Memorandum On Behalf of The Respondent

TEAM CODE: CN-23-I
3RD NATIONAL MOOT COURT COMPETITION 2023

CHRIST DEEMED UNIVERSITY, DELHI
BEFORE THE HON’BLE SUPREME COURT OF PERUCIA
IN THE MATTER OF:
Mr. ABRAM …PETITIONER
v.
Mr. SHASHWAT …RESPONDENT
MEMORIAL on behalf of RESPONDENT
Memorandum on behalf of the Respondent

3rd National Moot Court Competition 2023, Christ Deemed University, Delhi.
TABLE of CONTENTS
LIST OF ABBREVIATIONS………………………………..………………….. 3
INDEX OF AUTHORITIES………………………………….…………...…….4
STATUTES REFERRED……………………………………………….……….5
INTERNATIONAL CONVENTIONS AND OTHER RELATED DOCUMENTS.5
BOOKS REFERRED…………………………………………………...……....5
INTERVIEWS…………………………………………..…...……………….....5
WEBSITES REFERRED……………………………………………………….5
STATEMENT OF JURISDICTION……………………………………………6
STATEMENT OF FACTS………………………………......………………….7
ISSUES RAISED…………………………………………………………….....9
i. Whether the appeal is maintainable before the Supreme Court of Perucia?
ii. Whether the Surrogacy Contract was valid between Mr. and Mrs. Chopra and Ms.
Khan under the Surrogacy (Regulation) Act, 2021?
iii. Whether Abram stood adopted by Ms. Khan?
iv. Whether Abram has any right in the property of the Chopra’s?
SUMMARY OF ARGUMENTS………………..…………………...…...….....10
ARGUMENTS ADVANCED...………………………………………………..11
PRAYER……………………………………………………………………....27
Memorandum on behalf of the respondent

LIST of ABBREVIATIONS
Symbol Abbreviations
& And
AIR All India Report
Anr. Another
E.g., Exemplum Gratia
Govt. Government
H.C. High Court
Hon’ble Honorable
i.e., That is
M.P. Madhya Pradesh
Manu Manupatra
No. Number
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
UOI. Union of India
U.P. Uttar Pradesh
v. Versus

INDEX of AUTHORITES
CASE TITLE CITATION

Andrahennedige Dinohamy and Anr. v. AIR 1927 P.C. 185
Wijetunge Liyanapatabendige Balahamy
Chandrabhan v. Saraswati (2016) 2 AIRBomR 787
Delhi High Court in Union of India v. Hafiz AIR 1972 Delhi 102, 8 (1972) DLT 151.
Mohd
Hindustan Steel Ltd. vs. State of Orissa 1970 AIR 253 1970 SCR (1) 753 1969 SCC
(2) 627
Jan Balaz vs. Union of India CA No. 8714/2010
Lakshmi Kant Pandey v. Union of India 1984 AIR 469, 1984 SCR (2) 795
M/S. Pratap Chand & Sons vs. Union of
India 1981
Mohabbat Ali Khan v. Mohd. Ibrahim Khan (1929) 31 BOMLR
Mohinder Kaur v. Major Singh 1960 CriLJ 640
Kattukandi Edathil Krishnan & Anr. v.
Kattukandi Edathil Valsan & Ors SC (508) 1908
Parvathy Ammal v. Gopala Gounder And
Another 1956
Sheela Gehlot vs. Sonu Kochar & Ors 2005
Sivanandy v. Bhagwanthyamm AIR 1962 Mad 400
State Bank of India v. Sundara Money 1976 AIR 1111 1976 SCR (3)
Shri Somnath Radhakrishna more v. Smt.
Ujjawala Sudhakar Pawar 461 of 1995
Venkatacharyulu v. Rangacharyulu (1891) ILR 14 Mad 316

STATUES REFERRED
● The Indian Contract Act,1872

● The Surrogacy (Regulation) Act, 2021
● The Assisted Reproductive Technology (Regulation) Act, 2021
● The Indian Constitution
● Juvenile Justice Act 2015
● Special Marriage Act
BOOKS REFERRED
● AVTAR SINGH’S CONTRACT & SPECIFIC RELEIF (Rajesh Kapoor, Thirteenth
Edition).
● CONTRACT- I & II by R K BANGIA (8th Edition 2021).
● SURROGACY AND LEGAL FRAMEWORK IN INDIA by AKRITI SHAHI
INTERVIEWS
● https://www.youtube.com/watch?v=UI57cshSSYg Controversy on the new surrogacy

bill
https://youtu.be/llVRHwZICr0 A Human Rights Response to Commercial Surrogacy |
Dr Paula Gerber | TEDxStHildasSchool
https://youtu.be/7OlBHVKZzjgWe The People - the surrogacy debate; of motherhood

or money?
WEBSITES REFFERED
● www.scconline.com/
● www.lexisnexis.com
● www.manupatra.com
● https://indiakanoon.org
● https://advance.lexis.com/inresearchhome/

STATEMENT of JURISDICTION
The Respondent have the honour to submit before honour to submit before ,the Hon’ble
Supreme Court of Perucia , the memorandum of the respondent under Article 132 and 133(1)
of the Constitution of Perucia. The present memorandum sets forth the facts, arguments in the
present case.
Article 132 of the Constitution of India reads as follows:
Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases (1) An
appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court
in the territory of India, whether in a civil, criminal or other proceeding, if the High Court
certifies under Article 134A that the case involves a substantial question of law as t the
interpretation of this Constitution
(2) Omitted
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided Explanation For
the purposes of this article, the expression final order includes an order declaring an issue
which, if decided in favour of the appellant, would be sufficient for the final disposal of the
case.
An appeal from a High Court to the Supreme Court under Article 132 of the Constitution can
be maintained if it involves substantial question of law as to the interpretation of the
Constitution, and in exceptional cases, if the case involves a substantial question of law of
general importance.
Article 133(1) in The Constitution Of India 1949
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.

