Team code:TC20

6th INTRA DEPARTMENT MOOT COURT COMPETITION 2024

District and Session court of Jaipur

KRITI

vs

MR. AVIRAJ CHAUDHARY AND MRS. AVIRAJ CHAUDHARY.(RESPONDENT)

&

SAMEER CHAUDHARY AND MUSKAN CHAUDHARY (RESPONDENT)

UNDER RULES AND REGULATIONS OF 2002 AND ICMR GUIDELINES IN 2005

UPONSUBMISSIONTOTHEHONBLE DISTRICTJUSTICE

ANDHISCOMPANIONJUSTICEOF DISTRICT COURTOF JAIPUR

MEMORIAL ON BEHALF OF THE RESPONDENT

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Table of Contents

SERIAL CONTENTS PAGE

NUMBER NAME NUMBER

1. 4
Index of authorities
Table of cases
Website
Rules regulation and reports
Statutes
2. Statement of jurisdiction 5
3. Statement of Facts 6-7
4. Summary of arguments 9-10
5. Arguments advanced
6. Issue 1: Is the case maintainable before
the district court or session court

7. Issue 2: Can the surrogacy agreement

be enforced despite the unforeseen
death of the intended parents and is
kriti entitled to any parental rights?

8. Issue 3: Who holds the legal custody of

the child born out of the surrogacy.

9.
Issue 4: Is kriti entitled to
compensation?

10. Issue 5: could the child born out of

surrogacy agreement be considered a
potential heir of the chaudhary’s
estate?
Does the grandfather verbal intent
hold any legal weight?
11. Issue 6: Does the grandfather verbal
intent hold any legal weight?
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INDEX OF AUTHORITIES

TABLE OF CASES

1. Baby manjhi yamda vs union of india and anr 2008

2. Veena kapoor vs verinder kumar
3. Robinson vs davison
4. Jan balas vs ananad municipality
5. Balvant singh case

WEBSITES:

http://www.scconline.com
http://www.findlaw.com
http://www.judis.nic.in
http://www.indiankanoon.com
http://www.ipleaders.com
http://www.icmr.nic.in
http://prsindia.com

RULES, REGULATIONS & REPORTS:

228th law commission report

Universal declaration of human right commission provisions

129th standing committee report

Indian council of medical research guidelines

Law commission report

STATUTES:

Indian contract act,1872

Specific relief act,1963

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STATEMENT OF JURISDICTION

The Hon’ble Court has the jurisdiction to try the instant matter under section 9 of the code of
civi l procedure. Under Section 10 of the Contract Act, all agreements are contracts, if they are
made by free consent of parties competent to contract, for a lawful consideration and with a
lawful object and are not expressly declared to be void. Therefore, if any surrogacy agreement
satisfies these conditions, it is an enforceable contract. Thereafter, under section 9, CPC, it can
be the subject of a civil suit before a civil court for adjudication of all disputes relating to the
surrogacy agreement and for a declaration/injunction as to the relief prayed for.
 5

STATEMENT OF FACTS

TOTAL FACTS OF THE CASE-

1. Mr. Aviraj Chaudhary, 38 years old, is a resident of Jaipur city. He got married tohis wife
Piya, 36 years old, six years ago. Both the husband and wife work as software engineers at a
renowned MNC called “TAC lab”. They used to reside with Aviraj’s parents, his brother and
sister in law.

2. In their six years of happy marriage, they faced a major issue of infertility and related medical
problems. Since after years of trying for a baby, they could not conceive, they were advised by
Aviraj’s younger brother and sister in law, Sameer and Muskan to opt surrogacy. After
extensive consideration and legal consultation, they opted for surrogacy as a away to build their
family.

3. Aviraj’s father though an orthodox man, at first opposed the idea of surrogating a child,
but eventually agreed upon it.Piya was always fascinated by the fact that her in laws adored
and
liked Sameer and Muskan’s son, a four year old. She used to express her wish to see their child
receive the same love from the family.

