Internal Moot Court Competition, 2022

INTERNAL MOOT COURT COMPETITION

AMITY UNIVERSITY DUBAI, 2022

In the Honorable District Court of New Delhi

CASE NO. ___/2020

HARI
(Petitioner)

v.
DEVANSHI
(Respondents)

Memorial on Behalf of the Respondents

Memorial on Behalf of the Respondents

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TABLE OF ABBREVIATIONS

ABBREVIATION EXPANSION
AIR All India Reporter
& And
Anr. Another
Att. Attains
b/w Between
Doct. Doctrine
e.g. Example
HC High Court
HMA Hindu Marriage Act
Hon’ble Honorable
Ors. Others
Sec. Section
SC Supreme Court
SCC Supreme Court Cases
Para. Paragraph
U/s Under Section(s)
v. Versus

TABLE OF CONTENTS

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TABLE OF CASES...................................................................................................................................4
INDEX OF AUTHORITIES.....................................................................................................................5
BOOKS:.................................................................................................................................................5
WEBSITES:...........................................................................................................................................5
STATUTES............................................................................................................................................5
STATEMENT OF FACTS........................................................................................................................6
STATEMENT OF JURISDICTION........................................................................................................8
STATEMENT OF ISSUES.......................................................................................................................9
SUMMARY OF ARGUMENTS.............................................................................................................10
ARGUMENTS ADVANCED..................................................................................................................11
I. WHETHER THERE ARE VALID GROUNDS FOR GRANTING THE DIVORCE?.................11
1.1 Grounds of Divorce.....................................................................................................................11
1.2 SECTION 13(1A)(i) – Nin compliance with decree of Judicial Separation.................................17
II. WHETHER DEVANSHI IS ELIGIBLE FOR RESTITUTION OF CONJUGAL RIGHTS?....17
2.1 Presence of a legal marriage between the two parties............................................................18
2.2 Withdrawal of one spouse from the society of the other without any reasonable cause.........19
2.3 Devanshi did not leave the Society of Hari............................................................................20
III. WHETHER DEVANSHI IS ELIGIBLE FOR THE CUSTODY OF THE CHILD?.................20
3.1 Indented mother is considered as the biological mother of the surrogate child and there is no
rights for the surrogate mother on the baby.......................................................................................21
3.2 Verbal agreement being a valid contract................................................................................22
PRAYER..................................................................................................................................................24

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TABLE OF CASES

CASES CITATION

Joseph Shine Vs Union of India 2018 SCC OnLine SC 1676.

Captain (Now Major) Rajinder Pal ... vs Mrs. Manjit Kaur (1990) 97 PLR 445
Bajwa

Vikram Vohra Vs Shalini Bhalla AIR 2013 RCR 95.

Suvarna V Ratnakar Vinayak Shet AIR 1986 DM 225

Santosh Kumar Pandey v. Ananya Pandey AIR 2013 Chh 95.

Sushila Bai v. Prem Narayan AIR 1986 MP 225

Shanti Devi vs Ramesh Chandra AIR 1969 Pat 27

Smt. Harvinder kaur v. Harmander Singh Choudhry, AIR 1984 Delhi 66, ILR 1984
Delhi 546, 1984 RLR 187.

Nanak Builders and Investors Pvt. Ltd Vs. Vinod Kumar AIR 1991 Delhi 315
Alag .