STATEMENT of FACTS
1) Surrogacy has become popular in the state of Perucia due to its affordability and
efficiency, with terms and conditions determined through contracts between parties.
2) Mr. and Mrs. Chopra, an infertile married couple, learned about the efficient surrogacy
process at the EBC Hospital in Cati and decided to pursue surrogacy.
3) Attempts to convince family members to act as surrogates failed, leading the couple to
seek a surrogate through the EBC Hospital.
4) After meeting with a doctor and being informed about the procedure, the couple agreed
to hire a surrogate.
5) EBC Hospital found a potential surrogate, Ms. Khan, a 32-year-old widow, who agreed
to carry the child after considering her financial situation. The couple received a
certificate of recommendation from the Board.
6) The couple and surrogate agreed on a compensation package including costs for
surrogacy, medical expenses, hospital visits, insurance, educational expenses, and
miscellaneous expenses.
7) surrogacy agreement was signed between intending parents (Mr. and Mrs. Chopra) and
the surrogate mother (Ms. Khan) with terms and conditions, including the requirements
for the surrogate to be of fit condition, to surrender the child after birth, and to follow
restrictions such as age and not consuming alcohol. The agreement was registered with
the office of registrar.
8) The agreement was signed with the terms mentioned, and payment was made. The
intending parents agreed to assist Ms. Khan beyond the contractual expenses.
9) The embryo was handled in the clinic and the same was transferred into Ms. Khan's
body, leading to her conception. The intending parents were informed.
10) Ms. Khan took maternity leave and focused on her physical and mental health. She
visited the hospital for check-ups and the intending parents frequently enquired about
her well-being.
11) At the latter half of the seventh month of pregnancy, Ms. Khan started feeling
emotionally attached to the child and felt fear about having to surrender it. She kept her
feelings to herself.
12) The intending parents conceived a child naturally, causing Ms. Khan's feelings for the
child within her to grow.

13) In the latter half of the eight months of pregnancy, Ms. Khan decided she could not give
up the child and felt bound by the obligations in the contract. She chose to abscond and
disappeared.
14) Ms. Khan in her last week of pregnancy writes a letter to the hospital and intending
parents (Mr. and Mrs. Chopra) informing them of her disappearance. She expresses her
guilt but states her love for the child and intention to raise it as her own. The letter was
sent by post.
15) Upon receiving the letter, Mr. and Mrs. Chopra searched for the woman (Ms. Khan)
but eventually discontinued the search due to fear of revealing their infertility and
surrogacy issues to the public.
16) Mrs. Chopra gives birth to a boy and names him Shashwat, while Ms. Khan gives birth
to a boy and names him Abram. Both families live in Sicily.
17) Abram becomes successful, obtaining the first rank in the Engineering Entrance Exam
of Perucia. He discovers that Mr. and Mrs. Chopra are his biological parents, but finds
out they died in a flight crash.
18) Abram stakes a claim in Mr. Chopra's properties as a successor but Shashwat shows the
letter written by Ms. Khan seeking the adoption of Abram and rejects Abram's claim.
19) Abram files a civil suit in the District Court of Cati seeking declaration that all self-
acquired property of Mr. & Mrs. Chopra belongs to him and possession. The Civil Court
framed the following issues:
20) Whether Plaintiff is a lawful issue of Mr. & Mrs. Chopra or is it Ms. Khan under the
ART Act & Surrogacy Act, 2021?
 Whether the contract for surrogacy was valid and enforceable?
 Whether clause (VI) of the contract for surrogacy a will of Mr. & Mrs. Chopra in favor of the
Plaintiff?
 Whether the contract for surrogacy stood repudiated by the parties?
 Whether the Plaintiff stood adopted by Ms. Khan through the conduct of the parties?
 Whether the Plaintiff has any stake in the properties of the Chopra’s, either by succession or by
will?
21) The civil court ruled in favor of Abram, but the decision was overturned by the High
Court of Cati, stating that the surrogacy contract was void. The High Court also stated
that Abram was adopted by Ms. Khan and had no right to the Chopra's properties. The
counsel of Abram obtained a certificate to appeal before the Supreme Court of Perucia
and the matter has now reached the Supreme Court.

ISSUES RAISED
1) WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE

SUPREME COURT OF PERUCIA?
2) WHETHER THE SURROGACY CONTRACT VALID BETWEEN

Mr. AND Mrs. CHOPRA AND Ms. KHAN UNDER THE
SURROGACY(Regulation) ACT, 2021?
3) WHETHER ABRAM STOOD ADOPTED BY Ms. KHAN?
4) WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF

THE CHOPRA’S?

