Kerala High Court
Union Of India vs Remya Remesh on 25 June, 2025
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WA NO. 1331 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 25TH DAY OF JUNE 2025 / 4TH ASHADHA, 1947
WA NO. 1331 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 19.12.2022 IN WP(C) NO.35582
OF 2022 OF HIGH COURT OF KERALA
APPELLANT(S)/1ST RESPONDENT:
UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HEALTH AND FAMILY WELFARE,
SASTHRI BHAVAN, NEW DELHI, PIN - 110001
BY ADVS
SMT.SINDHUMOL.T.P.
SRI.ARJUN VENUGOPAL. K
RESPONDENT(S)/PETITIONERS AND RESPONDENTS 2-4:
1 REMYA REMESH
AGED 40 YEARS
WIFE OF AJITH KUMAR V S,
'VETTARMADATHIL', KUDAYATHOOR,
IDUKKI, PIN - 685590
2 AJITH KUMAR V S
AGED 59 YEARS
SON OF SANKARA PILLA,
'VETTARMADATHIL', KUDAYATHOOR,
IDUKKI, PIN - 685590
3 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
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2
4 THE DISTRICT REPRODUCTIVE & CHILD HEALTH ("RCH") OFFICER
DISTRICT MEDICAL OFFICE, ERNAKULAM, PARK EVE, MARINE
DRIVE, ERNAKULAM, KERALA, PIN - 682011
5 SABINE HOSPITAL AND RESEARCH CENTRE PVT. LTD,
REPRESENTED BY ITS MANAGING DIRECTOR, PEZHAKKAPPALLY PO,
MUVATTUPUZHA, PIN - 686673
BY ADV SRI.T.K.VIPINDAS - (SR.GP)- R3, R4
THIS WRIT APPEAL HAVING BEING HEARD ON 20.06.2025, THE COURT ON
25.06.2025 DELIVERED THE FOLLOWING:
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3
JUDGMENT
SUSHRUT ARVIND DHARMADHIKARI,J.
The present intra court appeal under Section 5 of
the Kerala High Court Act, 1958 has been filed assailing the
order dated 19.12.2022 passed in W.P.(C)No.35582/2022 by the
single Judge who had allowed the writ petition along with
certain directions.
2. The writ petition was filed by respondents 1 and
2 herein who are married couples undergoing or intending to
undergo assisted reproductive services, driven by the desire
to have children. They had challenged the upper age limit of
50 years for women and 55 years for men prescribed under the
Assisted Reproductive Technology (Regulation) Act, 2021('the
ART Act' for short), which prohibits the application of ART
services to persons above the prescribed age limit.
According to the writ petitioners, the prescription of the
upper age limit under Section 21(g) of the ART Act is
irrational, arbitrary, unreasonable and in violation of
their right to reproduction, which is acknowledged as a
fundamental right. Therefore, the provisions of Section
21(g) of the ART Act, to the extent prescribes an upper age
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limit for availing assisted reproductive technology
services, be declared as unconstitutional.
3. The learned single Judge, while disposing of the
writ petition, issued certain directions which are as under;
"(i) Those among the petitioners who were
undergoing ART services as on 25.01.2022
shall be permitted to continue their
treatment.
(ii) The National Board shall alert the
Central Government about the need for having
a re-look at the upper age limit prescribed
in Section 21(g) of the Act.
(iii) The National Board shall also bring to
the notice of the Central Government the
requirement of including a transitional
provision in the ART Act.
(iv) The above directions shall be complied
by the National Board within three months of
receipt of a copy of this judgment.
(v) Those among the petitioners who are yet
to commence their ART treatment shall await
the decision of the Central Government on
the upper age limit and the transitional
provision.
(vi) The liberty of the petitioners to
approach this Court at a later stage, if so
necessitated, is reserved."
I place on record my appreciation for the
immense help rendered by the learned amicus
curiae.
4. From perusal of the aforesaid directions, it can
be very well seen that the learned single Judge did not
touch the merits of the case or the validity of the
provisions, that is, Section 21(g) of the ART Act, however,
issued the aforesaid directions which appear to be just and
proper.
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5. The appellant-Union of India has filed the
present writ appeal with a huge delay of 864 days in filing
the appeal, against the Judgment dated 19.12.2022 in W.P.
(C)No.35582/2022.
6. The appellant had filed C.M.Application No.1/2025
seeking condonation of delay under Section 5 of the
Limitation Act.
7. On going through the application, it is found
that instead of giving day to day explanation for the huge
delay, the appellant has discussed the merits of the case in
the application. The only reason assigned for the delay is
that due to introduction of ART Act and Surrogacy Act, many
persons filed writ petitions in various High Courts across
the country and also before the Hon'ble Apex Court. The
strength of the Department of Health Research is very small,
and it has only 30 regular employees in place. There is no
exclusive legal division to handle around 300
cases/petitions pertaining to the ART and Surrogacy Act.
Therefore, due to such an influx of court cases,
considerable time was lost and an appeal could not be filed
within time. It is further stated that the delay was caused
soley due to the reasons mentioned in the application which
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were outside the control of the appellant and was not
deliberate. In view of the aforesaid, the delay may be
condoned and the writ appeal may be heard on merits.
8. The learned counsel for the appellant further
contended that the delay is genuine, which has been caused
due to procedural formalities and the same is bona fide on
the part of the appellant.