Alka Bose Vs Parmatma Devi & Ors. (Civil Appeal Nos. 6197 of
2000)

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INDEX OF AUTHORITIES

BOOKS:

1. The Hindu Marriage Act, 1955 (Paperback, Asia Law House)

2. The Hindu Marriage Act, 1955 [2020 Edn]
3. Indian Constitutional Law Book by Mahabir Prashad Jain and Ruma Pal

WEBSITES:

1. http://www.manupatrafast.com/
2. http://www.indiankanoon.com/
3. https://www.scconline.com/
4. https://www.casemine.com/
5. https://www.legitquest.com/

STATUTES:

1. Hindu Marriage Act, 1955

2. Constitution Of India, 1950
3. The Surrogacy (Regulation) Act, 2021

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STATEMENT OF FACTS

Hari a Hindu software engineer by profession, married Devanshi in the year 2000 who at that
time was doing her MBBS but at the request of her father she married Hari. Their marriage took
place as per the Hindu rites and traditions as per the Hindu Marriage Act 1955. Hari soon
received a promotion in his company and was doing well, while she was mentally harassed by
her in-laws by asking her to skip her classes and making her do all the house-work. Few years
into Marriage, Hari got promoted to a senior level position in a company in the United States of
America, by that time Devanshi had also completed her education and she landed with a resident
position, but due to her family’s conservative nature she had to quit her job. On reaching Silicon
Valley in 2003 Devanshi couldn’t practice in the USA unless she clears her US medical Board
Exam. The cost of her course was beyond her financial capacity so the husband insisted she
asked her widowed mother for the same.

Over the next few years Devanshi lands a job in a hospital. With her life getting a bit stable she
decided to soon start planning a child, to which Hari immediately disagrees, stating they are not
financially ready. Over the next couple of years, having settled in properly, they begin their
attempts at starting a family which somehow doesn’t work out for them. They seek medical help,
which yields no results for them. The family then travels to India and get their child born through
surrogacy. In 2013 after arriving in India, after much perusal Hari and Devanshi find a surrogate
candidate that both of them approve of. In February, an artificial fertilization was carried out on
the surrogate mother Ms. Vineetha. At the time the fertilization procedure was being executed it
was decided, verbally, between Hari, Devanshi and Vineetha that Vineetha would have no right
over the child. Also, that she would have no access to the child any time in the future. Thereafter
Hari and Devanshi returned to the USA. In 2014, a baby girl was born to the surrogate mother in
New Delhi and both Hari and Devanshi returned to India. Having been born a few weeks
premature the doctors advise the parents that the baby should not be made to travel for the first
few months. Devanshi leaves for the USA as she is required to join back at work. Whereas Hari
stayed back in New Delhi with Vineetha, as he is allowed to work from home. While acting as a

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primary caregiver for Vineetha and his daughter, Hari ends up spending most of his time with
both of them. This eventually leads to Hari and Vineetha getting attached to each other’s
company and they soon get involved in a romantic relationship. As Hari’s relationship with
Vineetha develops, his emotional dependence on Devanshi starts fading and he starts ignoring
her phone calls and messages. Devanshi senses the change in his behavior and can deduce that
something is wrong. She decides to visit India to meet their daughter and clarify things with
Hari. On arrival at the airport Hari doesn’t come to pick her up and upon reaching her in laws
home she finds out that Vineetha has moved into their home to provide the best care for the
child. This revelation leaves Devanshi very disturbed as she feels betrayed not only by Hari but
his entire family. In the following days she tries to clarify things with Hari about the change in
his behavior. This leads to heated arguments and fights between them. Hari reaches the
conclusion that the relationship he had with Devanshi was now over. In the meantime, Vineetha
claimed that she did not want to give up custody of the child as she had become emotionally
attached to the child.

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STATEMENT OF JURISDICTION

The Hon’ble Court has the jurisdiction to try the instant matter under Section 9 of Code
of Civil Procedure 1908 (CPC).

Section 9 of the Code of Civil Procedure (CPC), 1908:

“Courts to try all civil suits unless barred: -

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all Suits
of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.
Explanation I- As suit in which the right to property or to an office is contested is a suit
of a civil nature, notwithstanding that such right may depend entirely on the decision of
questions as to religious rites or ceremonies.

Explanation II- For the purposes of this section, it is immaterial whether or not any
fees are attached to the office referred to in Explanation I or whether or not such office
is attached to a particular place.