SUMMARY of ARGUMENTS
1) WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE SUPREME
COURT OF PERUCIA?
This matter involves no substantial question of law. An appeal under Article 132,
133 can only be entertained if the case involves a substantial question of law of
general importance, and not an appeal from an interlocutory order or a pure question
of law. Right of appeal is not automatic. Right of appeal is conferred by statute.
When statute confers a limited right of appeal restricted only to cases which involve
substantial questions of law. The case is not maintainable as the substantial question
of law is ambiguous.
2) WHETHER THE SURROGACY CONTRACT VALID BETWEEN Mr. AND

Mrs. CHOPRA AND Ms. KHAN UNDER THE SURROGACY(Regulation)
ACT, 2021?
Financial Compensation is restricted Under the Surrogacy Regulation Act, 2021.
Commercial surrogacy, where the primary motive is financial gain, is strictly
prohibited under Indian law. Altruistic surrogacy is a form of surrogacy in which a
woman agrees to carry and give birth to a child for another person or couple, without
receiving any financial compensation. But, from the date of entering into the
contract Ms.Khan has been accepted for a price by Mr. And Mrs.Chopra along with
the funds for education of the surrogate mother’s first daughter making it a very
commercial one which is invalid under the Surrogacy Regulation Act, 2021
overreaching sec.2(b) of the act.
3) WHETHER ABRAM STOOD ADOPTED BY MS. KHAN?
It is being humbly contended before this Hon’ble court that Ms. Khan is the legal
guardian of Mr Abram as the he was being treated as the orphan, surrendered and
an abandoned child as per the Juvenile justice act the CARA guidelines.
4) WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF THE

CHOPRA’S?
It is being humbly contended before this Hon’ble court that Mr Abram does not get
any property from the Chopra’s as they are not the legal guardian and also with the
application of the Doctrine of factum valet.

ARGUMENTS ADVANCED
I. WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE

SUPREME COURT OF PERUCIA?
It is most humbly submitted before the Hon’ble Supreme Court of Perucia that this
appeal under Article 132 read along with Article 133(1) of The Indian Constitution
is not maintainable before this Hon’ble court.
This matter involves no substantial question of law.

The appeal is against an interlocutory order, rather than a final judgment.
The matter is not of public importance it only questions the personal property rights
and contract validity, it does not involve a substantial question of law of general
importance.
All the questions raised with regards to the case were answered by the High Court
and it is said to be sufficient, as the High Court has looked into the matter and has
decided the case with appropriate precedents and Indian legislations.
Article 133(1) in The Constitution Of India 1949:
(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
Article 133(1) also confers upon the Supreme Court the power to hear appeals from
“any judgment, decree or final order” only in a civil proceeding (subject to the High
Court granting a certificate), if the case involves (a) “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.” Article 132 (2) clarifies that
any party appealing may “urge as one of the grounds” in the appeal that “a
substantial question of law as to the interpretation of this Constitution has been

wrongly decided.” The three Judge-Bench of the Supreme Court had an occasion to
interpret Article 133(1) in State Bank of India v. Sundara Mone1y, (referred to as
Sundara Money case) in which the Court stated,
“A substantial question of law of general importance is a sine qua non to certify
fitness for hearing by the Supreme Court.”
While interpreting the term “needs to be decided by the Supreme Court”, the Court
in Sundara Money thereafter approvingly quoted the decision of the Delhi High
Court in Union of India v. Hafiz Mohd2. Said, the relevant portion of which reads
as under,
“… Further the word ‘needs’ suggests that there has to be a necessity for a decision
by the Supreme Court on the question, and such a necessity can be said to exist
when, for instance, two views are possible regarding the question and the High
Court takes one of the said views. Such a necessity can also be said to exist when a
different view has been expressed by another High Court.”
Chandrabhan v. Saraswati:3
In the Appeal before the High Court, there was no infirmity in the reasoning of the
First Appellate Court which called for interference. They also could not show that
any wrong inference had been drawn by the First Appellate Court from proved facts
by applying the law erroneously. There was no such infirmity in the reasoning of
the First Appellate Court which called for interference.
The Supreme Court, hence, held that there was no question of law and dismissed
the case on the grounds of lack of substantial questions.
It was also observed that,
“Right of appeal is not automatic. Right of appeal is conferred by statute. When
statute confers a limited right of appeal restricted only to cases which involve
substantial questions of law, it is not open to this Court to sit in appeal over the
factual findings arrived at by the First Appellate Court.”
1
1976 AIR 1111 1976 SCR (3)
2
AIR 1972 Delhi 102, 8 (1972) DLT 151.
3
(2016) 2 AIRBomR 787

Hindustan Steel Ltd. vs. State of Orissa4, (1972) the Supreme Court held that an
appeal under Article 132 can only be entertained if the case involves a substantial
question of law of general importance, and not an appeal from an interlocutory order
or a pure question of law.
M/S. Pratap Chand & Sons vs. Union of India5, (1981), the Supreme Court held
that an appeal under Article 132 can only be entertained if the case involves a
substantial question of law of general importance.
II. WHETHER THE SURROGACY CONTRACT VALID BETWEEN Mr.

