Kerala High Court
Rajitha P.V vs Union Of India on 13 February, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:11881
W.P (C) No.403 of 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
WP(C) NO. 403 OF 2025
PETITIONERS:
1 RAJITHA P.V
AGED 46 YEARS
W/O SANTHOSH M., PALLATH VEETIL, VALIYANNUR P.O,
VARAM, KANNUR DISTRICT., PIN - 670594.
2 SATHOSH M.
AGED 52 YEARS
S/O NARAYANAN M., PALLATH VEETIL, VALIYANNUR P.O,
VARAM, KANNUR DISTRICT., PIN - 670594.
BY ADVS.
ADITHYA RAJEEV
S.PARVATHI
SAFA NAVAS
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH
AND FAMILY WELFARE, SASTHRI BHAVAN, NEW DELHI.,
PIN - 110001
2 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH
AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001.
3 THE KERALA STATE ASSISTED REPRODUCTIVE TECHNOLOGY
AND SURROGACY BOARD
REPRESENTED BY ITS CHAIRPERSON, DISTRICT HEALTH
SERVICES,GENERAL HOSPITAL JUNCTION,
THIRUVANANTHAPURAM, PIN - 695035
BY ADV R.V. Sreejith
OTHER PRESENT:
DSG1 SRI T C KRISHNA
GP SMT VIDYA KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.02.2025, THE COURT ON 13.02.2025 DELIVERED THE
FOLLOWING:
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W.P (C) No.403 of 2025
2
"C.R"
C.S.DIAS, J.
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WP(C) No. 403 of 2025
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Dated this the 13th day of February, 2025
JUDGMENT
The 1st petitioner is the wife of the 2nd petitioner. The 1st
petitioner was born on 21.06.1978 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
Section 4(iii)(c) of the Surrogacy (Regulation) Act, 2021 ("Act", for
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rd
brevity). However, the 3 respondent has orally declined to issue
the eligibility certificate because the 1st petitioner has attained 50
years. Section 4(iii)(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 Section 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 Section 4(iii)(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 1st 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 Section
4(iii)(c) (I) of the Act, and the 3rd respondent may be directed to
issue the eligibility certificate.
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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 Section 4(iii) (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 Section 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.
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4. The learned Government Pleader opposed the above
writ petition. She submitted that in the 1st petitioner's Aadhar card,
passport and driving license (Exts.P2 to P4), her date of birth is
21.06.1978. However, in the 1st petitioner's school admission
register, which is the relevant document, her date of birth is
21.06.1974. Therefore, the 1st petitioner has completed the age of
50 years. It was in the said situation that the 3rd respondent had
refused to issue the eligibility certificate. She also refuted the
contention of the learned counsel for the petitioners that a female
continues to be 50 years and is eligible till the previous day of
attaining the age of 51. She argued that the General Clauses Act
deals with the computation of time and not the calculation of age.
She drew the attention of this Court to the decision of the Hon'ble
Supreme Court in Tarun Prasad Chatterjee v. Dinanath
Sharma's case and the decisions of this Court in Jaison V.
George v. State of Kerala [2019 (5) KHC 115] and the Mysore
High Court in G. Vatsala Rani v. Selection Committee for
Admission to Medical Colleges [AIR 1967 Mys 135] in support
of her contention that a person would attain a specified age on
the day preceding the anniversary of his birthday. She prayed
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that the writ petition be dismissed.
5. The point is whether the first petitioner is entitled to an
eligibility certificate to have a surrogate child after attaining 50
years of age.
6. It is apposite to refer to Section 4 (iii)(c) of the
Surrogacy (Regulation) Act, 2021, which reads as follows:
"(c) an eligibility certificate for intending couple is issued separately
by the appropriate authority on fulfilment of the following conditions,
namely:--
(I) the intending couple are married and between the
age of 23 to 50 years in case of female and between 26 to 55
years in case of male on the day of certification;
(II) the intending couple have not had any surviving child
biologically or through adoption or through surrogacy earlier:
Provided that nothing contained in this item shall affect the intending
couple who have a child and who is mentally or physically
challenged or suffers from life threatening disorder or fatal illness
with no permanent cure and approved by the appropriate authority
with due medical certificate from a District Medical Board; and
(III) such other conditions as may be specified by the
regulations".
(highlighted)
7. The above provision stipulates that an intending couple
desirous of having a child via surrogacy would be entitled to an
eligibility certificate, provided the intending couple is married and
the female is within the age range of 23 to 50 years and the male
is between 26 to 55 years on the day of certification.
