3RD NATIONAL MOOT COURT COMPETITION,2022

TEAM CODE: CN- 23-P

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 ……………………………… APPELLANT

V.

Shashwat ………………………………. RESPONDANT

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

MEMORANDUM ON THE BEHALF OF THE PETITONER

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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

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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

1. Dr. N. B. Khare v. State of Delhi

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2. Shreya Singhal v. UOI

3. Francis Coralie Mullin v. Union Territory of Delhi
4. State of Maharashtra vs. Madukar Narayan Mandikar
5. Kiran Bedi’s case
6. Sukhwant Singh v. State of Punjab
7. Rajit D. Udeshi v. State of Maharashtra
8. R. v. Hicklin
9. K.A. Abbas v. Union of India
10. Ramji Lal Modi v. State of U.P
11. Anuradha Bhasin v. Union of India
12. Faheema Shirin v. State of Kerala
13. Kartar Singh v. State of Punjab
14. PUCL v. Union of India
15. National Investigation Agency v. Zahoor Ahmad Shah Watal

STATUTES REFERRED
1. Constitution on India
2. Indian Penal Code,1860
3. Unlawful Activities (Prevention) Amendment Act,2019

BOOKS REFERRED
1. Constitution of India- M.P. Jain, Narender Kumar, V.N. Shukla
2. Indian Penal Code,1860- K.D. Gaur, Ratanlal & Dheerajlal

ONLINE SOURCE

1. SCC online
2. Manupatra

STATEMENT OF JURISDICTION

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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
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

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activities. The couple found that they were not capable of conception, owing to infertility. Even
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

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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?
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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

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ISSUE 1: Whether the Xatali Community Members (Management and Regulation of

Conduct) Act, 2022 is ultra vires the Constitution of Indica?
It is submitted that the Act is in combined reading with the provisions of fundamental Rights and
fundamental freedoms. Nothing in this Act infringes or tries to infringe the Rights conferred by
an individual. It is submitted that the legislature is in the best position to understand and
appreciate the needs of the people. The Court will, therefore, interfere with the legislative
process only when a statute is clearly violative of the rights conferred on the citizen under Part-
III of the Constitution. There is a presumption in favor of the constitutionality of an enactment
Therefore, the Xatali Community (Management and Regulation of Conduct) Act, 2022 is not
ultra vires the Consti.Of Indica.
ISSUE 2: Whether there is a hierarchical scheme in the idea of fundamental rights?
It is submitted before the hon’ble court that there is no description about hierarchical scheme in
the idea of Fundamental rights. Further it is submitted that the right to live a free, full and
dignified life is one of the most basic principles of human existence. Every person is entitled to
live their life on their own terms, with no unfair interference from others. In Indica, the
Protection of Life and Personal Liberty is a Fundamental Right granted to citizens under Part III
of the Constitution of Indica, 1950. These Fundamental Rights represent the foundational values
cherished by the people and are granted against actions of the state, meaning that no act of any
state authority can violate any such right of a citizen except according to the procedure
established by law. Therefore it contended that right to life is on higher pedestal.
ISSUE 3: Whether the author’s right to freedom of speech and expression violates the
general standards of morality or decency established by the community?
It is submitted that as stated in sec. 2(b) that no member shall discuss publicly or initiate
discourse about the intimate acts against the representation of women. The respondant has
clearly disregarded and violated the general standards established by the community. It is
submitted that the community worships women and on the same time the respondant belonging
to the same community is disregarding women by lasciviously describing her. Therefore, it is
contended that aurthors’ right is violating general standards of the community.

