Mother’s Love And Affection Wouldn’t Be Less Merely Coz Child Was Born Out Of Surrogacy: Delhi HC [Read Judgment]

Court said today women are socializing but does not mean they are failing in maternal obligations, visiting psychologist not a taboo.

 While trying to secure the interest and welfare of a minor child caught between warring parents, the Delhi High Court remarked that the love and affection that a mother has for a child would be no less merely because the child was born out of surrogacy and holding otherwise would be devaluing the great qualities of love and bonding experienced not only by human beings but all animal species.

A bench of Justice Vipin Sanghi and PS Teji said so while deciding the writ petition moved by a woman, a socialite and a dermatologist, seeking direction to her estranged husband to produce minor daughter in the court and to set her at liberty in her custody.

During the hearing in the petition, the petitioner’s husband submitted that she does not have affection for their 1-year-old daughter since she was born out of surrogacy.

To this, the bench noted thus:

“The child in question is a one-year-old baby girl. Though, she was born out of surrogacy – since the petitioner suffered two earlier miscarriages, she is nevertheless the biological mother of the petitioner child, and respondent No.4 is the biological father of the child. Thus, it is only natural that the petitioner and respondent No. 4 – and their respective family members, hold love and affection in their hearts for the minor child. We cannot accept the submission of respondent No.4 that the petitioner though being the biological mother of the minor child, would have any less love or affection for her since the minor child was born out of surrogacy. The said submission of learned counsel for Respondent No.4 cannot be accepted for various reasons. Firstly, the minor child is the biological child of the petitioner and respondent No.4 and the sense of belonging, love and affection that the petitioner would hold for the minor child would be no less, merely because minor child was born out of surrogacy.” 

“If this submission of respondent No. 4 were to be accepted, it would also mean that respondent No. 4 would not hold the same love and affection for the minor child, as he would have held and experienced, for a child born to him from his wife i.e., the petitioner, naturally. Secondly, even in respect of an adopted child, the parents, by and large, express and feel the same sense of love and affection with equal intensity as they would feel in respect of their naturally born child. The submission of the respondent No.4, in our view, devalues the great qualities of love and bonding that are experienced not only by human beings but all animal species,” the bench added.

Allegations of adultery, psychiatric therapy for depression

The father of the minor also raised concerns that the petitioner is a psychiatric patient and is taking treatment for depression and that she is busy professionally and socially and indulges in partying routinely, consumes alcohol and has extra-marital affair leaving no time for the child.

To this, the bench said, “In our view, the professional and social obligations and activities of the mother need not necessarily have an adverse impact on the upbringing and safety of the minor child. In today’s day and age, women are actively pursuing their professions and avocations. They are also socializing as their peers, friends, family and colleagues. That does not mean that they are necessarily failing in performance of their maternal obligations. In fact, working women are, by and large, having to put in extra time and effort to keep both ends up, and they are doing it successfully. The child is an infant. At this age, the child has little understanding of the actions and conduct of the parents, particularly, those acts and conduct which take place outside the child’s environment”.

“In the present case, there is only an allegation of the petitioner indulging in adultery, which is premised on – what is claimed to be, the WhatsApp communication exchanged between her and one of her lady friends. The aspects of admissibility of WhatsApp conversation; the weight attached to be such conversations – which is described by learned counsel for the petitioner as being similar to ‘Locker Room Talk’ between men; and other related issues, would arise for consideration in appropriate proceedings. In these proceedings, we are not inclined to delve into the same,” the bench said.

On the allegation of the woman petitioner visiting psychologist, the bench noted as under:

“Our interaction with the petitioner does not give us the impression that she is mentally or psychiatrically unstable to look after the minor child at this stage. The reasons for her seeking help of counselors could be manifold. It is not uncommon for people to resort to counseling when they have matrimonial disputes. She has had two miscarriages earlier. In today’s day and age, when one is faced with stress originating from different aspects of life, one may seek professional help from a trained counselor to resolve one’s dilemmas, and reduce his or her stress.

“It is no longer a taboo in our society to consult a psychotherapist, or a psychiatrist, or a counselor, as it was in the earlier days. Merely because a person may go for such like therapy and consultation, it does not follow that the person does not possess mental equilibrium, or is mentally unsound. Such trained professionals are becoming more relevant in today’s day and age, considering the fact that the families are smaller, and one may not have siblings and other elders in the family readily available to talk to, and discuss private and personal issues”.

In the instant case, the minor child was with her paternal grandparents in Dubai at the time of filing of the writ petition.

The grandparents had taken the child to Dubai with mother’s consent. The petitioner was supposed to join them in Dubai. However, when she went to Dubai, she was not allowed to meet the daughter and returned to Delhi and filed the writ petition.

The child was brought to Delhi pursuant to court order dated February 8 and was in custody of her father.

During the hearing, when the estranged husband sought an adjournment in March, the bench said he would have to give the custody of the minor to the mother in the interregnum, without prejudice to his right.

Eventually, he produced the infant child who was handed over to the petitioner subject to the certain conditions.

The court made a temporary arrangement wherein the child will be left with the paternal grandparents from 2 pm to 7 pm on weekdays and on Saturdays.

The Supreme Court, in this case, had directed the court to dispose of the petition by May 10 since it involved a minor child.

The high court made it clear that the custody issues and other issues will have to be decided by the competent court.

Read the Judgment Here