(2) Notwithstanding anything contained in Sub-section (1), at the hearing of any

such application, the Court may grant such interim relief as it may consider
necessary, pending determination by it of the preliminary issue as to be
jurisdiction.”

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STATEMENT OF ISSUES

ISSUE I.

WHETHER THERE ARE VALID GROUNDS FOR GRANTING THE DIVORCE?

ISSUE II.

WHETHER DEVANSHI IS ELIGIBLE FOR RESTITUTION OF CONJUGAL RIGHTS?

ISSUE III.

WHETHER DEVANSHI IS ELIGIBLE FOR THE CUSTODY OF THE CHILD?

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SUMMARY OF ARGUMENTS

1. Whether there are valid grounds for granting the divorce?

It is humbly submitted upon this hon’ble court that there are no valid grounds for granting
divorce to the wife as no essential requirements necessary for divorce were fulfilled by Hari, the
requirements / essentials being Adultery, spread of venereal diseases, desertion etc. as per Sec 13
of Hindu Marriage Act.

2. Whether both the parties are eligible for restitution of conjugal rights?

It is most humbly submitted before this Hon’ble Court that both the parties to the case are
eligible for restitution of conjugal rights due to the fact that the essential conditions to be fulfilled
for restitution of conjugal rights under section 9 of the Hindu Marriage Act 1955 has been
satisfied in this case.

3. Whether Devanshi is eligible for the custody of the child?

It is also submitted to the hon’ble court that Mrs. Devanshi is entitled to receive the custody of
her child apar during this matrimonial proceedings and Ms. Vineetha should not be given the
custody of the on the basis of mere emotional connection as she is not the biological mother and
as a surrogate mother, she is legally obliged to give up the custody of the child once being born
to the biological parent.

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ARGUMENTS ADVANCED

I. WHETHER THERE ARE VALID GROUNDS FOR GRANTING THE

DIVORCE?

1. According to Section 13 of Hindu Marriage Act a person is liable for divorce in the
following circumstances
 Venereal Diseases
 Cruelty
 Conversion
 Renunciation
2. Since in this particular case Mr. Hari was not away from his wife for a period of 2 years,
nor did he fulfill the above-mentioned criteria, he would not be eligible for divorcing his
wife.
3. Sec - 13 also talks about the right of restitution conjugation of marital rights, which her
wife duly deserves from him. If he wanted to divorce his wife then he should have told
this in the beginning of his affair with Ms. Vineetha.

1.1 Grounds of Divorce

I.1.1 ADULTERY- Section 13(1)(i)

4. Adultery means voluntary sexual intercourse outside lawful wedlock. It is for the
petitioner to prove that there was a lawful marriage and that the respondent had sexual
intercourse with a person other than him/her. Marriage must be subsisting at the time of
the act.
5. The Supreme Court in Joseph Shine Vs Union of India 1 ruled that adultery is not a crime
and struck down section 497 IPC. It was observed that two individuals may part if one
cheat but to attach criminality to infidelity is going too far. Adultery is a personal matter
and how a couple deals with it is a matter of privacy at its pinnacle. This loss of moral

1
2018 SCC OnLine SC 1676.
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commitment in marriage which creates a dent in the relationship has been left for the
personal call of the couple. If they wish to, they can proceed with the divorce.

1.1.2. CRUELTY- Section 13(1) (ia)

6. Treating the petitioner with cruelty after the solemnization of marriage is a ground for
divorce. Cruelty can be both physical and mental. Physical beating or causing bodily
injury to the spouse amounts to physical cruelty. Physical cruelty is easy to determine. It
is difficult to say what constitutes mental cruelty. Cruelty is also an offense under section
498A IPC

Essentials-

 The conduct complained of should be “grave and weighty”

 The petitioner spouse cannot be reasonably expected to live with the other spouse.
 It must be something more serious than “ordinary wear and tear of married life”

