\ TEAM CODE: TC

IN THE SUPREME COURT OF PERUCIA

Appeal under Article 134A read with Article 133(1) of the Constitution of
Perucia

In the matter of

Abram ……………………………… PETITIONER

V.

Shashwat ………………………………. RESPONDANT

Most respectfully submitted before the Hon’ble Supreme Court of Perucia

MEMORANDUM ON THE BEHALF OF THE RESPONDANT

 TABLE OF CONTENT

List of Abbreviations…………………………………………………3
Index of Authorities………………………………………………… 4
Statement of Jurisdiction…………………………………………….5
Statement of Facts……………………………………………………6
Issues Raised………………………………………………………….8
Summary of Arguments……………………………………………...9
Arguments Advanced……………………………………………....... 11
Prayer………………………………………………………………… 30
LIST OF ABBREVIATION

ABBREVIATIONS EXPANSION
Sec. Section

¶ Paragraph

& And

AIR All India Reporter

SC Supreme Court

v. Verses

Cri.LJ Criminal law journal

Ors Others

IPC Indica Penal Code,1860

HC High Court

Hon’ble Honourable

CONSTI.       Constitution

Acc According

p. Page No.

r.w.s. Read with Section

SCC Supreme Court Cases

ICA Indian Contract Act,1872

INDEX OF AUTHORITIES
 STATUTES REFERRED
1. Constitution on India
2. Indian Contract Act, 1872
3. Surrogacy (Regulation) Act, 2021
4. Hindu Adoption and Maintenance Act, 1956
5. Mohemmedan personal Law
6. Juvenile Justice ( Care and Protection of children) Act,2000
BOOKS REFERRED
1. Constitution of India- M.P. Jain, Narender Kumar, V.N. Shukla
2. Indian Contract Act, 1872- S.R Mayeni, Avtar Singh
3. Surrogacy (Regulation) Act, 2021- Bare Act
4. Hindu Adoption and Maintenance Act, 1956- Dr. Paras Diwan
5. Mohemmedan personal Law
6. Juvenile Justice ( Care and Protection of children) Act,2000- S.N. Mishra

ONLINE SOURCE

1. SCC online
2. Manupatra

STATEMENT OF JURISDICTION
THE HON’BIE SUPREME COURT EXERCISES JURISDICTION TO HEAR AND
ADJUDICATE OVER THE MATTER UNDER ARTICLE 134A READ WITH ARTICLE
133(1) OF THE CONSTTUTION OF PERUCIA.1

STATEMENT OF FACTS

Mr. & Mrs. Chopra, a married couple (aged 38 & 37 resp.), registered under the SMA, 1954,
belonged to a reputed industrial family, and are eminent on social media for their philanthropic
activities. The couple found that they were not capable of conception, owing to infertility. Even

1
134A. Certificate for appeal to the Supreme Court Every High Court, passing or making a judgment, decree, final
order, or sentence, referred to in clause ( 1 ) of Article 132 or clause ( 1 ) of Article 133, or clause ( 1 ) of Article 134
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or
making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or
making, the question whether a certificate of the nature referred to in clause ( 1 ) of Article 132, or clause ( 1 ) of
Article 133 or, as the case may be, sub clause (c) of clause ( 1 ) of Article 134, may be given in respect of that case

133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High
Court in the territory of India if the High Court certifies under Article 134A
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court
the doctors had given a certificate regarding their inability to conceive, along with an indication
necessitating gestational surrogacy and suggested them to visit an ART clinic for obtaining a
child through surrogacy.

Being further informed about the changes brought about in The Surrogacy (Regulation) Act,
2021, the couple approached respective blood relatives of their sides of the family to convince
them to act as a surrogate mother. However, women on both sides of the family refused to carry
the couple’s child in their womb. The couple approached the ART clinic of the EBC Hospital,
whereby after executing a Non- Disclosure and Confidentiality Agreement, an appointment was
booked with the leading doctor in the field, Dr. Goswami. After being informed of the
advantages and side effects of the procedure, the couple was convinced that getting a child
through surrogacy is safe and effective procedure.