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ISSUE 4: Whether the right to freedom of speech and expression is curtailed on the ground
that it is violative of the religious sentiments of a particular community?
It is submitted before the hon’be court that the right to freedom of speech and expression is
curtailed on the ground that it is violative of the religious sentiments of a particular community.
It is submitted that every freedom comes with certain restrictions; there is no concept of absolute
freedom. Our Constitution gives us a plethora of fundamental rights, freedom of speech and
expression being one of them. Art. 19(2) of the Indian Constitution lay down the right to freedom
of speech and expression but with reasonable restrictions. To be capable of justification under
Article 9(2), the interference with the right to manifest one’s beliefs must be necessary, not just
reasonable, and the interference should be no more than is needed to achieve a legitimate aim.
ISSUE 5: Whether the right to access to the internet is a fundamental right under Article
21 of Indica?
It is submitted that internet being a basic part and parcel of day to day life is enshrined under the
purview of part-III of the Constitution. Mobile phones and internet access through it are part and
parcel of the day to day life. The court looked at resolutions adopted by the United Nations
Human Rights Council and the General Assembly which unequivocally point to the fact that how
internet access plays a key role in accessing information and its close link to education and
knowledge. The court took the view that the right to be able to access the internet has been read
into the fundamental right to life and liberty, as well as privacy under Article 21. The court
added that it constitutes an essential part of the infrastructure of freedom of speech and
expression.
ISSUE 6: Whether the 2019 to the Unlawful Activities (Prevention) Amendment Act, 2019
is manifestly arbitrary and violative of Articles 14 and 21 of the Constitution of Indica?
It is submitted that One of the step to curtail terror is that the amendment made changes so as to
designate ‘individuals’ as terrorists by amending Section 35 and 36 of the parent act which
originally only empowered the government to declare ‘organizations’ as terrorist for carrying out
‘unlawful’ activities. The need for this provision was much appraised by Mr. Anil Chowdhry,
Former Secretary, Internal Security, Ministry of Home affairs (MHA). He also further
highlighted that without the insertion of this particular provision it would’ve been impossible for
the government to designate ‘lone wolves’ who don’t necessarily operate under any organization,
as terrorist.

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ARGUMETS ADVANCED

ISSUE 1: WHETHER THE APPEL IS MAINTANABLE BEFORE THE SUPREME

COURT OF PERUICA?

It is humbly submitted before the hon’ble court that the present appeal is maintainable before the
SC of Perucia and the same has been filed as per the provisions of land law laid down by the
Constitution of Perucia. The appellant filed the present appeal under Art. 134(A) read with
Article 133(1) of the Constitution of Perucia by way of filing the present appeal. The appellant
filed the order passed by hon’ble HC of Cati.

Further it is submitted that the appellant had obtained a certificate of appeal before the SC of
perucia through an oral application made before the HC of Cati, under Article 134A of the
Constitution of Perucia.

The provisions of the Aticle 133(1) states as follows,

“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”

Further the provisions of Article 134A states,

“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 (

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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.”

1.1 Appelate Jurisdiction of SC

It is submitted that the appellate jurisdiction is one of the most important jurisdiction exercised by
the courts in the country. This jurisdiction enables a person to approach the higher court in case he
is not satisfied with the judgment given by the lower courts.

It is further submitted that the SC is primarily a court of appeal and enjoys extensive appellate
jurisdiction. The jurisdiction may be discussed under the following heads:

(a) Constitutional Matter (Art. 132)

(b) Civil Matters (Art. 133)
(c) Criminal Matter (Art. 134)

1.2 Appellate Jurisdiction of SC in Civil Matters

It is submitted that following are the conditions for an appeal in the SC:

(a) When the judgement, decree or order passed by the HC

(b) When the issue in the case involve a substantial question of law.
(c) When the HC deems fit that case must be dealt with by the SC only

Further it is submitted that under Art. 133, SC has the power of appellate jurisdiction. Under Art.
133(1), an appeal lies to the SC from any judgement, decree or final order in a civil proceeding of
a HC if it certifies-

(a) That the case involves a substantial question of law of general importance, and
(b) That in the opinion of the HC, the said question needs to be decided by the SC

It is submitted that in the present case, the oral application was made by the appellant before the
HC of Cati. In the case of Balraj Taneja v. Sunil Madan2, the hon’ble court held that the judge
can’t simply say that the suit is dismissed or suit is decreed, but has to give reasons for the same.

2
AIR 1999 SC 3381

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1.3 Certificate of Appeal under Article 134A

It is submitted that article 134-A provides: ‘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’

It is further submitted that Art. 134-A makes it obligatory on the HC to determine the question of
granting certificate immediately on the passing or making of the judgement, decree, final order or
sentence, either on oral application made by the party aggrieved or if it deems fit to do so, on its
own motion.