7. The major landmark case pertaining to cruelty and false accusation of adultery is that of
Captain (Now Major) Rajinder Pal ... vs Mrs. Manjit Kaur Bajwa2 on 18 October, 1989
8. The acts attributed by the appellant to respondent-wife resulting in cruelty towards him
were making of sarcastic remarks by her and her mother, "he is short stature and of black
complexion". She did not visit the appellant while he was confined in hospital in August,
1981, when he needed her company the most and rather she asked him for divorce. She
imputed false allegations and made character assassination against the appellant. She
wrote a letter/ complaint to the Chief of the Army staff, making averments which were
false to her knowledge viz. that the appellant had illicit relations with a Mizo girl named
Limmi had taken her out of Mizoram in a Government vehicle without the permission of
the authorities and was living with her in adultery at Amritsar. It was falsely attributed to
the appellant that he had taken away the ornaments and other household goods. In the

2
(1990) 97 PLR 445
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complaint to the Chief of the Army Staff, investigation as well as action against the
Appellant for his leading an adulterous life was sought. Further a request for return of the
goods and deduction of maintenance from his salary and its remission to her, was made.
9. The respondent apart from various other legal pleas taken, controverted the grounds as
well as the facts averred. Cordial relations up to April 1981, as well as the birth of the s6n
were admitted. The desertion on her part was denied. She offered herself to live with the
appellant. She claimed that on his visit in March, 1982 to Kapurthala, during his joining
time, his behavior and attitude towards her was indifferent. Subsequently, he came with a
Mizo girl in the house. On inquiry about that girl by her, she was turned out of the house.
She was forced to live with her widowed mother. She had no option but to claim
maintenance allowance and in order to claim the same, a complaint was made to the
Chief of the Army Staff. She further claimed that the allegations in the complaint were
based on information and knowledge. The Army authorities got satisfied and granted her
maintenance.
10. Demand for dowry is also seen as a cruelty towards the spouse generally the wife.
According to Dowry prevention Act 1961, it is illegal for the husband or his family to ask
for dowry, demand for dowry can act as a very strong ground for divorce.
11. Other factors considered essential for granting of divorce are that of abuse by an
alcoholic partner, where, impotency of either the husband or the wife, the immoral
character of either of the spouses immoral life of partner involves gambling done by the
partner, or cheating done by the partner, non-consummation also accounts for cruelty in
marriage.

1.1.3. DESERTION- Section 13(1) (ib)

12. It can be simply understood to mean abandoning a spouse. As per section 10(1) of HMA,
divorce can happen if the petitioner had been deserted for a continuous period of two
years immediately after preceding the presentation of the petition. After hearing both
sides, SC while dealing with the issue of desertion observed that desertion means the
intentional abandonment of one spouse by the other without the consent of the other and

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without a reasonable cause. Court stated that “the deserted spouse must prove that there is
a factum of separation and there is an intention on the part of deserting spouse to bring
the cohabitation to a permanent end. In other words, there should be animus deserendi on
the part of the deserting spouse. There must be an absence of consent on the part of the
deserted spouse and the conduct of the deserted spouse should not give a reasonable
cause to the deserting spouse to leave the matrimonial home.” This is also termed as
factum of separation meaning that there should be a solid ground for separation, also
there should be Animus Deserendi, i.e., intention to desert on the part of the spouse, then
there is desertion which is done without any reasonable cause, if desertion is made
without the consent of either spouse that is either husband or wife. For desertion to come
into effect the minimum period is that of Also the desertion made by one spouse should
be without the consent of divorce, if these criteria of desertion only then can file for
divorce.
13. An important case –law focusing on desertion is that of Suvarna vs Ratnakar Vinayak
Shet on 6 July, 2011 is preferred by the wife challenging the order passed by the learned
Civil Judge (Senior Division), Sirsi, ranting a decree for judicial separation in a petition
filed for divorce by her husband, is also filed by her challenging the order passed by the
learned Civil Judge (Sr. Dn.), Sirsi, in dismissing her petition for restitution of conjugal
rights. The learned trial Judge did not club I., both the petitions and record common
evidence.
14. Sri Rathnakar, the petitioner-husband, on the date of filing of the petition was working as
a Clerk in Canara Bank, Haven Branch. On that day, Smt. Suvarna, the respondent-wife
was also employed in Corporation Bank at Haven Branch as a Clerk. Prior to the
marriage, the petitioner was working at Karehalli Branch at Hassan District. After
marriage, to live with the respondent, on his request, he was transferred to Haven.
15. The case of the Petitioner is that he married the respondent on 20.05.2001 at Sri
Gopalakrishna temple, Sirsi, in the presence of the elders of the family as per the rites and
rituals prevailing in the community. The petitioner is opposed to the mischief of dowry.
He did not receive any dowry at the time of marrying the respondent. From his money he
provided to the respondent all the day to day requirements in respect of gold ornaments