After one week of the said approval, EBS Hospital found a potential candidate in Ms. Khan, a
widow, aged about 32 years, was already a mother to a 3- year-old daughter. She was soon
approached by Dr. Goswami requesting her to carry Mr. Chopra’s surrogate child. After
deliberation and owing her to financial crunch, Ms. Khan accepted the offer and was willing to
carry the child. Soon, the couple was informed and they willingly accepted Ms. Khan to be the
surrogate mother. Thereafter they applied for a certificate of recommendation under sec.4 of the
Surrogacy (Regulation) Act,2021 which was duly granted to them by the board.

The terms and conditions for the contract were negotiated, upon, and finally the couple agreed to
compensate. An agreement was signed between the intending parents and the surrogate mother
with the terms and conditions mentioned in the agreement and duly registered with the office of
registrar.

Soon after the procedure, Ms. Khan conceived, and the intending parents were informed about
the good news. Ms. Khan took note of all the conditions mentioned in the contract and she was
more careful.
In the latter half of the seventh month of pregnancy, Ms. Khan started feeling emotionally
attached to the child. The idea that she would have to surrender the child started creating a sense
of fear within her and she started keeping anxious but she behaved normal. However, one fine
day, during the pregnancy, the couple hailed their fate after they naturally conceived a child.
When this information reached to Ms. Khan, her feelings for the child within her grew even
more.

In the last week of the eight month of the pregnancy, Ms. Khan had certainly decided to write a
letter informing the hospital and the intending parents about her disappearance and sent the letter
by post to the intending couple and Dr. Goswami.

Shocked upon receiving the letter, the couple personally searched for Ms. Khan’s whereabouts
for a few weeks, but to no avail. However, they did not approach authorities for help in the
search, because they did not want their infertility and surrogacy issues to be revealed in public.
Nobody could trace Ms. Khan. The couple soon accepted that this was part of their fate and
discontinued their search.

Thereafter both the child, Shashwat (natural child) and Abram (surrogate child by Ms. Khan)
were born. To fulfill his dreams, Abram got admission in Cati. While packing for his shift to the
Perucia Institute of Technology, Cati he came across a copy of the contact between Mr. & Ms.
Chopra and Ms. Khan and realized that Chopra’s were his biological parents.

Abram soon reached the residence of Chopra’s; he was informed that the couple had died
intestate and all the property belonged to their natural child, Shashwat. In absence of his parents,
he staked a claim in Mr. Chopra’s properties as a successor based on the clauses of the surrogate
contract before shashwat and shashwat showed the letter written by Ms. Khan seeking the
adoption of Abram and based on the same, rejected Abram’s claim.

Left with no other choice, Abram, with the help of his advocate filed a civil suit in the District
court of Cati, seeking declaration that all the self-acquired property of his parents belonged to
him and sought their possession. Where the court ruled in the favour of Abram. Highly aggrieved
by the order, Shashwat appealed in the High Court of Cati, which overturned the civil court’s
order.

ISSUES RAISED

ISSUE(A). WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE SUPREME

COURT OF PERUICA?
ISSUE(B). WHETHER THE SURROGACY CONTRACT WAS VALID BETWEEN Mr. &
Ms. CHOPRA AND Ms. KHAN UNDER THE SURROGACY (REGULATION)
ACT, 2021?

ISSUE (C ). WHETHER ABRAM STOOD ADOPTED BY Ms. KHAN?

ISSUE (D). WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF THE
CHOPRA’S?

SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE SUPREME
COURT OF PERUCIA?
It is humbly submitted before the hon’ble court that the present appeal is not maintainable before
the SC of Perucia. In its present form as the present appeal do not involve any substantial
question of law of general importance as well as the question of fact and the same is likely to be
dismissed on this sole ground. It is further submitted that there is no cause of action arises in
favour of the appellant and the appellant is stopped by his own acts and conduct to claim the
relief as prayed far and is not authorized to file the present appeal and the same is liable to be
dismissed with cost.