4. Kriti’s sister, who is a house help at Piya’s home since a long time, was the one who
introduced Kriti to Piya, insisting the former to act as a surrogate for Aviraj and Piya, in return
to get financial help from them. Kriti Singh, a 28 year old married woman from a nearby village
with two children of her own, went under thorough medical and psychological screenings and
was deemed as a suitable surrogate.

5. Aviraj and Piya, entered into a detailed surrogacy agreement on 4th August 2021, with
Kriti. The agreement outlined Kriti’s role, prenatal care, compensation of Rupees 5 lakh and
Aviraj and Piya Chaudhary’s exclusive parental rights upon the child’s birth.The agreement
also specified that all the medical decisions during the pregnancy would rest with the
intending couple.The agreement mentioned that in case of failure of payments of
 6
compensation amount, within a year after baby’s birth the amount would double in its price.
The surrogacy procedure
 7

was successful.

6. With deteriorating health of Aviraj’s father, he expressed his intention to thefamily in the
presence of all the servants and house helps, of making a will totransfer his property amongst
his grandchildren, once Aviraj’s child is born.

7. However in the beginning of the ninth month of pregnancy, Aviraj and Piyavisited Kriti, to
check on her. On their way back home, they got into a tragic caraccident, as a result of which,
they lost their lives. The whole family, as a result ofthis huge loss, went through a hard time.
They incident left Kriti in distress.However, she continued to take care of herself to conceive
a healthy baby. InJune 2022, Kriti gave birth to a healthy baby girl. The information of the
birth wasgiven to the family.

8. Since even after two weeks, nobody showed up to Kriti from the Chaudhary's she herself took
the child to the family, for handling them over the custody of thechild, and for taking her
compensation money. To her surprise, the familydisagreed upon this idea. They abused Kriti
and called the birth of the girlunfortunate. Aviraj’s father expressed his gloom on the birth of a
girl child. Theyforced Kriti and the baby out of the house.

9. Disheartened and confused, Kriti went back but in due intervals she wouldreach out to the
family and convince them to take the child. After severalattempts, in October, the family finally
agreed upon taking the child, but only onthe condition of doing the same after a span of 3
months, as the child neededbreastfeeding. Even after the given time span, the family didn’t
reach out and so,by the end of April, Kriti contacted the family again, upon which they insisted
Kritikeep the child with her. Kriti did not respond to it.

10. The agreement between Aviraj and Piya, and Kriti did not have a designated legal guardian
for the unborn child. Therefore, in July Kriti filed a case against theChaudhary's in concern to
the child’s custody and compensation, enforceabilityto the agreement and additionally, for the
double of the compensatory amount tobe paid.The matter is pending before district and
sessions court.
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STATEMENT OF ISSUES

 ISSUE-1
 Is the case maintainable before the session court or district court

 ISSUE-2
 Can the surrogacy agreement be enforced despite the unforeseen death of the intended
parents and is Kriti entitled to any parental rights
 ISSUE-3
 Who holds the legal custody of the child born out of the surrogacy agreement.
 ISSUE-4
 Is kriti entitled to compensation?

 ISSUE-5
 Could the child born out of surrogacy agreement be considered a potential heir of the
Chaudhary’s estate.

 ISSUE-6
 Does the grand fathers verbal intend hold any legal weight
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SUMMARYOFARGUMENTS

ISSUE I: Is the case maintainable before session and District court?

It is humbly submitted before Hon’ble court that under section 9, CPC, it can be the subject
of a civil suit before a civil court for adjudication of all disputes relating to the surrogacy
agreement and for a declaration/injunction as to the relief prayed for.

ISSUE II: Can the surrogacy agreement be enforced despite unforeseen death of the
intended parents and is kriti entitled to any parental rights.
The agreement is not at all enforceable in court of law as it doesn't include lawful consideration
as well as contract is made against the morality and public policy and if we apply doctrine of
frustration too in this concept then with the death of Aviraj and piya the agreement itself get
frustrated by section 56,ICA,1872. Kriti is entitle to parental rights as motherhood is not for sale
and she carries the child in her womb..