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required by the respondent. He lived with the I., respondent happily for a period of 1½
years. A daughter is born and she is named as Kum. Vidyashree. After the marriage he
has looked after the respondent with love and affection. She went to her parent's house
for confinement. Thereafter, on her return to the petitioner's house, she started harassing
him and his aged mother, who was suffering from Cancer by non-co-operation. Petitioner
advised the respondent, but she started quarrelling with him and his mother on small
matters. Even though petitioner requested the respondent to adjust, she has not cared for
his suggestion. She insisted that petitioner's mother should be sent back to her native
place. then only she would live with him. Petitioner sent his mother back to Santagal
village in Kumta Taluk. Even then the respondent is not co-operating with the petitioner
in performing her marital obligations and she has neglected the petitioner. Subsequently,
respondent stopped doing household work. Without informing the petitioner she used to
be away from the house. She was going to her native Vt place, i.e., Sirsi. She was
behaving according to her whims and fancies. She has shown disrespect to the petitioner.
She left her daughter Kum. Vidyashree in her native place. When petitioner objected to
the same, she threatened to live separately. Respondent was taking care of her relatives
very well. But if the petitioner's relatives came to the house, she was not taking care of
them. Though respondent was given sufficient opportunity to correct and mend her
behavior, there is no improvement. Petitioner has made attempts to adjust to this attitude
of the respondent for the purpose of leading a peaceful marital life and also in the interest
of his loving daughter. However, respondent is not extending the marital happiness to the
petitioner. Every day the respondent quarrels with the petitioner. She makes accusations,
humiliations and talks to him in a very improper manner. She would remove her
Mangalsutra and throw it. Still the petitioner tolerated her. Though she was quarreling
with the petitioner and going to her parental house, he had gone and brought her back to
his house. However, the respondent is indulging in her old habits, she humiliates the
petitioner, behaves improperly with him, and uses bad words against him. Despite it, to
maintain the family name, he has left his ailing mother, who is suffering from Cancer and
left other members of the family and attempted to live with the respondent. Respondent
has prevented the petitioner from having the company of his loving daughter. She has

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denied to the petitioner his daughter's love and affection. Despite the same petitioner has
shown patience and has attempted to live with her. Respondent everyday did not cook
food, she did not attend to the petitioner's daily needs, she has neglected the petitioner.
She behaves according to her whims and fancies. Without the knowledge of the
petitioner, she goes to her parental house, when questioned, respondent told the petitioner
that there is no relationship between them, she does not like him, she wants to leave him
and live in her parents' house, she did not need him and so saying she removed the at
Mangalsutra and quarreled with the petitioner and wanted to leave him. When the
petitioner was not in the house, she has taken away all the gold ornaments from the house
on 27.12.2003 to her parental house. From that day onwards the petitioner is living alone
being dejected in life.

1.1.4. CONVERSION- Section 13(1)(ii)

16. If any spouse ceases to be Hindu and converts into another religion without the consent
of the other spouse, a divorce can be granted.