ISSUE 2: WHETHER THE SURROGACY CONTRACT WAS VALID BETWEEN MR. &
MRS. CHOPRA & MS. KHAN UNDER THE SURROGACY (REGULATION) ACT,2021?

It is humbly submitted before the hon’ble court that the contract between Mr. & Mrs. Chopra and
Ms. Khan was not valid. It is further submitted that In the Indian context, owing to lack of
legislative clarity on the state’s position on Surrogacy Contracts, it becomes essential to
understand the scope of enforceability of surrogacy contracts concerning the Indian Contract
Act, 1872.Further it is submitted that a surrogacy contract may be defined as a mutual agreement
between the intending couple and the surrogate mother which denotes the need for ART of
surrogacy and other rights and duties of both the parties. Further the contact lays foundation and
governs the whole procedure of surrogacy. It considers the interests of both parties and avoids
any kind of conflict or exploitation. In the present case, the contract was not an altruistic contract
but a commercial contract. The parties have not met the essentials of the Surrogacy (Regulation)
Act, 2021.It is submitted that though altruistic surrogacy contracts are necessary, there is no law
that explicitly provides for the validity and enforceability of surrogacy contracts. Further it is
submitted that all Ms. Khan had medium income in Cati and to raise her daughter and for other
necessities, there was a need of good income. It is submitted that the Chopra’s promised her
through the way of surrogacy contract that they will be paying for Alia’s (daughter of Ms. Khan)
education till her graduation. This promised made the contract commercial in nature and thus
invalid.

ISSUE 3: WHETHER ABRAM STOOD ADOPTED BY MS. KHAN?

It is submitted before the hon’ble court that Abram stands adopted by Ms. Khan as the contract
was not a valid contract but a voidable contract that means that Ms. Khan at anytime can
terminate or rescind the contract at her will.It is humbly submitted that right to a child to be
adopted and that of the prospective parents to adopt is declared a fundamental right under Art.21
of the Constitution of Perucia. Therefore it is contended that Muslim Law recognizes adoption
and the contract was terminated by the will of the parties and Abram stood adopted by Ms. Khan
by implied permission from the Chopra’s, as they made no endeavour to search or Ms. Khan by
approaching the authorities and lodging FIR, etc.

ISSUE 4: WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF THE

CHOPRA’S?

It is humbly submitted before the hon’ble court that the appellant has no right in the property of
parents of the respondant. The surrogacy contract creating rights and obligation was commercial
in nature and was contrary to the provisions of the law and the same was terminated and
cancelled and all the rights and obligations arises from clause (VI) of the said contract is void.
Moreover the appellant was adopted by Ms. Khan by implied permission of the Chopra’s and has
no relation with the chopra’s and their property.
 ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE SUPREME

COURT OF PERUCIA?

It is humbly submitted before the hon’ble court that the present appeal is not maintainable before
the SC of Perucia. In its present form as the present appeal do not involve any substantial
question of law of general importance as well as the question of fact and the same is likely to be
dismissed on this sole ground. It is further submitted that there is no cause of action arises in
favour of the appellant and the appellant is stopped by his own acts and conduct to claim the
relief as prayed far and is not authorized to file the present appeal and the same is liable to be
dismissed with cost.

1.1 Substantial Question of Law Not Involved

It is humbly submitted that substantial question of law to mean one which is of central public
importance for which directly or substantially affects the Rights of the parties or which has not
been finally settled by the SC. The question of law so arises should be a substantial question of
law. The expression “substantial question of law” cannot be put in straightjacket formula. It
depends upon each of the case whether the substantial question of law arises in the case or not.
Further it is submitted that the existence of substantial question of law is thus, the Sine Qua non
far the exercise of the jurisdiction under Art.133 of the Constitution of Perucia. Every question
of law or every question of fact could not be permitted to be raised in an appeal before the SC.2

It is further submitted that in the present case there is no question of law and the appeal should
be dismissed.