AND Mrs. CHOPRA AND Ms. KHAN UNDER THE
SURROGACY(Regulation) ACT, 2021?
It is most humbly submitted before the Hon’ble Supreme Court of Perucia that the
contract entered between Ms.Khan (surrogate mother) and Mr. & Mrs. Chopra is
invalid.
The Contract entered is purely commercial in nature. Commercial surrogacy is

illegal in India under the legislation:
• The Surrogacy Regulation Act, 2021
Section 2 (g) of The Surrogacy Regulation Act, 2021- commercial surrogacy means
commercialisation 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.
4
1970 AIR 253 1970 SCR (1) 753 1969 SCC (2) 627
5
1981

Under the Surrogacy (Regulation) Bill, 2019, commercial surrogacy is defined as

"renting the womb" and is therefore banned. The bill allows only altruistic
surrogacy, where a close relative can act as a surrogate mother without receiving
financial compensation. Violation of this law can result in imprisonment and a fine.
Here, Financial Compensation is restricted Under the Surrogacy Regulation Act,

2021 in India, the following kinds of compensation are considered non-commercial
and allowed for surrogates:
• Reimbursement of medical expenses incurred during the surrogacy process
• Payment for loss of income during the period of surrogacy
• Payment for any insurance coverage taken for the surrogate.

These compensations are considered non-commercial because they are directly
related to the surrogacy process and are meant to cover expenses and support the
well-being of the surrogate during this period.
But, Commercial surrogacy, where the primary motive is financial gain, is strictly
prohibited under Indian law. Further, the intending parents were willing to assist
Ms. Khan over and beyond the contractual expenses, overreaching the scope of
altruistic surrogacy which clearly says that the contract is commercial in nature.
Where in the current scenario, The Contract clearly contains a clause which covers
the educational expense of Ms. Khan's eldest daughter. After deliberation and
owing to her financial crunch, Ms. Khan accepted the offer and was willing to carry
the child and Mr. and Mrs.Chopra were informed of this proposition, and they
willingly accepted Ms. Khan to be the surrogate mother which shows that Ms.Khan
has financial problems and the Chopras fund them which forms the basis of the
contract overreaching the rules of altruistic surrogacy defined under sec. 2(b) of the
Surrogacy Regulation Act, 2021.
The Actspecifies various conditions that need to be fulfilled by a surrogate mother

in order to be eligible for a surrogacy procedure. Upon fulfilling these conditions,
the surrogate mother may obtain an eligibility certificate from the appropriate
authority. One of the conditions to be proved is that the surrogate mother is a ‘close

relative’ of the intending couple who commissioned the surrogacy. Also, the term
surrogate mother is defined under section 2(zg) of the Surrogacy Regulation
Act,2021 which is :
“surrogate mother” means a woman who agrees to bear a child (who is genetically
related to the intending couple or intending woman) through surrogacy from the
implantation of embryo in her womb and fulfils the conditions as provided in sub-
clause (b) of clause (iii) of section 4 ((CITATION OF SECTION 4 (b)(iii)))
Here, it’s clearly mentioned that the surrogate mother is not a blood relative to the
couple. So, this provides that the contract is breaching the provisions of an act which
is in force and hence it’s considered invalid ab initio.
Apart from this there was Oral contract between Ms. Khan and Mr. And Mrs.
Chopra supports her financially, apart from the medical expenses.
An oral contract is valid in India under the Indian Contract Act, 1872, Section 2(e),
which defines a contract as "an agreement enforceable by law". According to this
act, a contract can be either written or oral, as long as it meets the essential elements
of a contract, which are:
• Offer and acceptance
• Consideration (payment or promise of payment)
• Intention to create a legal relationship
• Competent parties (of legal age and with capacity to enter into a contract)
• Lawful object and consideration
As long as these elements are present, an oral contract is considered valid and
enforceable under Indian law, though it is always recommended to have a written
contract for better clarity and evidence in case of any disputes.
Here the oral contract entered between Mr. And Mrs. Chopra and Ms. Khan satisfies
all the essentials of a valid Oral contract.
Sheela Gehlot vs. Sonu Kochar & Ors6 Delhi High Court observed that oral
agreements are valid and enforceable and there could be no dispute about it. Until
there is anything which needs to be written, an oral agreement will be enforced.
6
2005

Further for a contract, there has to be some proposal and acceptance. And for the
oral agreement, there should be some circumstances surrounding the alleged oral
agreement. No one can question the oral agreement as invalid.
Perucia has legalized only Altruistic surrogacy, and any surrogacy contract which
is not Altruistic and is commercial in nature will be void.
Section 2(b) of The Surrogacy (Regulation) Act defines "Altruistic Surrogacy"

means the surrogacy in which no charges, expenses, fees, remuneration or monetary
incentive of whatever nature, except the medical expenses and such other prescribed
expenses incurred on surrogate mother and the insurance coverage for the surrogate
mother, are given to the surrogate mother or her dependents or her representative;
Altruistic surrogacy in India is a form of surrogacy in which a woman agrees to

carry and give birth to a child for another person or couple, without receiving any
financial compensation.
There are many instances where the state has invalidated the surrogacy contract
which are commercial in nature.
Jan Balaz vs. Union of India7- In this case, the Delhi High Court declared
commercial surrogacy as illegal and against the dignity of women.
In its judgement, the court stated that: Whether commercial surrogacy involves
trafficking in human beings as it involves sale of a surrogate child, relinquishment
of the surrogate's parental rights for money and involves rent of the womb thus
violating Article 23 of the Constitution.
Indian Council for Child Welfare vs Union of India ((CITATION)): Commercial

surrogacy was considered as exploitation of women and child labor.
A comparative study of the ban on commercialization of organ transplantation and

surrogacy in India would involve looking at the legal framework relating to each
issue.
7
CA No. 8714/2010