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8. In the case at hand, as per Ext.P9 admission register,
the 1st petitioner's date of birth is 21.06.1974, thereby indicating
that she has attained 50 years.
9. The crux of the argument put forth by the learned
counsel for the petitioners rests on the interpretation of the words
used in Section 4(iii) (c) (I) of the Act, which specifies the age limit
for females as "between the age of 23 to 50 years" . The learned
Counsel contends that in the light of Section 9 of the General
Clauses Act, the 1st petitioner continues to be 50 years till the
previous day of her 51st birthday.
10. Section 9 (1) of the General Clauses Act states as
follows:
"9. Commencement and termination of time.-- (1) In any [Central Act]
or Regulation made after the commencement of this Act, it shall be
sufficient, for the purpose of excluding the first in a series of days or
any other period of time, to use the word "from", and, for the purpose
of including the last in a series of days or any other period of time, to
use the word "to".
11. A careful examination of the above provision reveals that
it pertains to the commencement and termination of time rather
than the calculation of age.
12. The learned Counsel for the petitioner relied on the
decisions in Tarun Prasad Chatterjee and Shasikala's cases to
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support her assertion that the 1st petitioner will continue to be
considered as a person of 50 years old until the preceding day of
her 51st birthday. It is pertinent to note that Tarun Prasad's case
dealt with the interpretation of Section 9 of the General Clauses
Act, 1897, in relation to the computation of the limitation period
under Section 81(1) of the Representation of People Act, 1951,
which has no relevance to the present case. Whereas, the
decision in Shasikala's case was rendered in the context of
determining the relevant multiplier for calculating compensation in
motor accident cases as per the principles laid down by the
Hon'ble Supreme Court in Sarla Verma and others v. Delhi
Transport Corporation and another [(2009) 6 SCC 121]. In
Sarla Verma's case, the multiplier system was adopted for death
and injury claims, categorising the deceased/injured into ten age
groups: 16-20, 21-25, 26-30, 31-35, 36-40, 41-45, 46-50, 51-55,
56-60 and 61-65. In this context, the Supreme Court stated that
the multiplier would shift to the subsequent age category once the
deceased/injured attained the age corresponding to that category.
Following the principles in Shashikala's case, this Court rendered
the decisions in P.O. Meera and Prashanth's cases. However,
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the petitioner cannot draw an analogy to the above principles in
the instant case. Section 4 (iii)(c) (I) of the Act explicitly specifies
the age limit for females as "between the age of 23 to 50 years",
with no transition to a subsequent age category as in the
multiplier method in Sarla Verma.
13. Section 4 of the Indian Majority Act, 1875, deals with
how the age of majority is to be computed. It reads:
"4. Age of majority how computed.--In computing the age of any person,
the day on which he was born is to be included as a whole day, and he shall
be deemed to have attained majority, if he falls within the first paragraph of
Section 3, at the beginning of the twenty-first anniversary of that day, and if he
falls within the second paragraph of Section 3, at the beginning of the
eighteenth anniversary of that day."
The above section embodies that, in calculating an individual's
age, the day the person was born is counted as a whole day, and
he is deemed to have attained majority at the start of his
eighteenth anniversary day.
14. The above legal position has been lucidly explained
by the Hon'ble Supreme Court in Prabhu Dayal Sesma v. State
of Rajasthan and another [(1986) 4 SCC 59], which reads as
follows:
"9. ...... ......... .......... In calculating a
person's age, the day of his birth must be counted as a whole day, and he attains
the specified age on the day preceding the anniversary of his birthday. We have to
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apply well accepted rules for computation of time. One such rule is that fractions
of a day will be omitted in computing a period of time in years or months in the
sense that a fraction of a day will be treated as a full day. A legal day commences
at 12 o'clock midnight and continues until the same hour the following night. There
is a popular misconception that a person does (sic not) attain a particular age
unless and until he has completed a given number of years. In the absence of any
express provision, it is well settled that any specified age in law is to be computed
as having been attained on the day preceding the anniversary of the birthday.
*** *** *** ***
***
12. In Re Shurey Savory v. Shurey [LR (1918) 1 Ch 263] the question that
arose for decision was this: Does a person attain a specified age in law on the
anniversary of his or her birthday, or on the day preceding that anniversary? After
reviewing the earlier decisions, Sargant. J. said that law does not take cognizance
of part of a day and the consequence is that person attains the age of twenty-one
years or of twenty-five years, or any specified age, on the day preceding the
anniversary of his twenty-first or twenty-fifth birthday or other birthday, as the case
may be.