ISSUE III: Who holds the legal custody of the child born out of the surrogacy agreement.

From the above facts we can conclude that this surrogacy agreement cover under Indain
Contract Act 1872 under section 10 and section 23 it does not fulfill the conditions and
according to the surrogacy regulation bill 2016 it provides the closed relation but it does not
define the close relation so it is on the discreation upon the court to decide the legal
guardianship of that child

ISSUE VI: Does the grandfather's verbal intent hold any legal weight.

From the above facts we can conclude that this agreement cover under Indian Contract Act 1872
under which it does not fulfill the conditions of section 10 and section 23 and according to
according to surrogacy regulation act 2016 commercial surrogacy is ban hence she is not entitled
to any compensation
 1
0

ISSUE V: Could the child born out of surrogacy agreement be considered a potential
heir of the Chaudhary’s estate.

Surrogated child is in this case is not entitle to inherit any of the property as the agreement
between them was itself null and void because it comprises of points which is against public
policy and morality and also there is unlawful consideration.

ISSUE IV: Is kriti entitled to compensation?

Verbal intent doesn't have any legal weightage as for making a will a declaration with intention
to dissolve the property is needed and only the intention cannot result in transfer of property and
doesn't hold any legal weightage
 ARGUMENTSADVANCED

ISSUE1: Is the case maintainable before the session court or district court

It is maintaianble under district court because surrogacy agreements are civil in nature and to
determine the validity of surrogacy agreements are governed under the Indian Contract Act
1872 and ICA is civil in nature thereafter the enforceability of any such agreement would be
within the domain of section 9 of code of civil procedure(CPC) and according to 228 Law
Commission Report Sec9 says that Courts to try all civil suits unless barred.—The Courts
shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or impliedly barred.
[Explanation I].—A suit in which the right to property or to an office is contested is a suit of
a civil nature, notwithstanding that such right may depend entirely on the decision of
questions as to religious rites or ceremonies.
[Explanation II].—For the purposes of this section, it is immaterial whether or not any fees
are attached to the office referred to in Explanation I or whether or not such office is
attached to a particular place.Assisted Reproductive Technology Regulation Bill, 2008-
Surrogacy agreements were to be considered like other legal contracts in order to be legally
enforceable under the Bill, which basically meant that the terms of the 1872 "Indian
Contract Act" applied to Surrogacy arrangements..

ISSUE 2: Can the surrogacy agreement be enforced despite the unforeseen death of the
intended parents and is kriti entitled to any parental rights.

The agreement is unenforceable as per the section 56 of Indian contract act ,1872 ;there are
mainly 5 essential of a valid contract that it must have
I) offer,acceptance and a intention to enter into a legal relation
II) competent to make a contract i.e. party must be major,sound mind,not disqualified by law
.(S.11)
III) free consent (S.14)
IV) Lawful consideration and lawful object (s.23)
V) terms must be clear and certain (s.29)
VI) it must be capable of being performed (S.56)
And if we see ,the agreement made between aviraj,piya &kriti doesn't include the lawful
consideration as kriti rented her womb just to get financial help which immoral and against
the public policy too as motherhood is not for sale ,
And it is clearly mentioned in that of section 23 of ICA 1872 ,that any agreement is against
morality or public policy it is void .And the unforeseen death of the intended couple results
in the frustration of contract given under S.56 of ICA,1872 states that - Agreement to do
impossible act. Contract to do an act afterwards becoming impossible or unlawful.
Compensation for loss through non-performance of act known to be impossible or unlawful.
Atkie vs Ritchie(1809) :- it was held that loading of a British shop on a foreign port is
impossible due to outbreak of war between 2 countries and hence contract is frustrated .
Kriti is entitled to parental rights though she was the surrogate mother but carry the child in
her own womb for 9 months .And the 228th law commission report recommended the
prohibition of commercial surrogacy in india and it was also by a bill Commercial surrogacy
was banned in India in the year 2015 due to some of its negative consequences on society,
surrogate mothers, and intending parents and also due to the rise of foreigners coming to
India just to get a child through surrogacy due to low costs. Some of the reasons for its ban
was the commodification of the body and the child (it was available in markets at low prices
for sale) where both the surrogate as well as the child were treated as commodities and were
sold at very low prices, payment for the child, payment for reproductive labor, gender
exploitation, human trafficking, health risks, insufficient compensation, degradation of the
morality of women, etc.
ISSUE 3: Who holds the legal custody of the child born out of the surrogacy
agreement.

