Delhi High Court Rejects Plea Of Man Seeking No Objection Certificate From Estranged Wife To Have A Child Through Surrogate Mother

The Delhi High Court has rejected the plea of man who sought No Objection Certificate (NOC) from his estranged wife to have a child through a surrogate mother.

An appeal under Section 19(1) of the Family Courts Act, 1984 was filed against the order vide which the application of the appellant/husband under Section 151 of CPC seeking directions to the respondent/wife to issue NOC for having a child from a surrogate mother, was dismissed.

A Division Bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna held, “In the present case, the only ground on which the appellant had sought a child through surrogacy is that respondent/ wife is not forthcoming though it is a fact denied by her. The Divorce petition has been filed only in 2022 and his claim that he is now 54 years old and the divorce petition may take long, does not appeal to reason. He may seek expeditious disposal of his divorce petition. His application for child through surrogacy during the subsistence of marriage, has been rightly dismissed by the learned Judge, Family Court.”

Advocate Rajiv Kr. Jha represented the appellant/husband while Advocate Narender Pal Singh represented the respondent/wife.

In this case, the appellant/husband had filed a divorce petition on the grounds of cruelty under Section 13 (1)(ia) of the Hindu Marriage Act, 1955 in the year 2022. During the trial, he moved an application under Section 151 CPC wherein he submitted that he was already 54 years old and divorce proceeding shall take substantial time to be disposed of and that with growing age, he would become less capable to perform his duty as a father. He was left with no option but to have a child through surrogacy to carry forward his DNA line and there was no chance of his becoming a father without the cooperation of the respondent/ wife.

Therefore, a prayer was made to direct the respondent to issue a “No Objection Certificate” to the appellant to have a child through a surrogate mother. The respondent had submitted that she had cooperated with the appellant for IVF, though it was disputed by the appellant. A similar application was also filed before the High Court, but it never got listed. The Judge, Family Court observed that no provision was mentioned in which the Court could grant the prayer made in the application and thereby dismissed the application. Aggrieved by the same, the appellant filed an application before the High Court.

The High Court in view of the facts and circumstances of the case observed, “… as per the definition of surrogacy, the child is to be handed over to the “intending couple” by the woman. Section 2 (h) of the Act defines a „couple‟ as “the legally married Indian man and woman above the age of 21 years and 18 years respectively”. … the petitioner/ appellant is seeking divorce from his wife and it is difficult to comprehend his intending to have a child through surrogacy during the subsistence of marriage, as it may lead to unwarranted complications not only inter-se the couple but also the child.”

The Court took note of the fact that Chapter 3 of the Act provides for “Regulation of Surrogacy and Surrogacy Procedures” wherein Section 4 (ii) (a) states that a surrogacy procedure cannot be availed unless an intending couple has a medical indication necessitating gestational surrogacy, but on obtaining a “Certificate of Recommendation” from the Board on an application made by them, they may be allowed for surrogacy and therefore, a complete Act which provides for a comprehensive procedure to be followed in case a person intends to have a child through surrogacy.

“We find no merit in the appeal, whereby the appellant has sought a child through surrogacy without following the procedures as enacted in the Surrogacy (Regulation) Act, 2021, which is hereby dismissed”, said the Court.

Accordingly, the High Court dismissed the appeal.

Cause Title- Akhilesh Kumar Das v. Rupam Das (2023:DHC:7288-DB)

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