1.1.5. INSANITY-Section 13(1)(iii)

17. There are two requirements of insanity as a ground of divorce- The respondent has been
of incurable unsound mind or Respondent suffering continuously or intermittently from
mental disorder of such a kind or extent that it would not be reasonable for the petitioner
to continue living with the respondent.

1.1.6 VENEREAL DISEASE –Section 13(1)(v)

18. A sexually transmitted disease that is incurable and transmittable forms a ground of
divorce, if either of the spouses is suffering from any such disease. A disease like AIDS
is called venereal disease, as neither the husband nor the wife suffered from any venereal
disease, Hari would not be entitled to a divorce.

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1.1.7 RENUNCIATION -Section 13(1)(vi)

19. When one of the spouses decides to renunciate the world and enters a holy order, then the
other spouse can file a divorce petition. Renouncement of the world by entering any
religious order must be absolute. It amounts to civil death and has the effect of excluding
a person from inheritance and the right to partition.

1.1.8 PRESUMPTION OF DEATH- Section 13(1)(vii)

20. If a person has not been heard of as being alive for at least seven years, by those persons
who would naturally have heard of it, had that party not been alive, this is a legal
presumption of death. This presumption may be rebutted if a person has not been heard of
for the last 7 years due to special circumstances such as absconding on a charge of
murder.

1.2 SECTION 13(1A)(i) – Nin compliance with decree of Judicial Separation

21. If there has not been any resumption of cohabitation between the couple even after one
year has elapsed since the passing of the decree for judicial separation, a spouse can
present a divorce petition. Resumption of cohabitation simply means living together in a
conjugal relationship.
22. The court will grant a decree for divorce under 13(1A) if there is no bar as laid down in
section 23 of HMA.
23. Since clearly any of these requirements for the divorce was not fulfilled by the husband
Hari, and as per the clause the surrogate mother will not retain the right over the child
, she just had the duty of deliver the child which also she did not fulfill I instead
she started having romantic relations with the husband of Devansi, thus causing her much
mental agony and pain.

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II. WHETHER DEVANSHI IS ELIGIBLE FOR RESTITUTION OF CONJUGAL

RIGHTS?

24. It is humbly submitted upon this hon’ble court that Devanshi is eligible for restitution of
Conjugal rights as per Section 9 of the Hindu Marriage Act, 1955.
25. Section-9, Hindu Marriage Act, 1955 provides for the Restitution of Conjugal Rights
wherein it provides relief to the party if one spouse withdraws from the society of other
for no reasonable cause. It states as follows:

Restitution of conjugal rights.

When either the husband or the wife has, without reasonable excuse, withdrawn from
the society of the other, the aggrieved party may apply, by petition to the district
court, for restitution of conjugal rights and the court, on being satisfied of the truth of
the statements made in such petition and that there is no legal ground why the
application should not be granted, may decree restitution of conjugal rights
accordingly.

[ Explanation: Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the
person who has withdrawn from the society.]

26. For restitution the following three conditions must be satisfied.

i. The respondent has withdrawn from the society of the petitioner without any
reasonable cause.
ii. The court is satisfied about the truth of the statement made in such a petition and
iii. There is no legal ground because the relief should not be granted.

II.1 Presence of a legal marriage between the two parties.

27. It is humbly submitted upon this Hon’ble court that the marriage between Hari and
Devanshi is legal in the eyes of law. As stated in the proposition, Hari and Devanshi’s

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marriage was solemnized in 2000 at New Delhi, as per Hindu rites and rituals under
Hindu Marriage Act 1955.
28. The sine qua non for maintaining an application under Section 9 is the existence of
relationship of husband and wife having no dispute in their existence of marriage
between them for seeking decree for restitution of conjugal rights.3
29. The numerous photographs and the testimony of the wedding are sufficient evidence to
establish the validity of the marriage. Devanshi also gave her consent to the marriage,
which strengthens its validity even though she was not ready to wed and only did so at
her father's request.