It is submitted that the provision for seeking leave to ppeal, has been said to be “ in order to ensure
that no frivolous appeals are filed against orders of acquittal, as a matter of course.” 3

It is further submitted that in the present case, the HC has granted the certificate of appeal as it
deems fit that there is a substantial question of law and moreover the essesntials of Art. 133(1) are
fulfilled.

Further it is submitted that the HC is of the strong opinion that in the present case the question of
law is of grave importance and hence should be decided by the SC only.

ISSUE 2: WHETHER HE SURROGACY CONTRACT WAS VALID BETWEEN MR. &

MS. CHOPRA AND MS KHAN UNDER THE SURROGACY (REGULATION) ACT,
2021?

It is submitted before the hon’ble court that the contact was valid between Mr. & Ms. Chopra
and Ms. Khan under the surrogacy (regulation) Act,2021.
3
State of Rajasthan . Sohan Lal, AIR 2004SC 4520

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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. The contract lays foundation and governs the whole
procedure of surrogacy. It considers the interest of both parties and avoids any kind of conflict or
exploitation.

It is submitted that in the present case, the contract between Mr. & Ms. Chopra and Ms. Khan
specifies as follows:

(I) Market rate for the cost of surrogacy at INR xyz

(II) Market rate for the cost of all unsuccessful attempts of surrogacy at INR xyz
(III) Market rate of medical costs for the surrogate mother at INR xyz
(IV) Market rate for each hospital visit for the surrogacy at INR xyz
(V) Market rate for the cost of medical test for surrogate mother at INR xyz
(VI) Market rate for the cost of a hospital room and other services during childbirth at INR
xyz
(VII) Cost of the surrogate mother being unable to work during pregnancy at INR xyz
(VIII) Insurance coverage for surrogate mother covering postpartum delivery complications
up to thirty- six months after delivery at INR xyz
(IX) Expenses for meeting the educational cost of the first child of the surrogate mother,
Alia, up to her graduation
(X) Miscellaneous expenses to the extent of INR xyz

Further it is submitted that other relevant terms and conditions casting an obligation over the
contractual parties involved:

(I) The surrogate mother to be a fit and healthy condition, both mentally and physically,
and to remain to be fit and healthy and not working during the term of pregnancy.
(II) The surrogate mother is to bear the child in good- will and after birth, to surrender the
child and relinquish all the rights to the intending parents.
(III) The intending parents, under no circumstances, to decline acceptance of the child
after birth, irrespective of its physical o mental condition.
(IV) The surrogate mother is to be less than 35 years of age.

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(V) The surrogate mother is to be free from the consumption of alcohol, cigarettes, or any
other form of intoxication.
(VI) The surrogate (unborn) child to be the successor to all the properties belonging to the
chopra’s.

It is submitted that as a general principle all agreements are governed by the provisions of the
ICA, 1872. This implies that even the altruistic surrogacy contracts shall meet all the requisites
of a valid contract provided under ICA, 1872. In this way the ICA, 1872 provides legal
recognition to the entire altruistic surrogacy contract.

It is humbly submitted that the judiciary also from the first case of Baby Manji Yamada v. UOI4,
observed surrogacy agreements from the viewpoint of Contract Act and held it to be valid.

2.1 Indian Contact Act and Surrogacy Agreement

It is humbly submitted that the essential elements of a valid contract under ICA, 1872 are
specified under Sec. 10 of the Act.5 Sec. 10 reads as follows:

“All agreements are contracts if they are made by the free consent of the parties
competent to contract, for a lawful consideration and with lawful object and are
not expressly declared to be void.”

Only if the surrogacy agreement fulfills these conditions, it will be valid and enforceable in a
court of law.

It is further submitted that in the present case, the agreement fulfils all the conditions, i.e. the
parties are competent, there is free consent, a lawful consideration, a lawful object and further is
not expressly declared to be void.