1.2 No Cause of Action

2
Sir Chunilal Mehta & Sons Ltd. v. The Century Spinning Co. Ltd., AIR 1962 SC 1314
It is submitted before the hon’ble court that the present appeal is not maintainable before the SC
of Perucia for there is no cause of action arising in the favour of the appellant to file the present
appeal. Further it is submitted that the term cause of action refers to a set of facts or allegations
that make up the grounds for filing a law suit. A cause of action is therefore by its very nature
essential to a civil suit, since without a cause of action a ciil suit cannot arise.

It is further submitted that in the case of Y. Abraham Ajith v. Insp. Of Police3, the apex court
held that, the expression “cause of action” is generally understood to mean a situation or state of
facts that entitles a party to maintain a action in a court or a tribunal, a group of operative facts
giving rise to one or more bases for sitting, a factual situation that entitles one person to obtain a
remedy in court from another person.

Further it is submitted that black’s Law dictionary states, a cause of action is stated to be the
entire set of facts that gives rise to an enforceable claim; the phrase comprise every fact, which,
if transverse, the plaintiff must prove in order to obtain judgement. It is submitted that in the
meaning attributed to the phrase “cause of action” in common legal parlance is existence of those
facts, which gives a party a right to judicial interference on his behalf.

Further in case of Rajiv Modi v. Sanjay Jain & Ors.4, hon’ble Apex court observed that “in order
to appreciate the jurisdictional aspect, it would be relevant to discuss the meaning of the
expression “cause of action”. This court has laid down that the cause of action is a fundamental
element to confer the jurisdiction upon any court and which has to be proved by the plaintiff to
support his right to a judgement of the court.

It is humbly submitted that it is relevant to take note of what was stated by this court in state of
Bombay v. Narottamdas Jethabhai5. In this case, it was observed that, the jurisdiction of the court
depended in civil cases on a “cause of action” giving rise to a civil liability, and in criminal cases
on the commission of an offence, and on the provisions made in the two codes of procedures as
to the some of the trials and other relevant matters.

1.3 Termination of Contract

3
(2004) 8 SCC 100
4
CR. Appeal no. 1214 of 2019
5
1951 SCR 51
It is humbly submitted that there is gestational surrogacy contract that was executed Ms. Khan
and Mr. & Ms. Chopra, vide dated 4th pril,2022 enumerating all the terms and conditions. The
obligations and liabilities have been clearly mentioned in the said contract. Mr. & Ms. Chopra
duly complied with the obligations and fulfill their liabilities as conferred by the gestational
contract. It is further submitted before the hon’ble SC that Ms. Khan after failing to complice
with the terms and conditions of the surrogacy contract herself terminated the said contract by
way of writing a terminating letter to Ms. & Ms. Chopra and also to Dr. Goswami. Ms. Khan
prior to the performance of surrogacy contract and in the latter half of the 7th month of pregnancy
started feeling attached to the child and started feeling a sense of fear that if she did not terminate
the contract, she would have to surrender the child to the chopra’s.

It is submitted that with the passing of each day Ms. Khan’s feelings for the child within her
grew more stronger and she started feeling insecure about the child that she started feeling bound
and imprisoned by the obligations and liabilities arising out of the surrogacy contract and it was
the time when she started thinking of terminating the contract and abscond with the child and to
never be found in the city of Cati again. It is further submitted that S. Khan too the decision with
her free consent certainly not to give up on the child. Finally in the last week of 8th month of
pregnancy, Ms.Khan terminated the surrogacy contract and chose not to complice with the
obligations of surrogacy contract and not to perform the said contract and decided to adopt the
child.

1.3.1 Termination by Rescission

It is humbly submitted that the termination by rescission by way of contract provided by the
ICA, 1872 under Sec. 62 lays down that if both the parties agree to rescind the contract, then
there is no obligation to perform the original contract.

It is further submitted that acc. to Merriam Webster dictionary, rescind means “to abrogate and
restore the parties to the positions they would have occupied had there been no contract”, this
rescission could be either express or implied.