II.2 Withdrawal of one spouse from the society of the other without any
reasonable cause.

30. Law provides that when either husband or the wife withdraws from the society of the
opposite spouse, the aggrieved party may apply to the Court for a direction that the
opposite party should accept him or her. In the present scenario, the fact that Hari stayed
back in India alone does not suffice withdrawal, but the moment he started ignoring
Devanshi’s calls and texts is when actual withdrawal happened.
31. Furthermore, Hari's unwillingness to pick up his wife from the airport shows how the
emotional bond was weakening. The ensuing violent debates along with the development
of a romantic relationship between Hari and Vineetha clearly establish the reasons behind
Hari's desire to leave Devanshi society. Lastly, without even giving the marriage a
chance, Hari quickly decides that his relationship with Devanshi is over, which clearly
tell us how ignorant he is in trying to build the relationship.
32. If any of the party is guilty of any matrimonial misconduct, but that misconduct does not
form any ground for divorce under section 13 of the Hindu Marriage Act. Still, that
misconduct is grave and weighty; this may also be considered a reasonable excuse. As in
the current case, the misconduct from Hari is not of a nature, that is sufficient to provide
with Divorce, but still, it is not one to be ignored.

3
Santosh Kumar Pandey v. Ananya Pandey, AIR 2013 Chh 95.
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33. Also, an explanation has been appended to the section in the year 1976 which places the
burden of proving reasonable excuse upon the spouse who has withdrawn from the
society. The petitioner would first prove his case that the other spouse has withdrawn
from his society without any reasonable cause. The burden would then shift to the other
spouse for the defense of a reasonable excuse.
34. In Sushila Bai v. Prem Narayan 4, the husband deserted his wife and thereafter was totally
unresponsive towards her. This behavior was held sufficient to show that he had
withdrawn from the society of his wife, and therefore the wife’s petition for restitution of
conjugal rights was allowed. The defense to this principle lies in the concept of a
‘reasonable excuse’.

II.3 Devanshi did not leave the Society of Hari.

35. It is humbly submitted that Devanshi on purpose did not leave the society of Hari. After
the baby was born Devanshi had to leave back to USA as her work called for it. On the
other hand, Hari stayed back in India with Vineetha, as he was allowed to work from
home.

36. In Shanti Devi vs Ramesh Chandra 5, the Allahabad High Court took a progressive
approach. It held that during the hardship of employment, if the wife withdraws from her
husband’s company, then this withdrawal is considered a valid withdrawal and comes
under the clout of reasonable excuse. Thus, no decree for restitution was allowed.

37. In India conjugal rights i.e., right of the husband or the wife to the society of the other
spouse is not merely creature of the statute. Such a right is inherent in the very institution
of marriage itself. There are sufficient safeguards in Section 9 of the Hindu Marriage Act
to prevent it from being a tyranny. Also, Section 9 is only a codification of pre-existing
law. Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific
performance for restitution of conjugal rights or for an injunction.6
4
AIR 1986 MP 225
5
AIR 1969 Pat 27
6
Smt. Harvinder kaur v. Harmander Singh Choudhry, A.I.R.
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III. WHETHER DEVANSHI IS ELIGIBLE FOR THE CUSTODY OF THE

CHILD?

38. It is humbly submitted upon this hon’ble court that Devanshi is in fact eligible for the
custody of the new born baby. Surrogacy is defined by law as “a practice whereby one
woman bears and gives birth to a child for an intending couple” and intends to hand over
the child to them after the birth, as per The Surrogacy (Regulation) Act, 2021 (SRA).