2.1.1 Free Consent

It is humbly submitted that free consent is defined under Sec. 14 of the ICA, 1872 as free from
coercion, undue influence, fraud, misrepresentation and mistake.6 In case of surrogacy
4
(2008) 13 SCC 518 at 521, para 4. 10 217 N.J. Super.
5
Sec.10, Indian Contract Act, 1872, Act No. 9 of 1872, Acts of Parliament,
1972.
6
Sec. 14, Indian Contract Act, 1872, Act No. 9 of 1872, Acts of Parliament,
1972.

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agreements, generally, no doubt there is free consent from the intended couple but what has to be
determined is whether there is free consent from the surrogate mother.

It is further submitted that in the present case, the consent was totally free from both the parties,
neither the intended couple nor the surrogate mother were forced to give their consent by any
means. It is clearly specified in the facts that both the parties were willing to perform the process
of surrogacy.

It is submitted that unless a presumption of inequality of bargaining power7or other forms of

undue influence8 is raised which goes unrebutted, the consent is held free. Mental distress caused
by the need for money is held not to be sufficient to negate consent by the courts.9

2.1.2 Competency to Contract and Surrogacy (Regulation) Act

It is humbly submitted before the hon’ble court that like any other contract, even for an altrustic
surrogacy contract both the parties to the contract shall be competent to enter into the contact.
Sec. 11 of the ICA deals with who are competent to contact. In addition to these, the Surrogacy
( Regulation) Act, 2021 provides for certain qualifications for the surrogate mother as well as for
the intending parents.

Further it is submitted that sec. 4(b) of the Surrogacy (Regulation) Act, 2021 deals with issuing
the eligibility certificate to the surrogate mother and stated that for a woman to be a surrogate
mother, she should be married and have a baby of her own. With respect to age, it provides that
the surrogate mother shall be between the ages of 25 to 35 years. Further sec. 4(c) of the Act
provides for the eligibility criterion for the intending couple and states that the intended couple
should be married for at least 5 years and the female should be between the age of 23 to 50 years
and the male should be between the ages of 26 to 55 years. The intending couple shall not have
either biological or adopted or surrogate child living at that time.

It is humbly submitted that in the present case all the essentials are fulfilled by the parties, and
therefore it is contended that the parties are competent to contract.

7
Lloyds Bank v. Bundy, 1975 1 QB 326.
8
Section 16, Indian Contract Act 1872
9
Raghunath Prasad v. Sarju Prasad, AIR 1924 PC 60.

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Further it is submitted that The Supreme Court of India formally legalized commercial surrogacy
in the landmark case Baby Manaji Yamanda v. Union of India10, in this case the Court defined
“commercial surrogacy as a form of surrogacy in which a gestational carrier is paid to carry a
child to maturity in her womb” and the related aspects as surrogacy agreement, the stakeholders
or parties who may enter, and directed for enactment of a statutory law on the same. The
supreme court admitted not only the void in law but also the irregularities taking place in the
absence of law by calling surrogacy as money making racket. In this case of Baby Manji, a
surrogacy agreement was entered into between the biological father and biological mother on
one side and the surrogate mother on the other side. But subsequently in this case there were
issues raised on the legality of the surrogacy agreement but the court allowed the same.

In re Paternity of F.T.R25., the Wisconsin Supreme Court dealt at length with the issue of
enforceability and non enforceability of surrogacy or parentage agreements that came for
consideration before the court, wherein the Wisconsin Supreme Court ruled that in the absence
of binding statutory law in Wisconsin the parentage agreement in this case as just a contract,
more or less like any other contract. The Wisconsin supreme court held that in order to make the
surrogacy agreement enforceable such agreement satisfy the other requirements for a valid
contract, in the furtherance of same, the court held that like All contracts require consideration.”
The consideration is the promise to pay the surrogate’s medical expenses and to relieve her of
obligations was enough or the consideration is money given exchange for undergoing pregnancy
and relinquishing or handing over the custody of baby to the couple and the surrogacy
agreement must comply with the best interests of the child.

Therefore it is contended before the hon’ble court that the all the terms and conditions creating
rights and obligations of the contracting parties of the said contract were clearly and expressly
written in the surrogacy contract and there is no question arises regarding authenticity, fraud,
cheating and misrepresentation in the surrogacy contract. Therefore the contract is valid.