In the case of organ transplantation, commercialization of organ transplantation is

banned in India under the Transplantation of Human Organs Act, 1994. The act
criminalizes the buying and selling of human organs and provides for punishment
of up to five years imprisonment and a fine.
In the case of surrogacy, commercial surrogacy is regulated in India under the
Surrogacy (Regulation) Act, 2021. The Act seeks to ban commercial surrogacy and
allow only altruistic surrogacy. The Act provides for the establishment of National
Surrogacy Board and State Surrogacy Boards to regulate surrogacy in the country.
In the case of surrogacy, there have been several cases challenging the regulation
of commercial surrogacy in India. The Indian courts have generally recognized the
need for regulation of surrogacy to protect the rights and welfare of surrogate
mothers, but have also emphasized the importance of ensuring access to surrogacy
services for individuals in need.
Overall, both the ban on commercialization of organ transplantation and surrogacy
in India reflect the need to balance the protection of individual rights and the
regulation of unethical practices in these fields.
Offences under this act are included and provided under section 40 of the Surrogacy
Regulation Act, 2021:
“Any intending couple or intending woman or any person who seeks the aid of any
surrogacy clinic, laboratory or of a registered medical practitioner, gynaecologist,
paediatrician, embryologist or any other person for not following the altruistic
surrogacy or for conducting surrogacy procedures for commercial purposes shall be
punishable with imprisonment for a term which may extend to five years and with
fine which may extend to five lakh rupees for the first offence and for any
subsequent offence with imprisonment which may extend to ten years and with fine
which may extend to ten lakh rupees”.
Here, the parties might be penalized under the above paragraph for failure to comply
with altruistic surrogacy as deemed appropriate by the court.
So from this, the basic objective of the Surrogacy Regulation Act is to prevent
exploitation happening under commercial surrogacy. The 2021 Act bans
commercial surrogacy and recognizes only altruistic surrogacy. Altruistic surrogacy
is where there is no remuneration paid to the surrogate apart from the expenses that

might be prescribed or incurred due to insurance coverage or medical expenditure.

But in this case, it’s from the date of entering into the contract Ms.Khan has been
accepted for a price by Mr. And Mrs.Chopra along with the funds for education of
the surrogate mother’s first daughter Alia making it a very commercial one.
All the above factors of the present case are sufficient enough to state that there
were elements present in the contract which is outside the scope of altruistic
surrogacy, which ultimately turns the contract nature to commercial.
Thus, the contract is invalid as it reaches the scope of commercial surrogacy.
III. WHETHER ABRAM STOOD ADOPTED BY Ms. KHAN?
It is being humbly contended before this Hon’ble court that MS. KHAN should be
treated as the legal guardian of Abram.
The questioning of whether there was an legal adoption or not, could only be
questioned on the grounds of the juvenile justice Act and CARA guidelines. It is
being contended before this honble court, that there might be no compliance of the
Juvenile justice act and the CARA guidelines which would render the act as legal
adoption by Ms Khan, but is being humbly contended before this Hon’ble court to
treat Ms khan as the legal guardian and the mother of Mr Abram and not the son
of Mr. and Ms. Chopra’s.
Under the Juvenile justice act, section 2 (14), has described the “child in need of
care and protection”:
(iii) who resides with a person (whether a guardian of the child or not) and such
person—
(a) has injured, exploited, abused or neglected the child or has violated any other
law for the time being in force meant for the protection of child;
under section 2 (14) (vi)who does not have parents and no one is willing to take
care of, or whose parents have abandoned or surrendered him;
firstly it could be noticed that the child has been neglected by Mr and Ms. Chopra
as they have not taken any efforts to find the surrogate mother who was pregnant
with their child. They have stopped their search within just two weeks of Ms khan

being ran away being pregnant with their biological child. This shows the
negligence of Mr and Mrs Chopra which have towards their biological child.
Secondly, it could be noticed from section 2 (14) (vi), the children whose parents
are not willing to take care of the child or whose parents have abandoned or
surrendered him are treated as the child in need of care and protection. It could be
noticed from the facts of the case, that Mr and Mrs Chopra were not willing to grow
the child, as the basic requirement of searching for their missing child has not been
performed. in order to have the willingness to grow the child, they must have
always prioritised the safety and the well-being of the child. If the interests of the
child was being kept in mind, they should’ve searched for the surrogate mother by
reaching out to the police station. The couple have primarily prioritised the social
image and also the consequences which they would face for following the invalid
procedure of the surrogacy over the safety and the well-being of the child.
Under the juvenile justice act, there are primarily three categories of children who
are eligible for adoption.
a. Under section 2 (1) of the juvenile act, the definition of the abandoned child is
being defined as: “abandoned child” means a child deserted by his biological or
adoptive parents or guardians, who has been declared as abandoned by the
Committee after due inquiry;
b. Under section 2 (60) of the juvenile justice act, the definition of surrendered
child is defined as : “surrendered child” means a child, who is relinquished by the
parent or guardian to the Committee, on account of physical, emotional and social
factors beyond their control, and declared as such by the Committee.
c. Under section 2 (42) of the juvenile justice act, the definition of the orphan is
defined as: orphan” means a child— (i) who is without biological or adoptive
parents or legal guardian; or (ii) whose legal guardian is not willing to take, or
capable of taking care of the child.
Firstly, Under section 2 (1) of the juvenile act, the abandoned child is being
described as the child who was deserted by his biological parents and who has been
declared as the abandoned child by the committee after the due enquiry. It could be
noted from the facts of the case, that the child has been deserted by the biological
parents may not in a express form but has definitely been deserted in an implied

