Name : Pruthviraj shivaji misal

Year : 5/5
Class : BLS/LLB
Sem : X
Seat no:55029
Subject: Practical training IV

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 NALANDA LAW COLLEGE MOOT COURT 2022

BEFORE THE HON’BLE HIGH COURT, DELHI

(CIVIL APPELLATE JURISDICTION)

SAMANTHA Appellant

Vs

ASHOK LAL Respondent

MEMORIAL ON BEHALF OF THE APPELLANT

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 TABLE OF CONTENTS

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

STATEMENT OF FACTS………………………………………………………………………5

ISSUES ……………………………………………………………………………………………….7

ARGUMENTS ADVANCED…..……………………………………………………………….8

PRAYER………………………………………………………………………………………………15

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 INDEX OF AUTHORITIES
CASES CITED
Brijendra Singh vs. State of M.P. and another

Urmil A Vs. Hemanta’

Madan Singh Vs Sham Kaur And Ors. On 30 November, 1971

Narendrajeet Kaur Vs Union Of India”

Dr. Normann Witzleb Vs Jyotshana Mandal

LEGAL DATABASES
http://www.manupatra.co.in
http://www.seconline.com

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

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 STATEMENT OF FACTS

1. Yash, a Hindu and Ms. Samantha, a Christian married in April, 2003

under Special Marriage Act, 1954. As they did not have any child till 2006,
Yash proposed to adopt a girl child who was one year old, in January 2007.
The adopted girl child was none other than Yash’s own sister’s daughter,
who was already having two daughters and Samantha reluctantly agreed to
it. The girl was given in adoption by her natural father to Yash. The child
was named “Roohi”.
2. Post-adoption, Samantha 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. David in Delhi a surrogacy agreement was entered
into with Ms. Kajal and they got a surrogated boy child, born on 1st
September, 2008.
3. Samantha wanted to name the child as Ashley and Yash wanted to name
him as Rishi, the naming ritual was postponed for some time.
Unfortunately Mr. Yash was involved in an accident and died on
15thOctober, 2008. Samantha started calling the child as Ashley and got
the name registered as Ashley on the birth certificate.
4. When Yash’s father, Ashok Lal, expressed that Roohi was entitled to a
share in the property of Yash, Samantha and her father replied that the said
adoption was not valid as Samantha was a Christian who could not adopt
under Christian law and hence Roohi would not get any share in Yash’s
property.
5. Yash’s father filed a suit on behalf of his granddaughter, Roohi, for a
share in Yash’s property in the District Court and for a declaration that
Ashley is not entitled to any share in his father’s property as he is neither
the natural or adopted son of Yash.
6. The court through its order dated 1st April, 2009 held that there was a
valid adoption and the adopted child, Roohi, would be entitled to a share in
Yash’s property as Yash 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.

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7. The District Court further refused to declare that Ashley was entitled to a
share in Yash’s property. Samantha 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, Yash had
lost his right of adoption as a Hindu.
8. She also has requested the Court to declare that Ashley has the same
rights available to a natural born child as he was conceived with Samantha’s
egg and Yash’s sperm.

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 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 ROOHI'S ADOPTION VALID

ISSUE 2

❖ WHETHER OR NOT ASHLEY HAS THE SAME RIGHTS AVAILABLE

TO A NATURAL BORN CHILD AS HE WAS BORN THROUGH
SURROGACY

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 ARGUMENTS ADVANCED

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

HOLDING ROOHI’S ADOPTION VALID

1.1 CHALLENGING THE VALIDITY OF THE ADOPTION OF ROHI 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 Yash 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 Yash governed under Hindu adoption and maintenance
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.

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As per this provision, Samantha, the living wife of Yash 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 Samantha 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.
Hon’ble Supreme Court in Brijendra Singh vs. State of M.P. and another, has held
that for a valid adoption wife’s consent must be obtained prior to adoption.
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 Samantha which could reflect. The samantha’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
Roohi, thus reluctantly agreeing to something would not be considered as
consent.

❖ ABSENCE OF PERFORMANCE OF CEREMONIES

In Urmil A V. Hemanta’ 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.

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It is also submits that there were no ceremonies performed for adoption. Thus
Appellant 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, 1956 if the
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 I it is clearly shown that the Roohi 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
Roohi was the third daughter of their biological Parents that means either the
consent of mother was taken by coercion or under undue Influence of her
husband and family.
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. I had taken place and also because the
consent of his natural mother to the adoption had not been obtained

❖ ABSENCE OF ADOPTION DEED

In Narendrajeet Kaur Verses Union Of India” 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 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
yash was not validly adopted the child Thus it the adoption of roohi should
be declared as void.

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❖ 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.

ISSUE 2: WHETHER OR NOT THE ASHLEY HAS THE SAME RIGHTS

AVAILABLE TO A NATURAL CHILD AS HE WAS BORN THROUGH
SURROGACY.

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 RESEARCH Surrogacy is an

arrangement in which a woman agrees to carry a Pregnancy that is
genetically unrelated to her and her husband,With the Intention to carry it
to term and hand over the child to the genetic parents for whom she is
acting as a surrogate”.

Surrogacy arrangements can generally be divided into two types: traditional

surrogacy.
The Surrogacy being applicable in the instant case is Gestational Surrogacy:

GESTATIONAL SURROGACY

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A gestational surrogate carries a child that is not genetically related to her.
The embryo can be created through the intended mother’s egg an 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.

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

According to THE 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 child”.

3. The intended parents only would be the legal parents of the child with all
the attendance rights, parental responsibility etc.

4. the surrogate mother shall not be the legal mother and the birth
certificate shall be in the name Of the genetic parents.

5. Provides that the surrogate mother shall relinquish in writing all the
parental rights over the Child.

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 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 (Samantha)
should consider as the legal mother of the surrogated child Ashley.

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

It is submitted that the Indian 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 bom, thus making the
intended father only as the legal father of the child as per Indian law
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.
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.
Thus The Appellant Lawfully Submits That The Indian Law Recognizes The
Intended Father Only As The Legal Mother In Surrogacy Arrangements..
Applying The Above In Fact It Is Clearly Proves That The Yash, The Husband of
Appellant (Samantha) Should Consider As The Legal Father Of The Surrogated
Child Ashley.

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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 had.
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 Ashley Was Conceived
With Samantha’s Egg And Yash’s Sperm Wherewith It Is Crystal Clear That The
Child Was Of Their Own Genes And Thereby Yash and Samantha Are The
Genetic Or Biological Parents Of The Child Ashley.
By Virtue Of This ashley Should Be Considered As A Natural Born Child And Has
The Same Rights Available To A Natural Born Child.

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 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the
counsel for the appellant humbly prays that the Hon’ble Court be pleased to
adjudge, hold and declare:
1. The adoption of Roohi is not valid and thereby she is not entitled to any
share in the property Of Yash.
2. Ashley as a surrogate child has right in the property of Yash 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.

APPELLANT

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