RAJITHA Vs. UNION OF INDIA

JUDGEMENT

(1.) The 1st petitioner is the wife of the 2nd petitioner. The 1st petitioner was born on 21/6/1978 and is 46 years of age, while the 2nd petitioner was born on 21/11/1972 and is 52 years old. The petitioners are issueless. The petitioners underwent several cycles of treatment utilising the Assisted Reproductive Technology, but did not yield the expected results. Hence, the petitioners are eligible to avail surrogacy services. The petitioners have identified a surrogate mother who has consented to assist them in conceiving a child. The jurisdictional Magistrate has passed Ext.P8 order declaring that the parentage and custody of the child born through the surrogate mother would vest with the petitioners. Accordingly, the petitioners approached the 3rd respondent Board for an eligibility certificate as provided under Sec. 4(c) of the Surrogacy (Regulation) Act, 2021 ("Act", for brevity). However, the 3rd respondent has orally declined to issue the eligibility certificate because the 1st petitioner has attained 50 years. Sec. 4(c)(I) of the Act lays down the age limit for both males and females seeking surrogacy services. The provision specifically states that females between the ages of 23 and 50 years and males between the ages of 26 and 55 years, on the date of certification, are entitled to an eligibility certificate. Under Sec. 9 of the General Clause Act, the inclusion of the term "to" in any central act or regulation is deemed sufficient to encompass the purpose of including the last in the series of days or any other period of time. Given the conscious usage of the word "to" in Sec. 4 (c)(I) of the Act, the age limits of 50 years for females and 55 years for males shall be interpreted as extending until the previous day of attaining the ages of 51 and 56. Therefore, the 1 st petitioner, who has just completed the age of 50 years as per Ext.P9 document, is eligible to partake in the surrogacy process. Hence, this Court may declare that the petitioners would fall within the age limit prescribed under Sec. 4(c) (I) of the Act, and the 3rd respondent may be directed to issue the eligibility certificate.

(2.) Heard; Smt. Safa Navas, the learned counsel for the petitioners, Smt. Vidya Kuriakose, the learned Government Pleader and Sri. R.V. Sreejith, the learned Central Government Counsel.

(3.) The learned counsel for the petitioners strenuously argued that as the words used in Sec. 4 (c)(I) of the Act are between 23 to 50 years and 26 to 55 years, in the cases of females and males, respectively, and in view of Sec. 9 of the General Clauses Act, the 1st petitioner is entitled to an eligibility certificate till the previous day she attains 51 years. The learned counsel relied on the decisions of the Hon'ble Supreme Court in Tarun Prasad Chatterjee v. Dinanath Sharma [(2000) 8 SCC 649] and Shashikala and others v. Gangalakshmamma and another [(2015) 9 SCC 150] and the decisions of this Court in P.O.Meera and another v. Ananda P.Naik and others (2022 (1) KHC 591) and National Insurance Company Limited, Kollam v. Prashanth (died) and others (2024 (7) KHC 621) to substantiate her contentions.