10
(2008) 13 SCC 518.

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ISSUE 3: WHETHER ABRAM STOOD ADTOPED BY Ms. KHAN?

It is humbly submitted before the hon’ble court that appellant does not stand adopted by Ms.
Khan. Ms. Khan by religion is a Muslim and being a Muslim, it is clearly prohibited in Muslim
law to adopt a child.

It is further submitted that Ms. Khan during the latter half of 7th month of pregnancy grew
emotional feelings with the surrogate child in her womb. Owing to these feelings she decided
that she would terminate the consent and abscond and never be found in the city of Cati. In the

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last week of 8th month of pregnancy she decided to implement her plan and wrote a letter and
posted the same to the Chopra’s and Dr. Goswami.

Further it is submitted that the relevant the relevant abstract from the letter stated –

“My sincere apologies to Mr. and Mrs. Chopra, who for all these months have only treated me as
their own. I could not imagine the level of pain I bring to you and would never be able to
completely release myself from this guilt. However, at this point, I have become helpless and the
love I possess for the child growing within me has taken over any other feeling that I might
embark upon. I apologize to the EBC hospital, as well as Dr. Goswami, who has taken great care
of me. I understand I will never become worthy of your pardon, but just believe that I have
become helpless. I think even almighty wanted me to have this child, as he blessed your womb
with another child despite doctors declaring you unfit for the same. I have decided to raise the
baby within me as my own child. Please let me adopt this child. This is the demand of the
Almighty.”

3.1. Breach of Contract

It is humbly submitted that there was a breach of contract by Ms. Khan and it is specifically
mentioned in the said contract that she has to surrender the child and relinquish all the rights to
the intending parents. Neither the contract was terminated nor rescinded by the parties. It was
just that Ms. Khan wrote a letter asking the Chopra’s to relinquish their rights on their biological
child.

3.2. Adoption Not Valid in Muslim Law

It is humbly submitted that adoption is the practice through which an individual belonging to by
birth to one kinship group acquires new kinship ties that are defined as equivalent to the
congenital ties. Acc. to Sec. 2(2) (aa) Of J.J. Act, 2015, “Adoption means the process through
which the adopted child is permanently separated from his biological parents and becomes
lawful child of his adoptive parents with all the rights, privileges and responsibilities that are
attached to a biological child.”

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It is further submiited that Ms. Khan is a Muslim by religion and under Muslim Personal Law,
adoption is not recognized. Tyabji, a renowned author in Muslim Law in his book, “ The
Personal Law and Muslims in India and Pakistan” has observed that, “ adoption is not known to
Muslim Law”. other authors like Ameer Ali, Wilson, Abdur Rahim have also observed in their
commentaries that adoption is unknown to Mohemmedan Law. Acc. to these authors, Holy
Quran prohibits adoption.

Further in Muhammad Allahadad Khan v. Muhammad Ismail11, Mahmood, J., remarked that
“there is nothing in the Mohemmedan law similar to adoption as recognized in Roman and
Hindu system. The Mohemmedan law does not recognize adoption as a mode of filiation.

11
ILR (1888) 12 ALL. 289

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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 is the exclusive owner of the
whole of the property of the Chopra’s vide surrogacy contract dated 4th April, 2022. Mr. & Ms.
Chopra rightly transferred all their interest in whole of their property in favour of the appellant
through the registered surrogacy contract executed between Mr. & Mrs. Chopra & Ms. Khan
contains all the terms and conditions and is evident enough to draw the rights and obligations of
persons named in that contract.

It is further submitted that the embryo was handled in the clinic and thereafter, the same was
implanted in Ms. Khan’s body. Appellant is biological son of Mr. & Mrs. Chopra and Ms.

Khan have no concern, authority and right over the appellant. Further being a biological son of
the Chopra’s and on account of terms and conditions of surrogacy contact, the appellant is the
exclusive owner of the property of the Chopra’s.

Further it is submitted clause (VI) of the contact between the Chopra’s and Ms. Khan specifies –
“the surrogate (unborn) child to be the successor to all the properties belonging to the Chopra’s.
this clearly states that the will was made by the Chopra’s through the way of the contract and the
Appellant is the sole owner of the property of the Chopra’s.