According to Indian Contract Act 1872, we clearly find that this surrogacy agreement is not
valid under section 10 and section 23 of ICA 1872.In India, according to 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), the surrogate mother is not considered to be the legal mother. According
to the Surrogacy Regulation Bill 2016 The Bill specifies various conditions that need to be
fulfilled by a surrogate mother in order to be eligible for a surrogacy procedure.One of the
conditions to be proved is that the surrogate mother is a ‘close relative’ of the intending
couple who commission the surrogacy. However, the Bill does not specify who will be a
‘close relative’. As we know from the above facts that kriti is the sisiter of piya's maid
despite it does not define close relative we can conclude that kriti does not come under the
close relative.Though the surrogacy agreement is not valid but child is born now so it is
upon the discreation of the court to find the legal guardianship for the welfare of the child

ISSUE 4: Is kriti entitled to compensation?

Kriti is not entitled to compensation because from 2015 onwards commercial surrogacy is
ban in india and agreement made between the parties is not valid because it does not fulfill
the conditions given under Sec 10 of Indian Contract Act 1872 which states that What
agreements are contracts.—All agreements are contracts if they are made by the free
consent of parties competent to contract, for a lawful consideration and with a lawful object,
and are not hereby expressly declared to be void.Nothing herein contained shall affect any
law in force in 1 [India] and not hereby expressly repealed .by which any contract is
required to be made in writing or in the presence of witnesses, or any law relating to the
registration of documents. And if we look upon section 23 of ICA 1872 What
considerations and objects are lawful, and what not.—The consideration or object of an
agreement is lawful, unless— it is forbidden by law; or is of such a nature that if permitted,
it would defeat the provisions of any law; or is fraudulent ; or involves or implies injury to
the person or property of
another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful.
Every agreement of which the object or consideration is unlawful is void. So, Same here in
the case of kriti vs chaudhary's family we can clearly see that the consideration was made for
something that is against the public policy and moral value as motherhood is not for sale so
the itself is null and void and hence kriti is not entitle for any compensation

ISSUE 5:Could the child born out of surrogacy agreement be considered a potential
heir of the chaudhary’s estate

Surrogated child is not entitle to inherit any of the property as the agreement between aviraj
,Piya &kriti is void as the agreement become frustrated with the death of the party involved
as per the section 56 of Indian contract act ,1872 states that agreements to perform an
impossible act are void.
As well , the agreement made between them doesn't hold any legality as it doesn't involve
any lawful consideration and it is against the public policy and morality defined under
section 23 which states states that the consideration or object of an agreement is unlawful if
it is fraudulent, violates public policy, or is against law.

ISSUE 6: Does the grandfather’s verbal intent hold any legal weight.

The verbal intent in the context of this case doesn't have any legal weightage as for making
a will person's intention to dissolve his property must be in a declaration i.e. in a written
format and only the verbal intent doesn't show any legal weightage .Like in the balwant Rai
case ,a person was travelling on a train in which he felt that he is going to die and made a
will on peel of egg found during postmortem which states that he want to transfer his
property to his servant and the intent and declaration made on peel was held enforceable.
So if we see on this case , the intend was there but there was no declaration made in writing
and without that there is no legal weightage of the verbal intent
 PRAYER

Wherefore, in the light of issue raised, authorities cited and arguments advanced , it
Prayed that this hon’ble court may graciously pleased to;
1 .Not Enforce the agreement.
2. Respondent is not the legal guardian
3. Respondent is not entitled to give any amount of compensation..

All of which is most humbly and respectfully submitted.

And for this act of kindness the petitioner as in duty bound shall ever pray .