9. The learned counsel for the appellant/Union of
India, in support of their contentions, placed reliance on
the judgment of the Apex Court passed in the case of State
of Haryana Vs. Chandramani and Others reported in [(1996) 3
SCC 132] wherein it has been held as under:-
"When the State is an applicant, praying
for condonation of delay, it is common knowledge
that on account of impersonal machinery and the
inherited bureaucratic methodology imbued with
the notemaking, file-pushing, and passing-on-the-
buck ethos, delay on the part of the State is
less difficult to understand though more
difficult to approve, but the State represents
collective cause of the community. It is
axiomatic that decisions are taken by
officers/agencies proverbially at slow pace and
encumbered process of pushing the files from
table to table and keeping it on table for
considerable time causing delay intentional or
otherwise - is a routine. Considerable delay of
procedural red tape in the process of their
making decision is a common feature. Therefore,
certain amount of latitude is not impermissible.
If the appeals brought by the State are lost for
such default no person is individually affected
but what in the ultimate analysis suffers, is
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public interest. The expression "sufficient
cause" should, therefore, be considered with
pragmatism in justice-oriented approach rather
than the technical detection of sufficient cause
for explaining every day's delay."
10. We are well aware of the fact that in the
government various approvals had different stages that were
required to be taken, but that does not mean that the law
with regard to limitation is different for the government.
The reason assigned is absolutely frivolous, no day-to-day
explanation has been provided for the delay.
11. Per contra, the learned Senior Government
Pleader for respondents 3 and 4 opposed the prayer and
submitted that, in view of the settled legal principles of
law, the delay and laches in filing the writ
petitions/appeals cannot be brushed aside, otherwise, the
same would amount to reviewing a dead/stale claim. Various
judgments have been passed by Apex Court which are as
under:-
(i) In the case of Postmaster General & Ors. Vs.
Living Media India Ltd. & Anr. reported in (2012) 3
SCC 563, it is held that merely because the Government
is involved, different yardsticks cannot be laid down for
condoning the delay. The SLPs dismissed due to delay of
427 days.
(ii) In the case of State of Madhya Pradesh And
Others Vs. Bherulal reported in (2020)10 SCC 654,
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the Apex Court has held that unavailability of documents
and the process of arranging the documents and
bureaucratic process works cannot be a ground to
condone the delay in filing of an appeal by the State.
The delay of 663 days was not condoned and the SLP
was dismissed with a cost of Rs. 25,000/-. In the case of
State of M.P. & Anr. Vs. Chaitram Maywade
reported in (2020)10 SCC 667, it was held that the
Law Department took 17 months in permitting filing of
SLP. Officers responsible cannot just sit on the files and
delay its filing. The SLP was dismissed with a cost of Rs.
35,000/- as delay of 588 days has occurred.
(ii) In the case of Govt. of India Vs. Md Wasim Akram
in SLP (Cri) Diary No. 10760/2020, although it was a
good case on merits, the threshold bar of delay and
laches cannot be ignored. SLP was dismissed with a cost
of Rs.25,000/- for a delay of 254 days.
12. In the present appeal, there is a delay of 864
days. In the application seeking condonation of delay, no
plausible explanation has been put forth by the
appellant/Union of India for such a huge delay, therefore,
the present appeal suffers from inordinate delay and laches
and therefore the same is liable to be dismissed.
13. Whilst, it is true that limitation does not
strictly apply to the proceedings under Article 32 or 226 of
the Constitution of India, nevertheless such rights cannot
be enforced after an unreasonable lapse of time.
Consideration of unexplained delays and inordinate laches
would always be relevant in writ actions and writ Courts
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naturally ought to be reluctant in exercising their
discretionary jurisdiction to protect those who have slept
over wrongs and allowed illegalities to fester. Fence
sitters cannot be allowed to barge into Courts and cry for
their rights at their convenience and vigilant citizens
ought not to be treated alike with mere opportunists. On
multiple occasions, it has been restated by the Apex Court
for there are implicit limitations of time within which writ
remedies can be enforced.
14. In the case of S.S. Balu Vs. State of Kerela
[(2009) 2 SCC 479] the Apex Court has observed that " it is
also well-settled principle of law that "delay defeats
equity....." It is now a trite law that where the
petitioner/appellant approaches the High Court after a long
delay, reliefs prayed for may be denied to them on the
ground of delay and laches.
15. In view of the aforesaid pronunciation of law
and the fact that the delay has not been properly explained,
C.M.Application No.1/2025 seeking condonation of delay is
hereby rejected. Even on merits, if at all it is considered,
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the learned Single Judge has not touched the validity of
Section 21(g) of the ART Act; instead, he has issued certain
directions to the appellant, on which they are required to
take a just and proper decision.
Consequently, the writ appeal also stands dismissed.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
rkr
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PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE RELEVANT EXTRACT OF REPORT NO.
129 OF DEPARTMENT RELATED PARLIAMENTARY
STANDING COMMITTEE DATED 19.3.2021
Annexure A2 A TRUE COPY OF THE EMAIL DATED 19.01.2023
SHARING THE MINUTES OF VIRTUAL MEETING HELD ON
18.01.2023 OF EXPERT MEMBERS OF NATIONAL BOARD
Annexure A3 A COPY OF THE LETTER NO.U.11021/01/2023-HR
DATED 09.03.2023 ALONG WITH ITS ANNEXURE
Annexure A4 A TRUE COPY OF THE LETTER BEARING NO.
U.11021/01/2023-HR (PART-I) DATED 31.3.2023
ISSUED BY THE CENTRAL GOVERNMENT TO THE
PRINCIPAL SECRETARY (HEALTH) OF ALL STATES AND
UNION TERRITORIES
Annexure A5 A TRUE COPY OF THE INTERIM ORDER DATED
06.08.2024 PASSED IN WRIT APPEAL NO. 696 OF
2024 AND CONNECTED CASES