III.1 Indented mother is considered as the biological mother of the surrogate child
and there is no rights for the surrogate mother on the baby

39. Once legal parenthood is established, the surrogate has no legal rights to the child and she
cannot claim to be the legal mother. In the same vein, the contract protects the surrogate
from any kind of legal or medical responsibility for the child. The Surrogacy Act and the
Assisted Reproductive Technology Act (“ART Act”) include provisions establishing
criteria for legal surrogacy and assisted reproduction technology (ART), as well as
enumerating a comprehensive set of rights protecting children born through ART.

40. According to Section 8 of the Act, the surrogate child is treated as the biological child of
the intended couple or intended woman, as the case may be, and has the same rights and
privileges as a natural child under the legislation in effect at the time

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.

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41. In India the surrogate is not considered as the legal mother. As per ICMR Guidelines
2005, a surrogate mother cannot be genetically related to the child. She is legally and
psychologically counselled that she will not be having any rights over the child. Her
rights and obligations towards the intended parents as well the child are formulated in the
gestational surrogacy agreement. Moreover, a child born through surrogacy shall be
presumed to be the legitimate child of the intended parents/s and shall have all the legal
rights to parental support, inheritance and all other privileges which a child born naturally
to the intended parents/s would have had.

III.2 Verbal agreement being a valid contract

42. In India, both agreements, whether oral or written are valid and fall under the gambit of
the Indian Contracts Act. In 1991, Delhi High Court held that an oral agreement is valid
and enforceable as a contract in the case of Nanak Builders and Investors Pvt. Ltd Vs.
Vinod Kumar Alag7. The Supreme Court too upheld the validity of oral agreements
in Alka Bose Vs Parmatma Devi & Ors.8
43. In order for an agreement to be valid, there ought to be a valid contract and there ought to
be the following:

III.2.1 A proposal
44. In the current scenario, Hari and Devanshi approaches multiple candidates to be the
surrogate mother, to which everyone denies. But later a proposal was made to Vineetha
as stated in the proposition “After much perusal Hari and Devanshi find a surrogate
candidate that both of them approve of. In February, an artificial fertilization was carried
out on the surrogate mother Ms. Vineetha selected to carry the child.”

III.2.2 Acceptance of said proposal

7
AIR 1991 Delhi 315
8
(Civil Appeal Nos. 6197 of 2000)
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45. Vineetha later agreed to being the surrogate mother which suffices the acceptance part of
the proposal.

III.2.3 Lawful object (which is being dealt with)

46. Surrogacy is legal in India in the form of Gestational Surrogacy and not in the form of
commercial surrogacy, which is the case in our situation. Here Ms, Vineetha is not
receiving any monetary advantage for her service. Hence this agreement is legally valid.

III.2.4 Consideration for the said proposal

47. The question of whether surrogacy fees should be a consideration for the contract would
probably be a major issue under the 1872 Act as, according to s25, agreement without
consideration will be void unless done for. Hari and Vineetha taking care of the
pregnancy expenses will satisfy the consideration part of the agreement.

III.2.5 Both parties having the ability to contract

48. In line with the gender bias that still exists in our society, this Act only allows a legally
married man and woman in India to get a baby through this method, and thus the non-
binary and the same-sex couple are not able to enjoy the parenthood even if they wish to.
The Sections also focus only on a man and a woman which only implies that only
heterosexual couples can enjoy this facility. Given that Hari and Vineetha are
heterosexual partners in the current situation, they are both qualified to sign the contract.
Finally, Vineetha is deemed to have the competency to enter into the contract because she
has agreed to the terms and is a great fit for the arrangement.

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PRAYER

Wherefore, in light of the facts stated, arguments advanced and authorities cited, the Defendants
most humbly pray to the Hon’ble Court to adjudge and declare:

(1) Hari not eligible for Divorce

(2) Enforce Restitution of Conjugal Rights for Devanshi and Hari
(3) And Grant the custody of the child with Devanshi

And grant and pass any other order in favor of the Defendants that the Hon’ble Court may deem
fit in the eyes of equity, justice and good conscience

Sd/-

Counsels on behalf of State

State

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