15. The Honourable Supreme Court has followed the view
in Prabhu Dayal Sesma's case in Earati Laxman v. State of
Andhra Pradesh [2009 (3) SCC 337] while interpreting the
provisions of the Majority Act and has reiterated that a person
attains a particular age at midnight on the day preceding his
birthday anniversary.
16. In Jaison V. George's case, this Court addressed the
question of whether a person would attain 18 years of age only
on the previous midnight of his 19 th birthday in a matter arising
under the Juvenile Justice (Care and Protection of Children) Act,
2015. This Court concluded that a person would attain 18 years
on the day preceding his 18th birthday anniversary.
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17. The law has, therefore, crystallised that a person attains
a specified age on the day preceding his birthday anniversary.
18. In the light of the interpretations under Section 4 of the
Indian Majority Act, a statute that precisely deals with the
computation of age, there is no doubt that a female who attains
the age of 23 would become eligible to have a surrogate child
and becomes ineligible on the preceding day her 50 th birthday
anniversary. The terms 'between" and "to" used in Section 4(iii)
(c) (I) of the Act reflect a restriction indicating that a female can
have a surrogate child only after attaining the age of 23 years and
before completing the age of 50 years, with a similar restriction
for males aged between 26 to 55. If the petitioners' contention is
accepted, the minimum age limits will be stretched to the
previous days of the 24th and 27th birthday anniversary, and the
maximum ages will be extended till the preceding day of the 51 st
and 56th birthday. It is not for this Court to extend the age limits
fixed by the legislature by exercising its extra-ordinary
jurisdiction. It is reasonable to presume that the legislature has
imposed these age restrictions, considering the normal age that
women conceive a biological child. If the petitioners interpretation
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is accepted, it would extend age criteria set forth in various
statutes, particularly in service law, by an additional year.
Furthermore, the petitioners have not challenged the vires of the
age fixation in the Act.
Considering the facts and the legal principles, this Court is
of the view that the 3rd respondent has rightly concluded that the
1st petitioner is ineligible for an eligibility certificate under Section
4(iii) (c) of the Act since she has attained the age of 50 years.
Consequently, the petitioners' prayer to declare that the 1st
petitioner is eligible for an eligibility certificate is rejected.
Accordingly, the writ petition is dismissed.
sd/-
C.S.DIAS, JUDGE
rkc/13.02.25
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APPENDIX OF WP(C) 403/2025
PETITIONERS EXHIBITS
Exhibit-P1 A TRUE COPY OF THE CERTIFICATE OF
MARRIAGE OF THE PETITIONERS DATED
07.03.2008 ISSUED BY THE REGISTRAR OF
MARRIAGES, KANNUR CORPORATION
Exhibit-P2 A TRUE COPY OF THE AADHAR CARD OF THE
1ST PETITIONER
Exhibit-P3 A TRUE COPY OF THE RELEVANT PAGE OF THE
PASSPORT OF THE 1ST PETITIONER
Exhibit-P4 A TRUE COPY OF THE INDIAN UNION DRIVING
LICENSE OF THE 1ST PETITIONER ISSUED BY
THE GOVERNMENT OF KERALA
Exhibit-P5 A TRUE COPY OF THE AADHAR CARD OF THE
2ND PETITIONER
Exhibit-P6 A TRUE COPY OF THE CERTIFICATE OF
MEDICAL INDICATION FOR INTENDING COUPLE
DATED 25-08-2023 ISSUED BY THE DISTRICT
MEDICAL OFFICER, THRISSUR
Exhibit-P7 A TRUE COPY OF THE CERTIFICATE OF
MEDICAL AND PSYCHOLOGICAL FITNESS OF THE
SURROGATE MOTHER DATED 08-10-2024 BY THE
ASSISTANT SURGEON, KAP 1ST BATTALION,
THRIPUNITHARA
Exhibit-P8 A TRUE COPY OF THE ORDER DATED 19-10-
2024 IN CRL.M.P NO,8439/2024 BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-I,
THRISSUR
Exhibit-P9 A TRUE COPY OF THE EXTRACT OF ADMISSION
REGISTER OF VARAM U.P SCHOOL PERTAINING
TO THE 1ST PETITIONER
