended
parents/s and shall have all the legal rights to parental support, inheritance and all other privileges
which a child born naturally to the intended parents/s would have had16.

In Dr. Normann Witzleb Vs Jyotshana Mandal Legitimacy of the child born through ART - A child
born through ART shall be presumed to be the legitimate child of the couple

CONSIDERING ALL ABOVE FACTS AND SUGGESTION AND REFERRING TO THE

FACTSHEET It Is Clearly Mentioned In The Facts Of The KevinWas Conceived With
Honey’s Egg And Swaroop’s Sperm Wherewith It Is Crystal Clear That The Child Was Of
Their Own Genes And Thereby SwaroopAnd HoneyAre The Genetic Or Biological Parents Of
The Child Kevin.

By Virtue Of This KevinShould Be Considered As A Natural Born Child And Has The Same
Rights Available To A Natural Born Child.

Prayer

The counsels for the Appellant humbly submits before the hon’ble court

Wherefore, in the light of the issues raised, arguments advanced, reasons given and authorities cited,
this hon’ble court may be pleased to:

16
3.16.1(The Indian Council Of Medical Research) Legitimacy Of The Child Born Through Art
Hold that the adoption of Niti is not valid and thereby she is not entitled to any share in the property
of Swaroop.

Hold, that Kevin as a surrogate child has right in the property of Swaroop as natural child has.. And
thereby uphold the decision of the sessions court was not valid .

And any other relief that this hon’ble court may be pleased to grant in the interests of JUSTICE,
EQUITY AND GOOD CONSCIENCE.

ALL OF THIS IS RESPECTFULLY

SUBMITTED AND FOR THIS THE

APPELLANT SHALL FOREVER PRAY

COUNSELS FOR THE APPELLANT