form by biological parents as they have not taken the legal steps for searching their
child and by stopping even the personal search within 2 weeks.
Secondly, Under section 2 (60) of the juvenile justice act, the surrendered child has
been defined as the child who was relinquished by the parent on the account of the
social, emotional or the physical factors and declared as such by the committee. Mr
Abram could also treated as the surrendered child as Mr and Mrs Chopra have
relinquished their child for a simple social factor of them being celebrity and having
agreed for the illegal surrogacy procedure. They have been under the social pressure
of not being accepted by the public for the wrong committed which has primarily
led to relinquishing their relationship with the child.
Thirdly, Under section 2 (42) (ii) of the juvenile justice act, it has been explained
that orphan is a child whose guardian is not willing to take or capable of taking care
of the child. It could be noticed from the facts of the case that Mr and Mrs Chopra
are not willing to take care of the child from the moment they have stopped
searching for the surrogate mother after 2 weeks. The couple were always well
aware of the situation that even if the procedure in which the surrogacy were against
the law, the child would have been treated as their own. The couple could’ve
possibly faced the legal consequences of not following the legal provisions of the
surrogacy regulation act, but would’ve still got to treat the child as their own. This
shows the lack of willingness from the side of Mr and Mrs Chopra to take care of
the child.
The legal procedure that is being required for the valid adoption was not being
followed by Ms Khan under the Juvenile Justice act and the CARA guidelines but
it is being humbly contended before this Hon’ble court that the legal requirements
were not being fulfilled by Ms. Khan as she was emotionally attached to the child
and could not afford to lose the child.
In the case of, Lakshmi Kant Pandey v. Union of India8 it was being obsereved that
“Every child has a right to love and be loved and to grow up in an atmosphere of
8
1984 AIR 469, 1984 SCR (2) 795

love and affection and of moral and material security and this is possible only if the
child is brought up in a family. The most congenial environment would, of course,
be that of the family of his biological parents. But if for any reason it is not possible
for the biological parents or other near relative to look after the child or the child is
abandoned and it is either not possible to trace the parents or the parents are not
willing to take care of the child, the next best alternative would be to find adoptive
parents for the child so that the child can grow up under the loving care and attention
of the adoptive parents. The adoptive parents would be the next best substitute for
the biological parents."
3.1 religious text interpretation of the position of the surrogate mother.
The religious text of the Qur’an has been interpretated by different scholars on the
concept of the surrogacy and its validity. And one such aspect which has been
primarily questioned is that who would be treated as the mother of the child which
is born through the procedure of the surrogacy. The jurists hold that the wife who
gives birth to the child is the mother, citing the Qur’an: "none can be their mothers
except those who gave them birth"
The prophet Muhammad ( s. a. w. s.) is reported to have said “ the child is for the
bed. From this statement a general principal is laid down. A child, legitimate or
illegitimate, always stern from a mother. The mother is the one who gives birth to
the child. Therefore, the surrogate mother will naturally, truly and legally be the
mother of the child. The child would be considered illegitimate since the man has
not entered into an matrimonial contract with the surrogate mother who gave birth
to him/ her.
From the religious text, it could be noticed that, one way of interpretation believes
that the surrogate mother to be the mother of the child. In this way, the surrogate
mother should be treated as the legal guardian of the child. It is being humbly
contended before this Hon’ble court that, by applying the interpretation of the
religious texts, Ms. Kahn must be treated as the legal guardian of the Abram.

IV. WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF THE

CHOPRA’S?
It is being humbly contended before this Hon’ble court that, Mr Abram has no rights
in the property of the Chopra’s. As it could derived from the arguments advanced
from the previous issue that Ms. Khan is the legal guardian of Mr. Abram, he could
not treated as the child of the Chopra’s and wouldn’t be inheriting any property of
theirs.
DOCTRINE OF FACTUM VALET.