Further it is submitted that in the case of Raghumal v. Luchmendas6, it was observed that the
burden to prove rescission is on the party who rescinds in order to show that it was correctly
6
1916
terminated. Further in the case of Damodar Valley Corporation v. K.K. Kar7, the hon’ble court
held that, “in certain circumstances it may be stated that there has been termination of the
contract unilaterally and as a consequence all the parties may agree to rescind the contract. In
such a situation, rescission would put on end to the performance of the contract in future.”

Therefore it is contended that the hon’ble HC of Cati has rightly passed the order below after
considering every fact and question of law. Therefore, the present appeal is not maintainable and
non tenable in the eye of law and is liable to be dismissed.

ISSUE 2: WHETHER THE SURROGACY CONTRACT WAS VALID BETWEEN MR. &
MRS. CHOPRA & MS. KHAN UNDER THE SURROGACY (REGULATION) ACT,2021?

7
1974 AIR 158
It is humbly submitted before the hon’ble court that the contract between Mr. & Mrs. Chopra and
Ms. Khan was not valid. It is further submitted that In the Indian context, owing to lack of
legislative clarity on the state’s position on Surrogacy Contracts, it becomes essential to
understand the scope of enforceability of surrogacy contracts concerning the Indian Contract
Act, 1872.

Further it is submitted that a surrogacy contract may be defined as a mutual agreement between
the intending couple and the surrogate mother which denotes the need for ART of surrogacy and
other rights and duties of both the parties. Further the contact lays foundation and governs the
whole procedure of surrogacy. It considers the interests of both parties and avoids any kind of
conflict or exploitation. In the present case, the contract was not an altruistic contract but a
commercial contract. The parties have not met the essentials of the Surrogacy (Regulation) Act,
2021.

It is submitted that though altruistic surrogacy contracts are necessary, there is no law that
explicitly provides for the validity and enforceability of surrogacy contracts. Dealing with the
question of what other aspects to be considered while determining the enforceability of
surrogacy contract, in Re: the paternity of F.T.R. David J. Rosecky v. Monica M Schissel8 and in
Re: Baby S. v. S.S.9, it was held that along with the provisions of contractual law of land, even
the best interest of the child shall be considered, when the contract of surrogacy was in question.

Further it is submitted that all Ms. Khan had medium income in Cati and to raise her daughter
and for other necessities, there was a need of good income. It is submitted that the Chopra’s
promised her through the way of surrogacy contract that they will be paying for Alia’s (daughter
of Ms. Khan) education till her graduation. This promised made the contract commercial in
nature and thus invalid.

2.1. Commercial Surrogacy under Surrogacy (Regulation) Act,2021

8
98 Marq. L. Rev. 1729 (2015)
9
447 S.W.3d 807 (Tenn. 2014)
It is humbly submitted that the surrogacy contract signed by the Chopra’s and Ms. Khan was
commercial in nature. Sec. 2 (1) (g) defines commercial surrogacy as – “ ‘commercial surrogacy’
means commercialization of surrogacy services or procedures or its component services or
component procedures including selling or buying of human embryo or trading in the sale or
purchase of human embryo or gametes or selling or buying or trading the services of surrogate
motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary
incentive in cash or kind, to the surrogate mother or her dependents or her representative, except
the medical expenses and such other prescribed expenses incurred on the surrogate mother and
the insurance coverage for the surrogate mother.”

It is submitted that clause (IX) of the surrogacy contract between the parties specifies that the
Chopra’s will bear the expenses for meeting the educational cost of the first child of the
surrogate mother, alia, up to her graduation. It is further submitted that this clause states that the
Chopra’s were paying for the dependents of Ms. Khan.

2.2. No Free consent by Ms. Khan

It is submitted that there was no free consent given by Ms. Khan. For a contract to be valid under
ICA, 1872 it is necessary that the contract is made by free consent. Owing to her lack of financial
crunches Ms. Khan accepted the offer and was willing to carry the child.

