Calcutta High Court (Appellete Side)
Asok Kumar Chatterjee vs The Union Of India & Ors on 2 September, 2024
Author: Debangsu Basak
Bench: Debangsu Basak
1
FMA 103 of 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
FMA 103 of 2022
With
IA No.: CAN 1 of 2021
Asok Kumar Chatterjee
Vs.
The Union of India & Ors.
For the appellant : Mr. Milan Ch. Bhattacharjee,
Ld. Sr. Advocate
Mr. Gautam Banerjee, Advocate
Ms. Sulagna Bhattacharya, Advocate
For the respondent no.3 : Mr. Rajeev Sharma, Ld. Sr. Advocate
Mr. Anil Kumar Gupta, Advocate
Mr. Yogesh Kumar Sharma, Advocate
Heard & Judgment on : September 2, 2024
DEBANGSU BASAK, J.:-
1. Appeal is directed against an order dated January 19, 2021 passed in
W.P.A. No.4553 of 2020.
2. Learned Senior Advocate appearing for the appellant submits that, the
Signed By :
ABHIJIT DAS
High Court of son of the appellant before his expiry preserved his sperm with the
Calcutta
4 th of September
2024 04:29:34
PM hospital being respondent no.3. The son of the appellant expired on April
FMA 103 of 2022
24, 2018. Subsequent to his death, appellant wanted this sperm from
the respondent no.3. He refers to the correspondence exchanged
between the appellant and the respondent no.3 in this regard.
3. Relying upon (2023) 9 Supreme Court Cases 433 (X vs. Principal
Secretary, Health and Family Welfare Department, Government of
NCT of Delhi and Another), learned Senior Advocate appearing for the
appellant submits that, appellant is entitled to right to reproductive
autonomy which forms part of rights to personal liberty, privacy and
bodily integrity encompassed under Article 21 of the Constitution of
India. He submits that, action of the respondent no.3 in not giving sperm
of the deceased son of the appellant infringes upon the right guaranteed
under Article 21 of the Constitution of India.
4. In response to a query of the Court, learned Senior Advocate appearing
for the appellant submits that, although, the daughter-in-law, that is the
wife of the deceased son of the appellant, remarried subsequent to the
death of the son of the appellant, nonetheless appellant will be in a
position to propagate the family members through surrogacy. In such
circumstances, he invites the Court to take a compassionate view on the
subject.
5. Learned Advocate appearing for the respondent no.3 submits that,
respondent no.3 is not an authority within the meaning of Article 12 of
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ABHIJIT DAS
High Court of the Constitution of India. In any event, he refers to the prayers made in
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4 th of September
2024 04:29:34
PM the writ petition. He submits that, there are private disputes between the
FMA 103 of 2022
appellant and the widow of the deceased son of the appellant who
subsequently remarried.
6. By the impugned order, learned Single Judge found the writ petition not
to be maintainable on the ground that the respondent no.3 is not an
authority within the meaning of Article 12 of the Constitution of India.
7. We perused the writ petition. There is no material pleaded in the writ
petition establishing that the respondent no.3 is an authority within the
meaning of Article 12 of the Constitution of India.
8. In such circumstances, we are unable to return a finding that the learned
Single Judge erred in holding that the writ petition is not maintainable.
9. Right to reproductive autonomy forms the part of the right guaranteed
under Article 21 of the Constitution of India was noted in X vs. Principal
Secretary, Health and Family Welfare Department, Government of
NCT of Delhi and Another (supra). It was rendered in the context of
right to terminate unwanted pregnancy without undue interference of the
State. The same cannot be pressed into service against any private
institution that is not amenable to the writ jurisdiction of the High Court
and that too, in the present facts and circumstances.
10. In such facts and circumstances of the present case, since the appellant
is unable to establish that the respondent no.3 is an authority under
Article 12 of the Constitution of India, we do not find any error in the
Signed By :
ABHIJIT DAS
High Court of impugned order of the learned Single Judge.
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4 th of September
2024 04:29:34
PM
FMA 103 of 2022
11. That apart, there is an issue of existence of disputes between the private
parties. In the writ petition, appellant seeks a direction on the widow of
his son to give no objection to the user of the sperm.
12. In the appeal, the appellant wants the sperm of his deceased son to be
returned for the purpose of a child being born through surrogacy.
Apparently, there are disputes between the private parties which the Writ
Court need not enter into.
13. In such circumstances, we do not find any merit in the present appeal.
14. FMA 103 of 2022 along with IA No.: CAN 1 of 2021 are dismissed
without any order as to costs.
(Debangsu Basak, J.)
15. I Agree.
(Md. Shabbar Rashidi, J.)
(AD)
Signed By :
ABHIJIT DAS
High Court of
Calcutta
4 th of September
2024 04:29:34
PM