The factum valet means the act which should not be done is valid when it is done.
The hundreds of text does not deny the fact. In other words, if the act is
accomplished and eventually completed, the action will be considered lawful and
binding. It is originated from the Roman maxim “Factum Valet Quod Fieri Dabuit”.
APPLICATION OF DOCTRINE OF FACTUM VALET IN CHILD

MARRIAGES.
The doctrine of factum valet is being often used in the cases of the child marriages.
Judicial decisions have also contributed in the survival of the practice of child
marriage till
the present day in India. Except for a few judgements, there have been instance
where the
judiciary has approved of the validity of child marriage. There has been cases where
the child marriages have been held valid by the application of doctrine of factum
valet.
There are number of cases where the Doctrine of Factum valet was being applied
in the case of child marriage.
Venkatacharyulu v. Rangacharyulu9, this is an example of a judgement where the

judiciary upheld the validity of a child marriage. Here the judgment held that a
marriage is
9
(1891) ILR 14 Mad 316

not mere a contract and that even if the person married is a minor or is of unsound
mind
the marriage will be held valid if the marriage rites are duly solemnized.
This position was cleared in the case of Sivanandy v. Bhagwanthyamm10 where the
madras high court pointed out that even though child marriage is prohibited by the
Child Marriage Restraint Act they cannot be rendered as invalid. It was held that
the marriage of a minor where the rites were duly solemnized was not in
contravention of any provision, the bench in the obitor said that the scope of validity
of marriage is well beyond that provisions of the act.
In further observation the bench held that:

"A minor's marriage without consent of the guardian can be held to be valid on the
application of the doctrine of factum valet". This is an example of how the doctrine
of factum valet is relied upon by the judiciary to accord for the validity of a child
marriage.
In Mohinder Kaur v. Major Singh11 the Punjab and Haryana high court held that
"The solemnization of a child marriage is not a bar to a claim for restitution of
conjugal rights."
In all the cases that has been mentioned above, they have validated the child
marriage that has been done with the application of the doctrine of factum valet.
This shows that once even though an act has been done which is in contrary to the
rules that has been given under the Juvenile justice act and CARA guidelines, since
Ms Khan has bought up the child as her own, she should be treated as the legal
guardian of the child and Abram would not be entitled to any property of Mr. and
Mrs. Chopra.
APPLICATION OF THE DOCTRINE OF FACTUM VALET IN LIVE IN

RELATIONSHIP/ CO HABITATION OF THE COUPLES.
10
AIR 1962 Mad 400
11
1960 CriLJ 640

In Kattukandi Edathil Krishnan & Anr. v. Kattukandi Edathil Valsan & Ors,12 it
has been held that “the documents and evidence on record would show the long
duration of cohabitation between Damodaran and Chiruthakutty as husband and
wife. The defendants have failed to rebut the presumption in favour of a marriage
between Damodaran and Chiruthakutty on account of their long cohabitation. In the
circumstances, the High Court was not justified in setting aside the said judgment
of the Trial Court. Resultantly, the appeals succeed and are accordingly allowed.”
The supreme court had stated that- if a man and a woman live together for long
years as husband and wife, there would be a presumption in favour of wedlock.
Such a presumption could be drawn under Section 114 of the Evidence Act.
Although, the presumption is rebuttable, a heavy burden lies on him who seek to
deprive the relationship of legal origin to prove that no marriage took place.
In Andrahennedige Dinohamy and Anr. v. Wijetunge Liyanapatabendige Balahamy
and Ors 13, the Privy Council laid down the general proposition as under:
“…where a man and woman are proved to have lived together as man and wife, the
law will presume, unless the contrary be clearly proved, that they were living
together in consequence of a valid marriage and not in a state of concubinage.”
In Mohabbat Ali Khan v. Mohd. Ibrahim Khan14 , once again it was laid down by
the Privy Council as under:
“The law presumes in favour of marriage and against concubinage, when a man and
a woman have cohabited continuously for a number of years.”
There has been an clear inclusion of the doctrine of the doctrine of factum valet.
The court has validated the co habitation of the couple for a long period of time
without there being a valid performance of the marriage by registration , then the
same could be applied in the present case of adoption where even though there has
been an lack compliance of the rules with regard to the adoption, it is being humbly
12
SC (508) 1908
13
AIR 1927 P.C. 185
14
(1929) 31 BOMLR

contended before this Hon’ble court that, Ms. Khan must be treated as the legal
guardian of the child though the application of doctrine of Factum valet.
APPLICATION OF THE DOCTRINE OF FACTUM VALET IN CERMONIES

VALIDATING THE MARRIAGES.
In Parvathy Ammal v. Gopala Gounder And Another15,
The court held that- There is no decision which says that merely because of the
omission to do the Sapthapathi, when another equally essential thing like tying the
thali has been done, the marriage between the parties should be held invalid.
Here the question is whether it can be said that the marriage between the petitioner
and the respondent is a valid one. It is true that according to Shastraic rites as en-
joined by Manu, an essential part of marriage among Hindus (the petitioner and the
respondent are undoubtedly Hindus) is Sapthapathi, but in the community to which
the petitioner and the respondent belong, the tying of thali is equally an essential
thing. Though ceremonies like Vigneswara pooja, kalasa pooja and Mangalya pooja
were performed and then the thali was tied, the fact that Sapthapathi was not done
will not, in the opinion of the court , render the marriage invalid.
Again, in this case, it could be noticed that the court believed that, even though the
essential religious ceremony of sapthapathi has not been, the marriage between the
couple is still a valid one. There has been the implication of the doctrine of factum
valet as although an act which is wrong has been committed, it could still be made
valid.
The similar application of doctrine of factum valet is to be applied where even

though there has been no legal adoption by Ms khan of Mr Abram, she should still
be treated as the legal guardian of Mr. Abram as she has been taking care of the
child for so long as her own by providing good education, physical and mental well
being.
15
1956