It is humbly submitted that free consent as defined under sec. 13 of the ICA, 1872 means that the
parties to the surrogacy shall mutually agree in the same sense to all the terms and conditions as
specified in the contract. Consent of the surrogate is not just a requirement under the ICA, 1872
but is also mandatory under Sec. 6 of the surrogacy (Regulation) Act. 2021.

It is further submitted that Sec. 6 (ii) of the Act, 2021 states –

“(ii) obtained in the prescribed form, the written informed consent of the surrogate mother to
undergo such procedures in the language she understands.”

It is submitted that in most of the cases, surrogates who are part of commercial surrogacy
contracts gives their consent keeping in mind the economic benefit. In the present case Ms. Khan
has medium income in Cati and owing to financial crunches she agreed to the offer made by the
Chopra’s. It was that the chopra’s through the surrogacy agreement promised to pay for the
education of Alia up to her graduation that Ms. Khan got ready to rent her womb to the intending
couple. The consent obtained was not obtained by free consent. Moreover there was
misrepresentation as the Chopra’s after some time of surrogacy procedure, Mrs. Chopra got
natural pregnant. Thus this misrepresentation clearly makes the contract voidable.

It is further submitted that Sec. 19 and 19A of ICA, 1872 state that consent obtained by coercion
or undue influence is voidable contract at the will of the party whose consent was obtained.

Therefore it is contended that the agreement between Mr. & Ms. Chopra and Ms. Khan was not a
valid contract but a voidable contract.

ISSUE 3: WHETHER ABRAM STOOD ADOPTED BY MS. KHAN?

It is submitted before the hon’ble court that Abram stands adopted by Ms. Khan as the contract
was not a valid contract but a voidable contract that means that Ms. Khan at anytime can
terminate or rescind the contract at her will.

3.1. Adoption under Muslim Law

It is humbly submitted that the custom of adoption is prevalent amongst many classes of
Mohammedans in Perucia. It has been prevalent in Punjab10, Sindh11, Ajmer12, Kashmir13,
Bombay14, Madhya Bharat15, and amongst Mahavatan in Rajasthan16.

Further it is submitted that the custom of adoption, which is prevalent amongst Mahavatan
community of Muslims is quite similar to that of adoption system amongst Hindus. In Abdul
Hakim v. Gappu Khan17, the Rajasthan High Court observed that there is overwhelming oral
evidence in support of the custom of adoption among the Mahawats.

It is submitted that In Neeno Khan v. Mst. Sugani,18 it was held by the same High Court that by
virtue of custom, Mohammedans might also have system of adoption. In Mst. Bibi v. Syed Ali,19 the
same high court has considered the matter in details and has come to the following findings:

(i) Adoption is, as a rule, not unknown to Muslim Law.

(ii) By virtue of custom, Mohammedans may also have the system of adoption.

(iii) A Muslim who alleges that by custom he is subject of adoption must prove it.

Thus, there are plenty of decisions to support the fact that Muslim law recognizes adoption by
custom.

3.2 . Adoption under Juvenile Justice ( Care and Protection) Act, 2015

10
Khair Ali Shah v. Imam Shah, AIR 1936 Lah 80.
11
Usman v. Asat, AIR 1925 Sind 207.
12
Abdullah Khan v. Sunda, 11 J.C. 670.
13
Mst. Khatgi v. Abdul Razzaq, AIR 1977 J & K 44; Mohd. Akbar Bhat v. Mohammad Akhoon, AIR 1972 J & K 105.
14
Ayubsha Amirsha Jamadar v. Babalal Mahabut Danawade, AIR 1938 Bom 111.
15
Abbasali Shah v. Mohammad Shah, AIR 1951 Madhya Bharat 92.
16
Abdul Hakim & Ors. V. Gappu Khan, S.B. CSA No. 115/1950- decided on 22.12.1954
17
Ibid
18
1974 WLN (UC) 8.
19
S.B. SA No. 132/1990, decided on 12.9.1997.
It is humbly submitted that sec. 2 (aa) defines adoption as - (aa) “adoption” means the process
through which the adopted child is permanently separated from his biological parents and
become the legitimate child of his adoptive parents with all the rights, privileges and
responsibilities that are attached to the relationship.”

