DELHI HIGH COURT, 4TH OCTOBER, 2023 – The Delhi High Court, presided over by Hon’ble Mr. Justice Suresh Kumar Kait and Hon’ble Ms. Justice Neena Bansal Krishna, delivered a judgment in a case that addressed a husband’s plea for surrogacy while divorce proceedings were underway.
In the said case, the husband had filed an appeal under Section 19(1) of the Family Courts Act, 1984, challenging an order dated May 31, 2022 of the Family Court. This order had rejected his application in which he sought directions for his wife to issue a “No Objection Certificate” (NOC) for him to have a child through surrogacy.
The background of the case involved Akhilesh filing a divorce petition on grounds of cruelty under Section 13 (1)(ia) of the Hindu Marriage Act, 1955, in 2022. During the course of the divorce proceedings, he filed an application under Section 151 CPC, citing his age of 54 and expressing concerns about his ability to fulfill fatherly duties due to his advancing age. He claimed that surrogacy was his only option to continue his family line, but it was dependent on wife’s cooperation in issuing the NOC.
The wife contested husband’s claim, stating that she had already cooperated with him for in-vitro fertilization (IVF), which husband disputed. The Family Court dismissed husband’s application, citing the absence of provisions that allowed them to grant the request.
The Delhi High Court examined the case in the context of the Surrogacy (Regulation) Act, 2021, which was amended in 2023. According to the Act, surrogacy involves handing over the child to an “intending couple.” The Act defines a couple as a legally married Indian man and woman above the age of 21 and 18, respectively.
The High Court noted that the husband in the present case, who was seeking a divorce from his wife, couldn’t convincingly establish his intent to pursue surrogacy during the marriage. This could lead to complications not only between the couple but also concerning the child.
The Surrogacy Act outlines detailed procedures for surrogacy, including the requirement of a “Certificate of Recommendation” for medical indications necessitating gestational surrogacy.
In the present case, the Court found no compelling reason for him to seek surrogacy during the ongoing divorce proceedings, particularly without adhering to the procedures outlined in the Surrogacy Act. Therefore, the appeal was dismissed.
This judgment underscores the importance of following legal procedures and considerations in cases involving surrogacy and divorce, contributing to a more comprehensive understanding of such matters in legal practice.
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