With reference to the application of the Doctrine of factum valet, it is being humbly
contended before this Hon’ble court that Ms Khan should be treated as the legal
guardian of Mr Abram. With this application, it is being humbly contended before
this Hon’ble court that since Mr. and Mrs Chopra cannot be considered as the legal
guardian of Mr Abram, he would not be entitled to any rights in the property as he
could no longer be treated as the legal heir of the Chopra’s. As he is not the legal
heir of Mr and Mrs Chopra he would not entitled to any property of the Chopra’s
under the Hindu sucession Act.
In the case of Shri Somnath Radhakrishna more v. Smt. Ujjawala Sudhakar Pawar16
, it has been held that the adopted child would not have any rights over the property
of the natural parents. The case pertains to a joint Hindu family from Nashik, where
family-head Ramachandra Mahale had given away his eldest son Radhakrishna to
More family. Ramchandra has two more sons Trimbak and Digambar. During the
course of time, Digamber died and Trimbak too died later leaving behind his wife
and daughter. Somnath, son of Radhakrishna, claimed a share in the property jointly
owned by the Mahale family. The high court, however, held that Radhakrishna and
Somnath do not have right to claim share in the property belonging to their
biological family since Radhakrishna was given away in adoption. Justice Bhatkar
said "family is not defined under Hindu Succession Act. Thus, who can be a
member of the family is not described by the statute. Therefore, the court has to
determine position of Ramachandra in view of his legal status only".
Hence, in the light of the above arguments it is clear that has no right in the property
of the chopra’s.
16
461 of 1995

PRAYER
In light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that
this Hon’ble Court be pleased to hold, adjudge and declare that:
1. The Appeal is not maintainable under Section 133(1) in the Supreme Court of Perucia
2. The Contract entered between Mr. and Mrs. Chopra and Ms. Khan is not Valid because
of its commercial Nature.
3. Abram Stood adopted by Ms. Khan
4. Abram does not have any Property rights over Mr. and Mrs. Chopra’s property.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
All of which is humbly prayed
Counsels on behalf of the respondent


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TEAM CODE: CN-23-I

3RD NATIONAL MOOT COURT COMPETITION 2023

BEFORE THE HON’BLE SUPREME COURT OF PERUCIA

IN THE MATTER OF:

Mr. ABRAM …PETITIONER

Mr. SHASHWAT …RESPONDENT

MEMORIAL on behalf of RESPONDENT

Memorandum on behalf of the Respondent

Memorandum on behalf of the respondent

Memorandum on behalf of the respondent

CASE TITLE CITATION

Memorandum on behalf of the respondent

● The Indian Contract Act,1872

● https://www.youtube.com/watch?v=UI57cshSSYg Controversy on the new surrogacy

https://youtu.be/7OlBHVKZzjgWe The People - the surrogacy debate; of motherhood

Memorandum on behalf of the respondent

Article 132 of the Constitution of India reads as follows:

Article 133(1) in The Constitution Of India 1949

Memorandum on behalf of the respondent

Memorandum on behalf of the respondent

Memorandum on behalf of the respondent

1) WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE

2) WHETHER THE SURROGACY CONTRACT VALID BETWEEN

3) WHETHER ABRAM STOOD ADOPTED BY Ms. KHAN?

4) WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF

Memorandum on behalf of the respondent

2) WHETHER THE SURROGACY CONTRACT VALID BETWEEN Mr. AND

4) WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF THE

Memorandum on behalf of the respondent

I. WHETHER THE APPEAL IS MAINTAINABLE BEFORE THE

This matter involves no substantial question of law.

Article 133(1) in The Constitution Of India 1949:

Memorandum on behalf of the respondent

Memorandum on behalf of the respondent

II. WHETHER THE SURROGACY CONTRACT VALID BETWEEN Mr.

The Contract entered is purely commercial in nature. Commercial surrogacy is

Memorandum on behalf of the respondent

Under the Surrogacy (Regulation) Bill, 2019, commercial surrogacy is defined as

Here, Financial Compensation is restricted Under the Surrogacy Regulation Act,

• Payment for loss of income during the period of surrogacy

• Payment for any insurance coverage taken for the surrogate.

The Actspecifies various conditions that need to be fulfilled by a surrogate mother

Memorandum on behalf of the respondent

Memorandum on behalf of the respondent

Section 2(b) of The Surrogacy (Regulation) Act defines "Altruistic Surrogacy"

Altruistic surrogacy in India is a form of surrogacy in which a woman agrees to

Indian Council for Child Welfare vs Union of India ((CITATION)): Commercial

A comparative study of the ban on commercialization of organ transplantation and

Memorandum on behalf of the respondent

In the case of organ transplantation, commercialization of organ transplantation is

Memorandum on behalf of the respondent

might be prescribed or incurred due to insurance coverage or medical expenditure.

III. WHETHER ABRAM STOOD ADOPTED BY Ms. KHAN?

Memorandum on behalf of the respondent

Memorandum on behalf of the respondent

Memorandum on behalf of the respondent

3.1 religious text interpretation of the position of the surrogate mother.

Memorandum on behalf of the respondent

IV. WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF THE