Further it is submitted that in the case of M/S Shabnam Hashmi v UOI & Ors.20, J. Ranjan Gogoi
held that The Juvenile Justice (Care and Protection of Children) Act, 2000 is an enabling
legislation that gives a prospective parent the option of adopting an eligible child by following
the procedure prescribed by the JJ Act, 2000, the Rules i.e. the Juvenile Justice (Care and
Protection of Children) Rules, 2007 and the CARA Guidelines. The JJ Act, 2000 is a small step
in reaching the goal enshrined by Article 44 of the Constitution of India. Personal beliefs and
faiths, though must be honored, cannot dictate the operation of the provisions of an enabling
Statute. The concept of adoption among Muslims was discussed in detail in the case of The
Hon’ble Apex court invoked the Juvenile Justice Act, 2000 saying that it is a secular law and
applies on all people, including Muslims. Thus, a Muslim also even if he is governed by the
Muslim personal law can adopt a child.

3.2. Termination of Contract

It is humbly submitted that the surrogacy contract between the Chopra’s and MS. Khan was a
voidable contract as there was no free consent by Ms. Khan. Therefore it is on the will of Ms.
Khan that she can terminate the contract.

Further it is submitted that in Mohd. Hussain vs. Fida Hussain And Anr21 , the Punjab & Haryana
High Court had observed that in plain English, Sections 19 and 19A of the Indian Contract Act,
1872 state that where a party’s consent is obtained through coercion, fraud, or undue influence,
the agreement is voidable at the discretion of the party whose consent was obtained in such a
manner. In other words, Sections 19 and 19A declare that a contract entered under duress, fraud,
or undue influence is voidable at the aggrieved party’s discretion. A party to a contract whose
consent was obtained through deception may, if he/she so desires, insist on the contract’s
performance and that he/she be placed in the position he/she would have been in if the
representation made had been accurate.
20
 (2014) 4 SCC 1
21
AIR 1952 P H 224
Therefore, Abram is not the biological child of the Chopra’s and therefore Ms.Khan is not liable
to take prior permission for adoption of Abram.

3.3. Right to Adopt : A fundamental Right

It is humbly submitted that right to a child to be adopted and that of the prospective parents to
adopt is declared a fundamental right under Art.21 of the Constitution of Perucia. in case of
Payal Sharinee v. Vinayak Pathak22, the Bombay HC hed that adopting a child is an integral
component of right to life under Art. 21 of the Constitution.

Further in the case of M/S Shabnam Hashmi v. UOI & Ors.23, the court held that recognition of
the right to adopt and to be adopted as a fundamental right under Part- III of the Consttution in
the vision scripted by the public spirited individual who has moved the court under Art. 32 of the
Constitution.

Therefore it is contended that Muslim Law recognizes adoption and the contract was terminated
by the will of the parties and Abram stood adopted by Ms. Khan by implied permission from the
Chopra’s, as they made no endeavour to search or Ms. Khan by approaching the authorities and
lodging FIR, etc.

ISSUE 4: WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF THE

CHOPRA’S?

22
2010 (1) BomCR 434
23
(2014) 4 SCC 1
It is humbly submitted before the hon’ble court that the appellant has no right in the property of
parents of the respondant. The surrogacy contract creating rights and obligation was commercial
in nature and was contrary to the provisions of the law and the same was terminated and
cancelled and all the rights and obligations arises from clause (VI) of the said contract is void.
Moreover the appellant was adopted by Ms. Khan by implied permission of the Chopra’s and has
no relation with the chopra’s and their property.

4.1. Surrogacy Commercial in Nature

It is humbly submitted that commercial surrogacy has been defined in Sec. 2 (1)(g) of the
Surrogacy (Regulation) Act, 2021 as “ ‘commercial surrogacy’ means commercialization of
surrogacy services or procedures or its component services or component procedures including
selling or buying of human embryo or trading in the sale or purchase of human embryo or
gametes or selling or buying or trading the services of surrogate motherhood by way of giving
payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the
surrogate mother or her dependents or her representative, except the medical expenses and such
other prescribed expenses incurred on the surrogate mother and the insurance coverage for the
surrogate mother.”