It is further humbly submitted that Sec. 8 of Surrogacy (Regulation) Act, 2021 states –

“8. Right of a surrogate child- A child born out of surrogacy procedure, shall be deemed to be a
biological child of the intending couple or intending woman and the said child shall be entitled to
all the rights and privileges available to a natural child under any law for time being in force.”

It is therefore submitted before the hon’ble court that the learned trail court and HC below have
erroneously passed the order against the appellant, all the evidences produced and the facts
presented were overlooked and discarded by the courts below and the same is liable to be set
aside.

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1.1 The Contract is valid

It is humbly submitted that the gestational surrogacy contract is valid between Ms. Khan and the
Chopra’s as per the Sec. 1o of ICA, 1872 and provisions of sec. 4 of Surrogacy (Regulation) Act,
2021. It is further submitted that sec. 2 (1) (zd) of surrogacy (Regulation) Act, 2021 states –

“Surrogacy means a practice whereby one woman bears and gives birth to a child for an
intending couple with the intention of handing over such child to the intending couple after the
birth”

Further it is submitted that the surrogacy executed was a gestational surrogacy. Hon’ble court in
case Baby Manji yamada v. UOI12, defined gestational surrogacy as “in ‘gestational surrogacy’
(also known as the Host method) the surrogate becomes pregnant via embryo transfer with a
child of which she is not the biological 8 mother. She may have made an arrangement to
relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated
to the child (e. g. because the child was conceived using egg donation, germ donation or is the
result of a donated embryo). The surrogate mother may be called the gestational carrier.”

Further explanation of sec. 4 of Surrogacy (Regulation) Act, 2021 defines gestational surrogacy
as –

“A practice whereby a surrogate mother carries child for the intending couple through
implantation of embryo in her womb and the child is not genetically related to the surrogate
mother.”

It is further submitted that all the side effects and after effects of the procedure of surrogacy were
already been explained to Ms. Khan and she accepted all the terms and conditions of the said
contract with her free consent and without any undue influence, fear and misrepresentation.

Further it is submitted that all the terms and conditions creating rights and obligations of the
contracting parties of the said contract were clearly an expressly written in the surrogacy contract
and there is no question arising regarding authenticity, fraud, cheating and misrepresentation in
the surrogacy contract.
12
AIR 2009 SC 84

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1.2 Right of Surrogate Child

It is humbly submitted that in the modern time UN Repot of 2001, as well as Art. 16 (3) of
UDHR, 1968 and ICCPR, 1966 have recognized that every human being irrespective of their
social status as the basic human right to have a family and other rights. Further the children born
through surrogacy have the same rights in all aspects including property rights under the
UNCRC.

Further it is submitted that sec. 8 of the surrogacy (Regulation) Act, 2021 states –

“8. Right of a surrogate child- A child born out of surrogacy procedure, shall be deemed to be
a biological child of the intending couple or intending woman and the said child shall be entitled
to all the rights and privileges available to a natural child under any law for time being in
force.”

It is humbly submitted that the surrogacy contract is executed between the Chopra’s and Ms.
Khan s per the provision of the Surrogacy (Regulation) Act, 2021. Further the Act imples that
surrogacy is a well defined consent establishing and enlisting the rights, duties and obligations of
the parties involved and the unborn child.

Further it is submitted that clause (VI) of the surrogacy Contract in the present appeal clearly
contain the will of the Chopra’s in which Mr. & Mrs. Chopra declare the appellant to be the
successor of the properties belonging to the Chopra’s.

Therefore it is contended that the appellant is the biological son of Mr. & Ms. Chopra and is
genetically belonging to the Chopra’s and therefore comes within the ambit of legal heir of the
Chopra’s. It is therefore that the appellant is the successor of all the properties of the Chopra’s
and has full right in it.

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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 maintainable before the SC of Perucia.
2. The surrogacy contract was valid between Mr. & Ms. Chopra and MS. Khan under the
Surrogacy (Regulation) Act, 2021.
3. Abram does not stand adopted by Ms.Khan.
4. Abram has all 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.

Counsel for Petitioner

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