It is submitted that commercial surrogacy has been videly described in the above provision of
surrogacy (regulation) Act, 2021 and included given the services of the surrogate mother by way
of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind to
the surrogate mother or her dependants or her representatives and in the present case Ms. Khan
accepted the expenses for meeting the educational cosr of her first child namely, Alia, upto her
graduation as described in clause (IX) of the surrogacy contract. the above mentioned facts falls
within the category of commercial surrogacy.

It is further submitted that the commercial surrogacy is prohibited under the chapter VIII, Sec. 38
of Surrogacy (Regulation) Act, 2021 and is considered as a punishable offence. The provisions
of sec. 38 (1) (a) states - (a) undertake commercial surrogacy, provide commercial surrogacy or
its related component procedures or services in any form or run a racket or an organised group to
empanel or select surrogate mothers or use individual brokers or intermediaries to arrange for
surrogate mothers and for surrogacy procedures, at such clinics, laboratories or at any other
place;

4.2. Termination of Contract

It is humbly submitted that the contract was a voidable contract. The surrogacy contract was
terminated by rescission of contract and all the rights and obligations arises from Clause (VI) of
the surrogacy contract was void.

Further it is submitted that section 19 of ICA, 1872 states –

“When consent to an agreement is caused by coercion, 1 *** fraud or misrepresentation, the

agreement is a contract voidable at the option of the party whose consent was so caused.”

“A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks
fit, insist that the contract shall be performed, and that he shall be put in the position in which he
would have been if the representations made had been true.”

Further it is submitted that in Mohd. Hussain vs. Fida Hussain And Anr24 , the Punjab & Haryana
High Court had observed that in plain English, Sections 19 and 19A of the Indian Contract Act,
1872 state that where a party’s consent is obtained through coercion, fraud, or undue influence,
the agreement is voidable at the discretion of the party whose consent was obtained in such a
manner. In other words, Sections 19 and 19A declare that a contract entered under duress, fraud,
or undue influence is voidable at the aggrieved party’s discretion. A party to a contract whose
consent was obtained through deception may, if he/she so desires, insist on the contract’s
performance and that he/she be placed in the position he/she would have been in if the
representation made had been accurate.

4.3. Adopted child cannot be again given in adotion

It is humbly submitted that Abram was adopted by Ms. Khan and thus he has no right in the
property of the Chopra’s. Further sec. 15 of Hindu Adoptions and Maintenance Act, 1956 states
that Adoption once made is final and irrevocable.

24
AIR 1952 P H 224
It is submitted that adoption validly made cannot be cancelled by the adopter, natural parets or
any other person.25 Nor can an adopted child renounce his adoptive parents and return to family
of his or her birth.26

Further it is submitted that according to the Hindu Adoptions and Maintenance Act, 1956, after
adoption, the adopted children lose all their rights in their biological family, including the right
to claim any share in the estate of the biological father or relations, or any stake in the
coparcenary property.

Therefore it is contended that Abram has no right in the property of the Chopra’s.

25
Nand v. Bhupinder. 1966 Cal 181
26
Section 15, Hindu Maintenance and adoption Act, 1956
 PRAYER

Wherefore in the light of facts presented, issued raised, arguments advanced and authorities
cited, the counsel on the behalf of petitioner before this hon’ble court pray that it may be pleased
to adjudge and declare that :
1. The appeal is not maintainable before the SC of Perucia.
2. The surrogacy contract was voidable between Mr. & Ms. Chopra and MS. Khan under
the Surrogacy (Regulation) Act, 2021.
3. Abram does stand adopted by Ms.Khan.
4. Abram has no rights in the property of the Chopra’s.

Also pass any order that hon’ble court may deem fit in the favour of the petitioner to meet the
ends of equity, justice and good conscience.

For this act of Kindness, the petitioner shall duty bound forever pray.